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    • Sleep Apnea Claim
      Thank you. Ha....when I retired I had to stand in front of a copy machine and make my own copies. A disk would be great.
    • Reserve/End of contract
      Hello All, Need some suggestions, I served on Active Duty for 9 years and then joined the reserves before my contract ended. I have now been in the reserves for 4 years.
      I was artillery during my AD time and it was frowned upon to go to medical for anything, I smashed my hand between the garage door and the howitzer pushing it out and was told not to go to medical. Finally after a week, I went to an off base urgent care facility and found that I had fractured two bones in my hand and they put a half cast on my pink and ring fingers and going up my hand. Well I received a page 11 for not following an order, so that was my wake up call into the unit. Going forward I rarely went to medical and I have had many injuries since. I deployed in 06/07 and in 09 and after returning home my wife started saying I was choking in my sleep, so I went to my family doctor at the time outside Quantico (no longer a doctors office) and was prescribed a CPAP machine. I used it for about a year and some change and left the military to go back home. I began the lengthy process with filing a claim with the VA only to be denied. I am now currently in the reserves which is no better, I injured my back when I was in Iraq falling from a wrecker and at the time I was on 800 mg ibuprofen about 6 times a day. I did something to my back again in 2014 during a training exercise to the point I could not move, the unit has now been going back and forth with RMED since 2014 and still has yet to come back with approval. I have been going to the VA for appointments and having them take a look at my back since orthopedic/physical therapy through civilian care is killing my pockets. My military medical records are MIA and I never made copies. I have a copy of my original sleep study but it does not show the actual study it just gives the doctors narrative and what he prescribed at the time. I originally started going to the VA for counseling sessions for PTSD/in service stress but stopped due to the issue with service connection PTSD causing issues with security clearances and other issues and at the time I was serving on the police force in a local town. Is there anything I can do currently that will help with submitting my claim, should I get my current VA doctor to recommend anything, or should I find a good doctor on the outside of the VA? My back pain is probably the biggest factor and now is causing a lot of issues with my knees. I also have high blood pressure, I am still fighting with sleep issues. I have little documentation from doctors but do have a decent record with my chiropractor over the past 4 years since moving back home. Any suggestions will be greatly appreciated. Thanks
    • My husband died in motorcycle accident
      From what I can tell here, the retro DIC would go back to May 2010,the month he died in  and when the 21-534 was filed.
    • Back Pay?
      A Dickerson, I have never heard of VA calling to ask for your bank account number because that information is considered personal. I have heard of VA sending you a letter telling you they need you to confirm your account information and bank information, routing number, etc. These days you can't trust the person on the other end of a phone. Did they give you there service code number. It just sound like something VA wouldn't do with all this identity theft stuff going on. If you haven't already I would call the 800-827-1000 number and confirm someone did call you from VA. Call me paranoid  
    • My husband died in motorcycle accident
      page1006 This may help you? or Confuse the heck out of you, I'm sure MsBerta will know. Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. (b)(1) The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release. (2)(A) The effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed (as determined by the Secretary) as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application. (B) For purposes of this paragraph, an original claim is an initial claim filed by a veteran for disability compensation. (C) This paragraph shall take effect on the date that is one year after the date of the enactment of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 and shall not apply with respect to claims filed after the date that is three years after the date of the enactment of such Act. (3) The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. (4)(A) The effective date of an award of disability pension to a veteran described in subparagraph (B) of this paragraph shall be the date of application or the date on which the veteran became permanently and totally disabled, if the veteran applies for a retroactive award within one year from such date, whichever is to the advantage of the veteran. (B) A veteran referred to in subparagraph (A) of this paragraph is a veteran who is permanently and totally disabled and who is prevented by a disability from applying for disability pension for a period of at least 30 days beginning on the date on which the veteran became permanently and totally disabled. (c) The effective date of an award of disability compensation by reason of section 1151 of this title shall be the date such injury or aggravation was suffered if an application therefor is received within one year from such date. (d) The effective date of an award of death compensation, dependency and indemnity compensation, or death pension for which application is received within one year from the date of death shall be the first day of the month in which the death occurred. (e)(1) Except as provided in paragraph (2) of this subsection, the effective date of an award of dependency and indemnity compensation to a child shall be the first day of the month in which the child’s entitlement arose if application therefor is received within one year from such date. (2) In the case of a child who is eighteen years of age or over and who immediately before becoming eighteen years of age was counted under section 1311(b) of this title in determining the amount of the dependency and indemnity compensation of a surviving spouse, the effective date of an award of dependency and indemnity compensation to such child shall be the date the child attains the age of eighteen years if application therefor is received within one year from such date. (f) An award of additional compensation on account of dependents based on the establishment of a disability rating in the percentage evaluation specified by law for the purpose shall be payable from the effective date of such rating; but only if proof of dependents is received within one year from the date of notification of such rating action. (g) Subject to the provisions of section 5101 of this title, where compensation, dependency and indemnity compensation, or pension is awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue. In no event shall such award or increase be retroactive for more than one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier. (h) Where an award of pension has been deferred or pension has been awarded at a rate based on anticipated income for a year and the claimant later establishes that income for that year was at a rate warranting entitlement or increased entitlement, the effective date of such entitlement or increase shall be fixed in accordance with the facts found if satisfactory evidence is received before the expiration of the next calendar year. (i) Whenever any disallowed claim is reopened and thereafter allowed on the basis of new and material evidence resulting from the correction of the military records of the proper service department under section 1552 of title 10, or the change, correction, or modification of a discharge or dismissal under section 1553 of title 10, or from other corrective action by competent authority, the effective date of commencement of the benefits so awarded shall be the date on which an application was filed for correction of the military record or for the change, modification, or correction of a discharge or dismissal, as the case may be, or the date such disallowed claim was filed, whichever date is the later, but in no event shall such award of benefits be retroactive for more than one year from the date of reopening of such disallowed claim. This subsection shall not apply to any application or claim for Government life insurance benefits. (j) Where a report or a finding of death of any person in the active military, naval, or air service has been made by the Secretary concerned, the effective date of an award of death compensation, dependency and indemnity compensation, or death pension, as applicable, shall be the first day of the month fixed by that Secretary as the month of death in such report or finding, if application therefor is received within one year from the date such report or finding has been made; however, such benefits shall not be payable to any person for any period for which such person has received, or was entitled to receive, an allowance, allotment, or service pay of the deceased. (k) The effective date of the award of benefits to a surviving spouse or of an award or increase of benefits based on recognition of a child, upon annulment of a marriage shall be the date the judicial decree of annulment becomes final if a claim therefor is filed within one year from the date the judicial decree of annulment becomes final; in all other cases the effective date shall be the date the claim is filed. (l) The effective date of an award of benefits to a surviving spouse based upon a termination of a remarriage by death or divorce, or of an award or increase of benefits based on recognition of a child upon termination of the child’s marriage by death or divorce, shall be the date of death or the date the judicial decree or divorce becomes final, if an application therefor is received within one year from such termination. [(m) Repealed. Pub. L. 103–446, title XII, § 1201(i)(8), Nov. 2, 1994, 108 Stat. 4688.] (n) The effective date of the award of any benefit or any increase therein by reason of marriage or the birth or adoption of a child shall be the date of such event if proof of such event is received by the Secretary within one year from the date of the marriage, birth, or adoption. (Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1226, § 3010; Pub. L. 87–674, § 3, Sept. 19, 1962, 76 Stat. 558; Pub. L. 87–825, § 1, Oct. 15, 1962, 76 Stat. 948; Pub. L. 91–376, § 7, Aug. 12, 1970, 84 Stat. 790; Pub. L. 91–584, § 13, Dec. 24, 1970, 84 Stat. 1578; Pub. L. 93–177, § 6(a), Dec. 6, 1973, 87 Stat. 696; Pub. L. 93–527, § 9(b), Dec. 21, 1974, 88 Stat. 1705; Pub. L. 94–71, title I, § 104, Aug. 5, 1975, 89 Stat. 396; Pub. L. 97–66, title II, § 204(b), Oct. 17, 1981, 95 Stat. 1029
    • C&P Exam Completed [Bad Vibe]
      Arng I'm already S/C for these conditions. I was being evaluated for an increase.   buck I've also heard the work up can be found on mhv shortly after. I will try this too. 
    • My husband died in motorcycle accident
      I'm only guessing but I would say the date your hubby filed his claim, DIC maybe different in this type case, but if you win out I think it would be the date he filed  but I'm not sure? Ms Berta will know. ..............Buck
    • My husband died in motorcycle accident
      I have one more question...if my son and I do receive any benefits would it be starting from the day my husband filled his claim, the day he passed or the day I filled? 
    • Sleep Apnea Claim
      Honestly, I am not sure.  I received a disc when I retired, so...I have not requested them from St Louis, I cannot say.  Many here have had experience with this, so I would wait for one of them to chime in.  Good luck!
    • Sleep Apnea Claim
      EODCMC,   Aug-Nov is the same timeframe they guesstimated me at also, so maybe before, maybe after, Who Knows!!!  Just hang tight and don't submit anymore information or your claim will revert back to an standard claim. 

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Wings

Presumption Of Sound Condition: Aggravation Of A Disability By Active Service

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[Federal Register: May 4, 2005 (Volume 70, Number 85)]

[Rules and Regulations]

[Page 23027-23029]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr04my05-3]

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AL90

Presumption of Sound Condition: Aggravation of a Disability by Active Service

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: This document amends the Department of Veterans Affairs (VA) adjudication regulations regarding the presumption of soundness of a veteran by adding a requirement that, in order to rebut the presumption of soundness of a veteran on entrance into active service, VA must prove not only that the condition existed prior to entrance into active service, but also that it was not aggravated by the veteran's active service. This amendment reflects a change in VA's interpretation of the statute governing the presumption of sound condition, and is based on a recent opinion of VA's General Counsel as well as a recent decision of the United States Court of Appeals for the Federal Circuit. The intended effect of this amendment is to require that VA, not the claimant, prove that the disability preexisted entrance into military service and that the disability was not aggravated by such service before the presumption of soundness on entrance onto active duty is overcome.

DATES: Effective Date: May 4, 2005.

Applicability Date: This rule applies to claims that were pending on or filed after the effective date of this rule, May 4, 2005. It does not apply to claims that were finally decided prior to the effective date of this rule or to collateral challenges to final decisions rendered prior to the effective date of this rule.

FOR FURTHER INFORMATION CONTACT: David Barrans, Attorney, Office of General Counsel (022), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, telephone (202) 273-6315.

SUPPLEMENTARY INFORMATION: VA is amending its adjudication regulations at 38 CFR 3.304(b) to reflect a change in the interpretation of the statute governing the presumption of sound condition.

Section 1111 of title 38, United States Code, provides that veterans are presumed to have been in sound condition when they were examined, accepted, and enrolled for service, except as to conditions that were noted at the time, or ``where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.'' Section 1153 of title 38, United States Code, states that ``[a] preexisting disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.''

VA's regulation implementing the presumption of sound condition, 38 CFR 3.304(b), historically has stated that the presumption may be rebutted by clear and unmistakable evidence that a condition existed prior to service. Although this appears to ignore the last seven words of 38 U.S.C. 1111 (``and was not aggravated by such service''), VA historically has interpreted those seven words to relate to the presumption of aggravation under 38 U.S.C. 1153.

Accordingly, VA's regulation implementing the presumption of aggravation under 38 U.S.C. 1153 also implements the last seven words of section 1111, as VA previously construed those words. That regulation, 38 CFR 3.306(b), states that, when a preexisting disability increased in severity during service, the presumption of aggravation may be rebutted only by clear and unmistakable evidence that the increase was due to the natural progress of the disease. The regulation further states that aggravation will not be conceded when a preexisting disability underwent no increase in severity during service.

Under VA's current regulations, if a condition was not noted at entry but is shown by clear and unmistakable evidence to have existed prior to entry, the burden then shift[ed] to the claimant to show that the condition increased in severity during service. Only if the claimant satisfies this burden will VA incur the burden of refuting aggravation by clear and unmistakable evidence.

VA is revising its interpretation of section 1111 to provide that, if a condition is not noted at entry into service, the presumption of sound condition can be rebutted only if clear and unmistakable evidence shows both that the condition existed prior to service and that the condition was not aggravated by service.

Under this interpretation, the burden does not shift to the claimant to establish that a preexisting condition increased in severity during service. Rather, VA alone bears the burden of proving both that the condition existed prior to service and that it was not aggravated by service. If the evidence fails to support either of those findings, the presumption of sound condition is not rebutted.

Our revised interpretation of section 1111 is based on the extensive analysis of the history of that statute stated in a precedent opinion of VA's General Counsel, VAOPGCPREC 3-2003, and the Federal Circuit's opinion in Wagner v. Principi, No. 02-7347 (Fed. Cir. June 1, 2004).

As the General Counsel and the Federal Circuit noted, the

language of section 1111 literally provides that, if a condition was not noted at entry into service, VA bears the burden of showing both that the condition existed prior to service and that it was not aggravated by service. If VA fails to establish either of those facts, the claimant would be entitled to a presumption that he or she entered service in sound condition.

VA ha[d] previously refrained from adopting a strictly literal interpretation of section 1111, because such a literal reading compels results that have been described as ``illogical'' by the General Counsel, ``self-contradictory'' by the Federal Circuit, and possibly ``absurd'' by the United States Court of Appeals for Veterans Claims. See VAOPGCPREC 3-2003, Wagner, slip op. at 8; Cotant v. Principi, 17 Vet. App. 116, 129 (2003).

Among other things, a literal construction of the statute would require VA to presume that a veteran entered service in sound condition even in cases where clear and unmistakable evidence shows the contrary, merely because VA cannot prove the absence of aggravation in service. It is unclear why the question of whether a preexisting disability was aggravated in service should have any bearing on the logically preliminary question of whether there was a preexisting disability at all.

Despite these concerns, VA's General Counsel and the Federal Circuit have concluded that the legislative history of section 1111 strongly suggests that Congress intended what the language of the statute literally requires. The General Counsel also concluded that, although the statute's requirements seemed counterintuitive, they were not so bizarre that Congress could not have intended them.

The rebuttal standard in what is now section 1111 originated in the Act of July 13, 1943, ch. 233, Sec. 9(b), 57 Stat. 554, 556 (Pub. L. 78-144), as an amendment to Veterans' Regulation No. 1(a), part I, para. I(b) (Exec. Ord. No. 6,156) (June 6, 1933).

Prior to the amendment, paragraph I(b) stated that the presumption of soundness could be rebutted ``where evidence or medical judgment is such as to warrant a finding that the injury or disease existed prior to acceptance and enrollment.''

In 1943, a bill was introduced in the House to make the presumption of soundness irrebuttable (see H.R. 2703, 78th Cong., 1st Sess. (1943)). That bill apparently was introduced in response to the concern that ``a great many men have been turned out of the service after they had served for a long period of time, some of them probably 2 or 3 years, on the theory that they were disabled before they were ever taken into the service'' (89 Cong. Rec. 7463 (daily ed. July 7, 1943) (statement of Cong. Rankin)).

The Administrator of Veterans Affairs recommended that the bill be revised to permit rebuttal of the presumption ``where clear and unmistakable evidence demonstrates that the injury or disease existed prior to acceptance and enrollment'' (S. Rep. No. 403, 78th Cong., 1st Sess. 6 (1943)).

The Senate thereafter approved an amendment to the bill adopting the Administrator's suggested language, but adding to it the phrase ``and was not aggravated by such active military or naval service.'' That language was approved by the House and was included in the legislation enacted as Public Law 78-144. The provisions of Veterans' Regulation No. 1(a), part I, para. I(b), as amended, were subsequently codified without material change at 38 U.S.C. 311, later renumbered as section 1111.

A Senate Committee Report concerning the 1943 statute stated that ``[t]he language added by the committee, `and was not aggravated by such active military or naval service' is to make clear the intention to preserve the right in aggravation cases as was done in Public [Law] No. [73] 141.'' S. Rep. No. 403, at 2. Public Law 73-141, referenced as the model for the Senate amendment, provided for restoration of service-connected disability awards that had been severed under depression-era statutes, and provided that:

The provisions of this section shall not apply * * * to persons as to whom clear and unmistakable evidence discloses that the disease, injury, or disability had inception before or after the period of active military or naval service, unless such disease, injury, or disability is shown to have been aggravated during service * * * and as to all such cases enumerated in this proviso, all reasonable doubts shall be resolved in favor of the veteran, the burden of proof being on the Government.

Act of March 27, 1943, ch. 100, Sec. 27, 48 Stat. 508, 524. This statute appears to have placed the burden on the government to show by clear and unmistakable evidence both that the disability existed prior to service and that it was not aggravated by service. It is thus consistent with the view that the presumption of soundness enacted in 1943 was intended to place the burden of proof on VA with respect to both issues. That purpose is also reflected in other statements made during the debate on the 1943 legislation. See 89 Cong. Rec. 7463 (daily ed. July 7, 1943) (statement of Rep. Rankin) (``It places the burden of proof on the Veterans' Administration to show by unmistakable

evidence that the injury or disease existed prior to acceptance and enrollment and was not aggravated by such active military or naval service.'')

Based on the foregoing authorities, VA is revising its regulations at 38 CFR 3.304(b) to provide that, in order to rebut the presumption of sound condition, VA must establish by clear and convincing evidence both that the disability existed prior to service and that it was not aggravated by service. To accomplish this, VA is amending Sec. 3.304(b) by adding, at the end of the first sentence, ``and was not aggravated by such service.''

The effect of this new interpretation is to establish different standards to govern for disabilities that were noted at entry into service and those that were not. If a disability was not noted at entry into service, VA will apply the presumption of sound condition under 38 U.S.C. 1111. If VA fails to establish either that the disability existed prior to service or that it was not aggravated by service, the presumption of sound condition will govern and the disability will be considered to have been incurred in service if all other requirements for service connection are established. In such cases, the presumption of aggravation in 38 U.S.C. 1153 will not apply because VA will presume that the veteran entered service in sound condition. On the other hand, if a condition was noted at entry into service, VA will consider the claim with respect to the presumption of aggravation in section 1153.

This final rule is an interpretative rule explaining how VA construes 38 U.S.C. 1111, and it merely reflects the holding in the Federal Circuit's decision in Wagner. Accordingly, there is a basis for dispensing with prior notice and comment and delayed effective date provisions of 5 U.S.C. 552 and 553.

Unfunded Mandates

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This rule would have no such effect on State, local, or tribal governments, or the private sector.

Regulatory Flexibility Act

The Secretary hereby certifies that this regulatory amendment will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. Only VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

Paperwork Reduction Act

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

The Catalog of Federal Domestic Assistance program numbers are 64.102, 64.109 and 64.110.

List of Subjects in 38 CFR Part 3

Administrative practice and procedure, Claims, Health care,

Individuals with disabilities, Pensions, Veterans.

Approved: April 4, 2005.

Gordon H. Mansfield,

Deputy Secretary of Veterans Affairs.

For the reasons set forth in the preamble, 38 CFR part 3 is amended as follows:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity Compensation

1. The authority citation for part 3, subpart A continues to read as follows:

Authority: 38 U.S.C. 501(a), unless otherwise noted.

Sec. 3.304 [Amended]

2. In Sec. 3.304, paragraph (b) introductory text, remove ``thereto.'' and add, in its place, ``thereto and was not aggravated by such service.''

[FR Doc. 05-8899 Filed 5-3-05; 8:45 am]

BILLING CODE 8320-01-P

sound condition.pdf

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