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Denied Bronchitis 2004 Approved Asthma 2012

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SigBnSoldier

Question

Two months ago I received my rating decision for PTSD and Asthma. Was awarded 70% PTSD/Bipolar and 30% Asthma, IU/P&T.

In October 2003 I submitted a 7 contention claim that included "bronchitis". The claim was denied one year later without ever having been called to any c&p exams. In the denial for "bronchitis" the reasons says there is no evidence in my service medical records or mention of bronchitis, that my symptoms are asthma and respiratory difficulties from flu like symptoms in my SMR's.

In April 2012 I submitted a claim for PTSD and Asthma, ordered a copy of my C-File for the first time, and there plain as day in my medical records are numerous treatments in service for bronchitis and asthma.

Had a C&P exam in April 2013 for asthma, the c&p doc scratched his head, it was a no brainer to him, the evidence was plain as day in my SMR's and I definitely had continuity evidence in my file as well as current diagnosis.

The ONLY new evidence I submitted with this claim was updated continuity evidence, as well as a single treatment record for an asthma attack at a German hospital which happened a year after I discharged. That being said, the VA treated this claim as a "reopen" claim and approved it easily, but under the diagnosis of Asthma.

My question-

Shouldn't the VA have re characterized the bronchitis claim as Asthma? Do I have grounds for an earlier effective date? The evidence was clear in my SMR's, which the VA did have at the time of the initial denial. Should I file for CUE?

And what will be the repercussions of filing such a CUE on my PTSD rating, will I be reevaluated and possibly lose my P&T even though I was just rated two months ago?

Thank you in advance, hope this post isn't too confusing.

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Two months ago I received my rating decision for PTSD and Asthma. Was awarded 70% PTSD/Bipolar and 30% Asthma, IU/P&T.

In October 2003 I submitted a 7 contention claim that included "bronchitis". The claim was denied one year later without ever having been called to any c&p exams. In the denial for "bronchitis" the reasons says there is no evidence in my service medical records or mention of bronchitis, that my symptoms are asthma and respiratory difficulties from flu like symptoms in my SMR's.

In April 2012 I submitted a claim for PTSD and Asthma, ordered a copy of my C-File for the first time, and there plain as day in my medical records are numerous treatments in service for bronchitis and asthma.

Had a C&P exam in April 2013 for asthma, the c&p doc scratched his head, it was a no brainer to him, the evidence was plain as day in my SMR's and I definitely had continuity evidence in my file as well as current diagnosis.

The ONLY new evidence I submitted with this claim was updated continuity evidence, as well as a single treatment record for an asthma attack at a German hospital which happened a year after I discharged. That being said, the VA treated this claim as a "reopen" claim and approved it easily, but under the diagnosis of Asthma.

My question-

Shouldn't the VA have re characterized the bronchitis claim as Asthma? Do I have grounds for an earlier effective date? The evidence was clear in my SMR's, which the VA did have at the time of the initial denial. Should I file for CUE?

And what will be the repercussions of filing such a CUE on my PTSD rating, will I be reevaluated and possibly lose my P&T even though I was just rated two months ago?

Thank you in advance, hope this post isn't too confusing.

I myself think I fall in the category of the crazy one, so here is my humble opinion.

You can file a CUE but CUEs are very hard to win even with a lot of evidence in your file. VA, BVA and CVAC will most likely come to the conclusion that something in your file makes the original decision debatable therefore your claim does not meet the standards of CUE.

IMHO, you can still file a NOD EED since your most recent claim was granted around September 2013. It would be a lot easier to win and you do not have to go through all of the stress that filing a CUE will cause.

Fire your VSO ASAP; revoke their POA so they will not cause any more problems. I think what you are looking for is Clemons VS. Shinseki, 23 Vet. App. 1 (2009) Basically, when a veteran files a claim, he/she is seeking service connection for the symptoms regardless of how those symptoms are diagnosed and labeled. Keep in mind that winning an EED should award you back to your original claim.

Because you are filing a CUE and/or NOD for Asthma/Bronchitis, VA will most likely focus on these claims and not your PTSD. So you should have no worries about them trying to reduce your current rating.

You can file a CUE for the 2004 rating decision and a NOD for EED for the 2013 rating decision at the same time to try to cover your basis and not lose out on a timely appeal.

Hope others will chime in.

Pete

Edited by pete992
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Great Idea Pete!!!!!

A frontal and simultaneous rear attack on paper!

Yippee!

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I agree with pete992. You have the evidence from your recent award basically admitting they screwed up in the prior decision. The vba already know they screwed up in prior decision, if you read the new decision carefully. They now want to see if you know if a mistake was made. EED claim would be IMO the best/fastest way to go. Being a recently awarded claim i would file like yesterday. JMHO.......

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I myself think I fall in the category of the crazy one, so here is my humble opinion.

You can file a CUE but CUEs are very hard to win even with a lot of evidence in your file. VA, BVA and CVAC will most likely come to the conclusion that something in your file makes the original decision debatable therefore your claim does not meet the standards of CUE.

IMHO, you can still file a NOD EED since your most recent claim was granted around September 2013. It would be a lot easier to win and you do not have to go through all of the stress that filing a CUE will cause.

Fire your VSO ASAP; revoke their POA so they will not cause any more problems. I think what you are looking for is Clemons VS. Shinseki, 23 Vet. App. 1 (2009) Basically, when a veteran files a claim, he/she is seeking service connection for the symptoms regardless of how those symptoms are diagnosed and labeled. Keep in mind that winning an EED should award you back to your original claim.

Because you are filing a CUE and/or NOD for Asthma/Bronchitis, VA will most likely focus on these claims and not your PTSD. So you should have no worries about them trying to reduce your current rating.

You can file a CUE for the 2004 rating decision and a NOD for EED for the 2013 rating decision at the same time to try to cover your basis and not lose out on a timely appeal.

Hope others will chime in.

Pete

Pete-

I have been hoping somebody could give me a solution like this. Something has been at the back of my mind regarding this solution you mention but I've never been able to quite summarize it like you just did, thank you!

I'm going to fire my POA now on ebennies. But before I do, do you guys recommend I just leave no POA or search for a different one?

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I'm going to fire my POA now on ebennies. But before I do, do you guys recommend I just leave no POA or search for a different one?

Again this would be your decision. You do not need a POA to help you in filing claims. Keep in mind that you are already TDIU P & T and you will most likely not be filing too many claims anyway. You can always choose to get a new POA later or you can use hadit and other veterans web sites for help. You can also get a lawyer later if you need one for your NOD and/or Cue.

Pete.

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I wanted to run by you awesome Veterans what I've written so far for a NOD. I have no idea how to write these things or whether I'm way off base or need to include a bunch of legalese, so don't laugh, I'm an amature!

In October 2004 VA denied a claim for "Bronchitis". In that decision letter VA goes on to informally infer a claim for Asthma, stating "Service medical records show you were seen on several occasions with complaints of flu like symptoms, allergy problems and asthma. No reference is made to bronchitis." "The treatment records turned in for this claim show a past history of asthma."

In 2003 when I filed a claim for "bronchitis" and proceeded to turn in medical documentation of "asthma" I truly believed "bronchitis" and "asthma" were one and the same. I am not a doctor and not qualified to diagnose myself. All I knew is I had a hard time breathing, it was caused by my service in the Army, I had medication for it and I was making a claim for my breathing symptoms.
In this Notice Of Disagreement, I would like to ask the VA to consider the case Clemons VS Shinseki, 23 Vet. App. 1 (2009).
I contend VA's error is in not assigning an effective date back to the 2003 claim for bronchitis, as I was filing a claim for my breathing symptoms, VA acknowledged the asthma disability in their decision but never rated it, therefore leaving the asthma claim un-adjudicated.
Also, there is a sentence in that decision letter that is wholly false in regards to bronchitis during service: "No reference is made to bronchitis."
On receipt of a copy of my claims file in 2013, I reviewed my service medical records that have at least 3 entries of "bronchitis" in them as well as numerous entries for "URI".
In regards to the "bronchitis" denial, my POA, Disabled American Veterans, has submitted a CUE claim to be separately considered.
What do you all think so far?
Edited by SigBnSoldier
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