26 replies to this topic

[usmcman001]

Question-
I had put in a claim for PTSD in early 08 and the claim was closed in Oct 08 for no supporting documents. I am a combat vet with a Combat action ribbon etc. I recieved a letter that stated they needed more evidence and what not. I sent in letters from fmily memebers and friends I was in the service with supporting statements of PTSD. I never was diagnosed with PTSD by the VA. In that fact I never went to the doc at all. After I sent in info About a month later I recieved another letter asking for more documents. I replied with no more information to provide. Shortly after I was denied for PTSD.

I currently have a open claim for PTSD again and was diagnosed by the psych with PTSD. Now just waiting to a rating from VBA. My question is should my claim from 08 been closed so quick and should they have gave me a C&P before a decision? I am trying to see if what I should do and if this a CUE. Also is there anyway to get back dated to that time since I was diagnosed with PTSD for this claim? Thanks

[jbasser]

No c and P exam. That tells me that they avoided giving you the exam because it would have resulted in a diagnosis. Fair play isn't it.
Of course proving that would be near to impossible.
I would wait until you are awarded then I would discuss it with an attorney like VetLawyers. Sounds like it can have some substance but Cues are a very strange thing with a lot of hurdles to jump over.

J

[carlie]

usmc,
Your profile shows 10 % SC - what is it for ?

[NSA-Saigon-ET]

The VA doesn't usually schedule a C & P exam for claims with no evidence or diagnosis. In this case they were correct in denying your claim. If you nowhave evidence and can link it to your service then you will get approved .

[usmcman001]

Claire I am 10% for tinnitus and 0% for bilateral compartment syndrome. Was denied for hearing loss in 05. Going to reopen claim and get another audiogram.

NSA here is the funny thing. Like I posted below I have a open claim as we speak for PTSD again. I was given a C&P by the VA and never requested it. They called 4 days prior to appt. I would have thought they would have done the same for previous claim. I have a Combat action ribbon and campaign medals for AO's I was in.

I am working with a rep from DAV and he looked into it slightly and said it was denoed for no evidence. Well no crap I knew that. He kinda acted as if it wasnt worth going back to see more info on case and see if there was CUE. Just thinking that if I am diagnosed now with it I had it beofre so they should back date monies owed. I know this is far from easy but makes since to me. Thanks for replys.

[NSA-Saigon-ET]

Claire I am 10% for tinnitus and 0% for bilateral compartment syndrome. Was denied for hearing loss in 05. Going to reopen claim and get another audiogram.

NSA here is the funny thing. Like I posted below I have a open claim as we speak for PTSD again. I was given a C&P by the VA and never requested it. They called 4 days prior to appt. I would have thought they would have done the same for previous claim. I have a Combat action ribbon and campaign medals for AO's I was in.

I am working with a rep from DAV and he looked into it slightly and said it was denoed for no evidence. Well no crap I knew that. He kinda acted as if it wasnt worth going back to see more info on case and see if there was CUE. Just thinking that if I am diagnosed now with it I had it beofre so they should back date monies owed. I know this is far from easy but makes since to me. Thanks for replys.

Ok,, here is the straight poop as cI see it. The first order is to get your claim for PTSD approved now. You can do research for a possibly CUE later, but the most important matter at hand is to follow thru by requesting a copy of your records and the C & P report. The C & P report will tell you where you stand on your claim.

[usmcman001]

How does a copy of my C&P show where my claim sits? Sorry I am new to this whole thing and dont understand all of the procedures. Thanks.

[cooter]

What it means is, the information that the examiner stated on your C&P exam will give you a more understanding on how the examiner feels towards your disability. i.e.. what the examiner says how bad your disability is, is going to give the rater a better idea on how much % that you should get. It's suppose to be based from a criteria list that the rater uses for each certain type of disability or disease.




Coot

[carlie]

How does a copy of my C&P show where my claim sits? Sorry I am new to this whole thing and dont understand all of the procedures. Thanks.

usmc,
Here's some info for you.
http://www.hadit.com/

http://www.hadit.com/definitions.html

http://www.hadit.com...help_guide.html

[Philip Rogers]

usmcman001 - first let me apologize that you were unable to enlist in the Army and had to settle for second best(USMC). Okay, now I'll be serious. I doubt you have a CUE, however you may have the potential to get the earlier effective date(EED), back to the original claim date. In order to offer an opinion as to whether you have a CUE, I would need to see all documents pertaining to that claim and not just read your statements. Sorry!

pr

[Berta]

I agree to support the PTSD claim as best as you can and then read all of the info on CUE claims at hadit and dont overlook this info too:



http://www.hadit.com...ervice-records/

and any other info here under Search for 'newly discovered service records' if there was possibility that something was overlooked by VA in the last denied claim.

If you do eventually file a CUE claim, could you post the older denial here at that time for us to see?

No deadlines on filing CUEs, You need the current claim resolved favorably first for the CUE to have merit.

CUES depend on established medical evidence.

I am stunned that they didnt give you a C & P.

As you said" I would have thought they would have done the same for previous claim."


I agree -what is different?

[usmcman001]

Philip, No offense but I believe that ARMY stands for "Arent Ready for Marines Yet" or "Arent Really Men Yet"! LOL Dont be diappointed because you didnt join the worlds best fighting force and brotherhood! You did you part as well. LOL Its all fun. What is needed to get an EED? Also the only letter I have for original claim was just a denial letter saying there wasnt supporting evidence to support PTSD claim. Doesnt the VA look at record such as CAR or any other medals/ribbons. I sent letters from family and friends that I served with but they claimed they never recieved such documents and closed cllaim. If I could just get EED that would be great as I think they owe the money to me.

[Philip Rogers]

usmcman001 - hey, that was good! Aren't marines really just sailors in funny looking uniforms?? The nice thing about the Corps, these days, is that marines are now able to get their GED's, while serving and learning to read can really help them later in life LOL!!! Someone once told me the marines are the men's dept of the Navy but I corrected them that it was in fact the Seals. I wish you well in your claim and hope you know this is all just kidding.

You should request a complete copy of your c-file, asap, so that you can see what they actually have on that earlier filing.

pr

Philip, No offense but I believe that ARMY stands for "Arent Ready for Marines Yet" or "Arent Really Men Yet"! LOL Dont be diappointed because you didnt join the worlds best fighting force and brotherhood! You did you part as well. LOL Its all fun. What is needed to get an EED? Also the only letter I have for original claim was just a denial letter saying there wasnt supporting evidence to support PTSD claim. Doesnt the VA look at record such as CAR or any other medals/ribbons. I sent letters from family and friends that I served with but they claimed they never recieved such documents and closed cllaim. If I could just get EED that would be great as I think they owe the money to me.

[SANDMAN]

Hey Phillip ,


Is that how you Airborne guys become qualified , once you realized you didn't join the Worlds finest fighting force , you jump out of a perfectly fine plane !!!!!!!

Ha Ha i couldn't resist !!!!! All in god fun.

Sgt Sandman SEMPER FI

[cooter]

That's why they invented the parachute, so the army wouldn't have to hump, jump, and swim to get where we're going while the marines are still figuring out how to navigate a map. hehe

Airborne All The Way!!!



Coot

[mobie16r]

USMC,you dont have a CUE,Va did there job when they send you a letter asking for more evidence (VACC NOTICE RESPONSE LETTER).That was there duty letter to assist telling you what was needed to substantiate your claim, although you said you send in lay evidence from your flamily and friends but you didn't get a medical opinion from a Psychologist of Psychiatrist,You was Halfway home by having the combat action ribbon,that was your in-service stressor, but you did't have the diagnosis of ptsd and that was why va didnt give you a C&P.On that letter va tell you to send evidence as soon as possible and if we don't hear from you we may made a decision in 30 days,however you have up to one year from the date of this letter to submit the information and evidence necessary to support your claim and va go on to say if we decide your claim before one year from the date of this letter,you still have the remainder of the one-year period to submit additional information necessary to support your claim. This is how va cover themself from a CUE. I hope this help,good luck.
mobie

[usmcman001]

I thought a c&p was for diagnosing problem? Why did the VA sign me up for a c&p thi time then without asking for it? Just think with a CAR and letters and what not it woul have gone further than it did.

[carlie]

I thought a c&p was for diagnosing problem? Why did the VA sign me up for a c&p thi time then without asking for it? Just think with a CAR and letters and what not it woul have gone further than it did.

Apparently you did not have a diagnosis for PTSD when that Rating Decision was adjudicated.

[mobie16r]

Carlie is correct
mobie

[usmcman001]

I understand that but for a diagnosis wouldn't the VA have to schedule a c&p for me to be diagnosed with PTSD in the first place? I have gotten a c&p scheduled for all other claims without doing a thing besides submitting for a sc disability. Just am thinking I got dicked by the dog on that claim. Thanks

[T8r]

It was pretty crappy of the rater not To order the exam the first time. That could have possibly Given you The Needed diagnosis, but that time was not Relaxed standards. The reason you got the exam this time us relaxed Standards and the rater or va employee used their brain and knew they would get a diagnosis through a c&p. I doubt the CUE will stick because of the different Standards at
The time. The Va did duty to assist at that time. Hope or works out this time.

[carlie]

Question-
I had put in a claim for PTSD in early 08 and the claim was closed in Oct 08 for no supporting documents. I am a combat vet with a Combat action ribbon etc.

usmc,
Do you have a copy of your DD214 ?
If yes, does your DD214 show you were awarded a CAR ?
Can you post the Reasons and Bases plus what's listed in the Evidence Section's
of the Rating Decision that denied service connection in Oct. 2008.

[usmcman001]

Carlie yes I have a copy and will try to post up the decision once I scan it to computer. Also My dd214 shows CAR. What I dont understand is the VA set up c&p for hearing and leg issues I was having before I filed for the PTSD claim. I would have thought they would have made me an appt. They claim they never recieved any paperwork from me as far as statements go. They sent me another letter to see if I had any additional info and I checked no on that form. After that I think it was less than 30 days and it was denied and closed. Was aggrivated and pissed off really so I didnt even try to fight it. I was in denial of having PTSD to begin with and the better half made me get back on with VA and get help that I need. Is there anything that says the VA has to give you a C&P for a claim before denying claim? Thanks

[carlie]

I understand that but for a diagnosis wouldn't the VA have to schedule a c&p for me to be diagnosed with PTSD in the first place? I have gotten a c&p scheduled for all other claims without doing a thing besides submitting for a sc disability. Just am thinking I got dicked by the dog on that claim. Thanks

usmc,
I'm not saying that the following reg would be supportive enough or even applicable to
succeed in a claim for CUE, (because it's only a duty to assist issue),
BUT
if your DD214 was included in the evidence of record in the Oct 2008 Rating Decision that denied
service connection for PTSD, and your Combat Action Ribbon (CAR) is listed on the DD214 -
that certainly should have triggered the decision maker to request a C&P examination by a
mental health professional - which MAY HAVE resulted in getting a PTSD diagnosis and benefits
granted at that time.

http://ecfr.gpoacces....67.133&idno=38
§ 3.326 Examinations.

For purposes of this section, the term examination includes periods of hospital observation when required by VA.

(a) Where there is a claim for disability compensation or pension but medical evidence accompanying the claim is not adequate for rating purposes, a Department of Veterans Affairs examination will be authorized. This paragraph applies to original and reopened claims as well as claims for increase submitted by a veteran, surviving spouse, parent, or child. Individuals for whom an examination has been scheduled are required to report for the examination.

Then on the other hand - if your CAR was not officially of record (at that time) on your DD214 - but it is now of record, the following reg might be applicable for earlier effective date purposes.

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=021ddcc6b3c7997c93327d8e0b2332b6&rgn=div8&view=text&node=38:1.0.1.1.4.1.60.65&idno=38


§ 3.156 New and material evidence.
(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)© Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph © of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

[usmcman001]

Isnt a dd214 always included no matter what? I would assume they would use as evidence of service etc.... If not I dont think I submitted a copy but I may be wrong.. I will have to go through paper work tomorrow.

[carlie]

Isnt a dd214 always included no matter what? I would assume they would use as evidence of service etc....
If not I dont think I submitted a copy but I may be wrong.. I will have to go through paper work tomorrow.

usmc,
You did not need to submit your DD214, it's the VA's job to ensure they have it.
My train of thought regarding this is -
since you filed a claim for PTSD the VA decision maker should have looked over the DD214
to see if there were any decorations and/or awards that would show the claim for PTSD to
at least be credible / plausible.

Here's a BVA claim that relates to 38 CFR 3.156 c
As noted, these claims were originally based on allegations

that there was CUE in final March and June 2003 rating

decisions that, in pertinent part, denied service connection

for PTSD, hypertension, bilateral hearing loss, and tinnitus,

and denied TDIU. However, in July 2007, the veteran

submitted a June 2007 record from the Navy Personnel Command

(NPC) entitled Transmittal of and/or Entitlement to Awards.

This document states that a review of the veteran's military

records revealed that he was entitled to receive several

medals and ribbons, including the Combat Action Ribbon.

Under 38 C.F.R. § 3.156© "at any time after VA issues a

decision on a claim, if VA receives or associates with the

claims file relevant official service department records that

existed and had not been associated with the claims file when

VA first decided the claim, VA will reconsider the claim" on

the merits de novo. As receipt of the Combat Action Ribbon

denotes that the veteran engaged in combat with the enemy and

entitles him to relaxed evidentiary standards under

38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(f), his claims

must be reconsidered based on this evidence under 38 C.F.R.

§ 3.156©.

Receipt of this service department evidence

essentially renders the CUE claims moot and any decision made

as a result of this new evidence will subsume the March 2003

and June 2003 decisions. The veteran is not prejudiced by

the Board affording him a broader (and more liberal) scope of

review in considering his claims de novo. The issues have

been characterized accordingly.

A December 2007 Informal Hearing Presentation from the

veteran's representative raises the issue of whether there

was CUE in a September 1957 rating decision that reduced the

rating for service-connected hepatitis. Since this issue has

not been developed for appellate review, it is referred to

the RO for appropriate action.

The issues of entitlement to service connection for

hypertension, bilateral hearing loss, and tinnitus, and to

TDIU are REMANDED to the RO via the Appeals Management Center

(AMC), in Washington, DC. VA will notify the appellant if

any action on his part is required.

FINDINGS OF FACT

1. The veteran's awards and decorations include the Combat

Action Ribbon.

2. He is shown to have a medical diagnosis of PTSD related to

his experiences in service.

CONCLUSION OF LAW

Service connection for PTSD is warranted. 38 U.S.C.A.

§§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304,

4.125 (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

A. Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants

in substantiating a claim for VA benefits. See 38 U.S.C.A.

§§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102,

3.156(a), 3.159 and 3.326(a). The VCAA applies to the

instant claim.

Upon receipt of a complete or substantially complete

application for benefits, VA is required to notify the

claimant and his or her representative of any information,

and any medical or lay evidence, that is necessary to

substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R.

§ 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Proper VCAA notice must inform the claimant of any

information and evidence not of record (1) that is necessary

to substantiate the claim; (2) that VA will seek to provide;

(3) that the claimant is expected to provide; and (4) must

ask the claimant to provide any evidence in his or her

possession that pertains to the claim. 38 C.F.R.

§ 3.159(b)(1). VCAA notice should be provided to a claimant

before the initial unfavorable agency of original

jurisdiction decision on a claim. Pelegrini v. Principi, 18

Vet. App. 112 (2004).

Since the determination below constitutes a full grant of the

claim of service connection for PTSD, there is no reason to

belabor the impact of the VCAA on this matter, since any

error in notice content or timing is harmless. Furthermore,

as the benefit sought is granted, it is not prejudicial that

the Board is considering and relying upon evidence received

in July 2007 in the first instance.




B. Legal Criteria, Factual Background, and Analysis

Service connection may be granted for disability due to

disease or injury incurred in or aggravated by active

military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R.

§§ 3.303, 3.304.




Service connection for PTSD requires medical evidence

diagnosing the condition in accordance with 38 C.F.R.

§ 4.125(a) [i.e., a diagnosis under DSM-IV]; a link,

established by medical evidence, between current symptoms and

a stressor event in service; and credible supporting evidence

that the claimed stressor event in service occurred.

38 C.F.R. § 3.304(f).

If the evidence establishes that the veteran engaged in

combat with the enemy and the claimed stressor is related to

that combat, in the absence of clear and convincing evidence

to the contrary, and provided that the claimed stressor is

consistent with the circumstances, conditions, or hardships

of the veteran's service, the veteran's lay testimony alone

may establish the occurrence of the claimed in-service

stressor. 38 C.F.R. § 3.304(f); West v. Brown, 7 Vet. App.

70 (1994).

When there is an approximate balance of positive and negative

evidence regarding the merits of an issue material to the

determination of the matter, the benefit of the doubt in

resolving each such issue shall be given to the claimant.

38 U.S.C.A. § 5107(b).




When all of the evidence is assembled, VA is responsible for

determining whether the evidence supports the claim or is in

relative equipoise, with the veteran prevailing in either

event, or whether a fair preponderance of the evidence is

against the claim, in which case the claim is denied.

Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).




As noted above, a June 2007 NPC record states that the

veteran was awarded a Combat Action Ribbon (denoting he

engaged in combat). Service personnel records previously

associated with the claims file report the veteran

"[p]articipated in operations against enemy forces in south

and central Korea" from August 1951 to January 1952. The

veteran's DD Form 214 and service personnel records indicate

that during this time frame his military specialty (MOS) was

0311, which was rifleman, (U.S. Marine Corps MOS Manual

(1956), and that he was stationed with the B Company, 1st

AmTrac Battalion. Hence, the Board finds that while the

record from the NPC has not been authenticated, it is

consistent with evidence already of record regarding the

veteran's service. Receipt of the Combat Action Ribbon is

evidence that he engaged in combat with the enemy during

service. His claimed stressors include seeing and helping

wounded and dead soldiers in Korea. As this stressor is

consistent with the circumstances of his combat service, his

lay testimony establishes its occurrence. On August 2002 VA

examination, the examiner provided an Axis I diagnosis of

PTSD and opined that PTSD was related to the veteran's

service as he was exposed to significant stressors therein,

"including repetitive witnessing of severely wounded and

dying soldiers." Additionally, an October 2001 letter from

a VA social worker states that the veteran manifests symptoms

of combat related PTSD under DSM-IV. As this competent

evidence supports the veteran's claim and there is no

evidence to the contrary, service connection for PTSD is

warranted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

ORDER

Service connection for PTSD is granted.

http://www.va.gov/ve...es1/0803742.txt

[mobie16r]

Like i said before VA is not REQUIRED to give a C&P without the diagnosis of ptsd,"BUT" if he/she at the VA was looking out for the veteran,VA could have order a C&P. It all depent on who you dealing with.Now that you have been diagnose with POST TRAUMATIC STRESS DISORDER, you will get a rating if your combat experience is the reason you have ptsd.Don't know what precentage you will get,i don't thank you have a CUE.
mobie16r