C&P exam wrong back in 2005

[mwillis71]

So back in 2005 when I seperated from the service, I had no idea how this process worked. I was lucky enough to have someone when I out-processed tell me to submit my medical records to the VA. When I was called in for exams, I had no idea why I was even there. It turns out that they denied me for a couple issues that were clearly service connected. Now that I know how this process works, I went back and reviewed my decision letter. The examiners claimed that I denied right foot pain and denied anxiety depression. Like I said, I had no idea why I was even there. However, I don't recall ever denying the foot pain or anxiety/depression. I reapplied in 2015 for anxiety/depression and was awarded 70%. My question is, can I submit something that would deny ever saying that those issues (foot, anxiety, depression) were currently affecting me. I know I never said that. I just didn't make it real clear and I never signed anything denying it. What can I do? I have all of the medical records and proof from my military medical records still. 

[FormerMember]

Let's cut to the chase. There is no CUE here. A subcontractor/clinician from QTC/VES/LHI has been trained to ask you when you come in for a c&p : "How are you today?" Most folks will answer neutrally or say something to the effect that they are "Fine, and you?" This is a pleasantry normal people exchange with one another. VA, however, will always weaponize it to extrapolate it to mean you are stating you are fine and denying anything is wrong with you. I've been watching this phenomenon ever since it happened to me in 1989. VA has a finite bag of tricks to deny with. They can legally say that you went to a psych c&p and no diagnosis was rendered of a mental disorder or your claimed disability of ________________ (fill in the blank). Right there at that point if you had obtained a private nexus letter (IMO) from a shrink saying you had bent brain syndrome, you would have prevailed. Ditto right foot pain.

But, as you say, you did not know how the dog and pony show worked back then. Most Vets didn't and still don't. You didn't appeal and that was fatal to revisiting this denial now in 2022. As Berta pointed out, you can never argue how the evidence was decided in CUE. As for §3.156(c), do you have relevant medical records which show a real, bonafide dx of MDD while in service which has never been made a matter of record? If not, that theory goes down the drain. 

Anxiety/GAD/ PTSD/MST/Bipolar etc. are a group of major depressive disorders (MDD) adjudicated under §4.130. Pyramiding prevents an award for each one. There are 31 different forms of MDD. As with all claims, I almost always find that someone "diagnosed" a Vet w/ MDD in-say 2005. But the diagnosis was done by someone with a MHS (mental health specialist) "degree" after their name. No dice. It has to be a psychologist with a real degree in psychotherapy-not a six month degree out of a Crackerjacks box. They'll have Psy.D after their name. 

I think everyone reading this knows you got screwed. The repair order is extremely limited. You say you got the 70% in 2015. Unless you're still litigating that as an active justiciable appeal, it, too, is a final decision which could only be overturned by a clear and  unmistakable error of law. I've had claimants say at a c&p that they think they got Hep. C from a jetgun. Bad idea. You are not a doctor so that is off limits. But what you will often see is the clinician state that you admitted to a history of illicit drug use and that explains it. Of course you didn't say that but how do you negate that statement? It's too late. Sure, VA is not allowed to do it but they do. That's why Theresa invented this gig. We teach you how not to step on your necktie. In your case, I think that ship has already sailed but without a review of the claims file, it's impossible to say with any certainty.

One trick I've learned to reopen these as a §3.156(c) claim is to go back to the NPRC and ask for any "inpatient records" if you were ever admitted to a military hospital. These records are kept separate in another building at NPRC and are almost never included in any SF 180 request. I went back three times and got a new tranche of records each time. If any of these are pertinent to your 2005 claims, then you can get a can opener into an earlier effective date. It's perfectly legal to get a retrospective IMO and have a dr. opine as to what  your mental state was back then when you're doing a §3.156(c) claim.  

Best of luck.

 

[Lemuel]

My BVA Judge's de novo review found the attached previously unprocessed "request consideration for additional compensation" got me an EED for TDIU from 2009 back to 1985 based upon my record.

3 hours ago, mwillis71 said:

Hey Vync,

 

That is the one from 2005 and no, they listed it as non service connected. I don't really have a ton of medical records from 2005-2010 because I was going to college and didn't have insurance. When I finished my masters degree and got a job, I did begin getting treated again. One thing that I could definitely use is the fact that I had a pretty bad addiction due to the anxiety/depression/ptsd during that time and it is documented. 

If your record supports it, you should put in the special request.  There are numerous references in 38 CFR for submission of a requesting consideration for additional compensation, including being poverty stricken even, to the Director Compensation Services.  I am also attaching a redacted copy of the Director's letter that got the DRO to make the EED TDIU award.

It appears to me this is the best way to address EED issues.  The director can specify the date the records show the disability.  That would include family, employers' or teachers' statements about your addiction.  It took 8 days from the Director's opinion to the DRO Decision.  Another 3 months to payment because it entailed going back to schedules that were no longer online in the accounting department.

Note:  The date went back 2 years before the claim and therefore I presume an EED is established by the Director according to the record.  A Central Office DRO has to do due diligence in sending the file up to the Director's office.  No mistake will be made because the decision is appealable, and the Director does not like to lose appeals.

3711 19870624 TDIU claim_Redacted.pdf 20200408 - TDIU Review - Admin Opinion_Redacted.pdf

Edited February 28, 2022 by Lemuel

[Berta]

WOW Lemeul!!!!!! 

Thanks for posting those attachments!  Double triple WOW!!!!!!!!!!!

[Lemuel]

Thanks, Berta.

I forgot to mention that the way the DRO level negates a "claim requesting additional compensation" is by ignoring it.  Be prepared to submit an appeal if it is not processed within the 180-day limit set by the first class-action case set by the CAVC, Godsey v Wilkie.  Mine was ignored for 30 years until the BVA judge found it in the file.  I have the second one, now 28 years old that involves the "Next of Friend" claim that I am asking others to join if the "shoe fits."

[Vync]

3 hours ago, Lemuel said:

...the way the DRO level negates a "claim requesting additional compensation" is by ignoring it.

Been there, done that. I have a CUE on appeal with the BVA because the DRO screwed up early last year. During our call they conceded the VA failed to assign the correct rating percentage on a claim decided back in 2000. When I got the decision letter it was almost a rubber stamp of the denial from the supplemental. They also failed to follow M21-1 and justify why each of my CUE points was valid or not. It was like we never had that conversation at all. I guess I joined the "DRO's that ignored you" club, too.

[Lemuel]

I found the section of 38 CFR 4.16 that I was looking for in my old notes:

 38 CFR 4.16 (b); “…Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-scheduler consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.”

Now I search to see if it is current.  Even if it is not it will only affect veterans after the date of the change.

The current 38 CFR 4.16:  

4.16 Total disability ratings for compensation based on unemployability of the individual.

§ 4.16 Total disability ratings for compensation based on unemployability of the individual.

(a) Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: Provided That, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination.

(Authority: 38 U.S.C. 501)

(b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.

[40 FR 42535, Sept. 15, 1975, as amended at 54 FR 4281, Jan. 30, 1989; 55 FR 31580, Aug. 3, 1990; 58 FR 39664, July 26, 1993; 61 FR 52700, Oct. 8, 1996; 79 FR 2100, Jan. 13, 2014]

This was essentially unchanged since 1975.  Note the rating officers should grant on the presumptive % guidelines and your representative should make sure you get what you are entitled to but often do not as in my case with the DAV.  I had a hearing in 1990 with my employer's statement in the file and my DAV attorney rep failed to bring it up.  My temporal lobe epilepsy was not confirmed until after the hearing, but I have a new neurologist's opinion that the seizures continued after their nexus presentation in the 30-day hospitalization reported complex partial seizures in 1969 before my 1974 Honorable Discharge.

I expect to get an EED to 1974 for untreated seizures at 80%.  We will see and I will post the outcome.