Should I file a CUE or leave NOD in place?

[ADodge]

I have reposted this because originally I had posted it under someone else's question and I was asked to repost under a new topic.  Simply because I might get more answers and also there might be other VETs out there with a similar situation who could benefit from the advice given.

 I hope I am not repeating someone else's question.  This is not at all easy to understand.  So I'll just ask.  I was discharged in 1984 from the Navy.  I had married an active duty Navy enlisted and so my health care was still at the same base I was discharged from.  After 3 months post discharge the Doctor that was handling my health care suggested I file a claim for Asthma service connected.  Because when I joined the Service in 1980 I did not have Asthma but when I was discharged I was being treated for Asthma.  So I filed the Claim in December if 1984.  I was discharged the last day of March 1984.  And my discharge was honorable so no problem there.  The initial claim was that I filed was for Bronchial Asthma service connected. and it was denied in 1985. I didn't appeal it because back then I didn't know anything about appealing the denial and just figured that was it.  The denial stated THE EVIDENCE DOES NOT ESTABLISH SERVICE CONNECTION FOR THE FOLLOWING BRONCHIAL ASTHMA DUE TO ALLERGY.  Bronchial Asthma denied. (Funny that is what causes Asthma Allergies.  but god knows I grew up on a farm and never had any problems with allergies at least not so much as to cause me a problem with breathing.  And I had never been diagnosed with any allergies either before entering the service.)  Anyway time passed and I forgot all about this claim.  in 1997 I began receiving SSDI and part of my disability was the Asthma and by then I also had COPD.  More time passed and in 2014 the VSO in the town I live in suggested I file a claim with the VA for service connected disability for asthma. So I did.  And after again submitting to PFTs done by the VA I was approved at 60%.  Now I would never have questioned anything after that except that when I filed for the COPD and a few other items I was told that my representative was the DAV.  And I asked why was the DAV my representative and who in the DAV was.  And I was told told that back in 1984 I picked the DAV to represent me.  And I said "  I did???  Why would I do that?  and that response was "because you filed a claim back then.  That was when I thought SHIT I need to get a copy of all my records.  SO I finally did and that is when I learned and remember filing that claim.    So Here is my question.  Since Nothing except the severity of the Asthma has changed since 1984.  Would that initial claim be a CUE?   Wouldn't it be right to file a CUE regarding that claim so that the effective date of the current claim would date back to 1984?   Currently I have a NOD filed regarding the effective date.  But I really feel it is a CUE.  Is that right or not?    And if someone does answer this could you answer like you are explain this shit to a two year old!!!! LMAO  because All of this is just so Damn confusing to me!!!   

Thanks a lot,    

 

I was asked to scan and post some VA C&P reports and I will do that as soon as I get back from meeting with my Local Congressman.  I will keep you all in mind as I ask him about doing the back up of VET Appeals!!! And other Veteran topics!!! 

Aileen

 

SO this is what Bertha asked in response to my previous post of this Question:  

Did you or the rep specifically state "Due to Allergy" on the claim?

Do your SMRs reveal you did, in fact develop allergies in the military?

Can you scan and attach here their reasons and bases for the 1984 claim denial and the evidence they used?

Obviously, with the successful outcome of the 2014 claim for the asthma , the VA certainly considered your SMRs but it seems they missed something in the older denial....so maybe this would even by a 38 CFR 3.156 claim.

I know it is confusing but if we can see the older decision (and we might need the newer one too) we can determine whether there is cause for potentially more retro due to a better  EED.

Did the 2014 claim state the asthma was 'due to' allergies?

Cover C file number, name, address, prior to scanning and attaching it here.

I focused on the 'due to ' part because statements like that can lock us in to one theory of entitlement when other theories could be 'due to exposure to chemicals, via your MOS etc etc.

So Here is what I have but I also have this very strange 600 form that was placed in my medical record at the end of my in-active reserve time.  Notice the date Apr 8 86  See all the things it list that I am suppose to be allergic to.  Well if I had been allergic to all those things before I joined the Navy I would never have been able to join the Navy because I would have died as a child.  Considering I grew up on a Farm!!!!  I mean WTF who the hell is this Captain English and why is he putting this document in my Military medical record years after my discharge????  I don't understand!!!! This is way too screwy!!! 

Edited May 7, 2016 by ADodge
remov files

[syne7]

Thank you.  I appreciate the response. 

The thing I am still stuck on is how can a NOD for a current decision can refer to an older decision and ask for adjustment, without actually being a CUE.  I'll read and absorb more till I catch on.

Thank you for the kind tone and demeanor in your response.

Edited May 13, 2016 by syne7

[Guest]

This comes from 38 CFR 3.156

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:

Me Talking here

The above paragraph is saying that VA will reconsider/re-evaluate any decision if a veteran finds service medical records that was not used in the original decision and make a new decision. The below paragraphs list other records that VA will use in re-evaluating any decision.

(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 (c) 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

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

Me Talking Here

The above paragraph is saying if a veterans' records proves that s/he should have been awarded a certain rating then VA will pay a retroactive payment from that date.

Edited May 13, 2016 by pete992

[syne7]

I don't believe any new service records were found in any of the cases we are discussing in the threads.

[Guest]

Now fast forward to today and you requested a copy of your C-File and you opened an increase in your claims and VA gave you a C & P exam and then granted you 60% for asthmas and 40% for your ankle. (These examples are just hypothetical) but when you reviewed your C-File you found evidence in your records that showed the exact condition as your current C & P exam but VA failed to use this evidence. It was not listed in the evidence used to determine their (VA) decision. So since you just got a decision the best thing to do is to file a NOD not a CUE.

Technically the evidence is new, if VA never address the evidence there is no way a veteran can be sure that VA used it in their decision. The evidence need only to be material enough to warrant a reconsideration and if VA never used this evidence and it is material enough with the rest of the file then a veteran can get an earlier effective date.  VA is notorious for omitting/leaving out pertinent evidence in some decision and when caught have to correct their error.

[ADodge]

I was looking at my 1984 claim and wondering if they did have my records or if they just made a decision made on the evidence at hand.  In other words if they simply made a decision based on the C&P exam and tests I had when I filed the claim back then.  But I found the Copy of the request for my service records, my service medical records and other medical records that were then active at Great Lakes Naval Hospital.  This is where the confusion was for them but had been clarified as was noted on the request.  The hand written note stated "ADJ Vet has other name Horton - Husband is Jason Horton. Please handle this batch with CARE!  Don't know if using husband SSN under Horton."  What is really strange about this note is that my son's name was Jason, my husbands name was Tom.  I found it also strange back then that I remember them asking me to send them a copy of my divorce papers from my previous marriage??!!! Well, I was not the one who had been previously married, that was my husband.  And I had to send them a note clarifying that issue.  I also had to send them a certified letter clarifying the issue of who my husband actually was and what my child's name was!! SO in the end when they denied my claim for Bronchial Asthma back in 1984 they absolutely had ALL my Medical records!!! and ALL of my Military Service Records going back to 1978.  Which showed that I did not start having difficultly breathing until I was assigned to Seaman Apprentice Training school.  The had several PFTs results that had been done while I was active duty and one from when I was a dependant wife. Which was done just one month before I had my C&P exam for my claim.  There was an error made but I am just not exactly sure how to state that it was an error.  Can I dispute how the decision was made back in 1984.  I know that decision was wrong.  I know it was wrong because I didn't have asthma before I entered the service.  My lungs were perfect.  I know I was exposed to something that came out of the AC in the Seaman Apprentice training barracks!  And from that point on I I had to have medication to control the breathing problems I continued to experience.  I didn't diagnose myself with Asthma!   A navy Doctor did, as well as an Air Force Doctor.   And yes asthma is related to allergies, that is what usually proceeds an attack. And that is normally why someone with Asthma takes medication 24/7.  And that is usually for the rest of their lives especially if that person Develops Asthma as an adult.  

What I think is they were wrong back then, and now they are wrong in the date they used as current effective date. I feel that the Effective date should be 1984 ?

  I can't say I  totally understand all the Legal lingo that is used in 38 CFR 3.156 or  20.1403 Rule 1403 or Authority: 38 U.S.C. 501(a), 7111.  I don't think any of it is written for a lay person to understand at any point in time!! And here I thought the FEDS had passed some kind of regulation that was going to change all these regulation to be written in a more clear and concise manner so that the average citizen could read and understand them!!!  I must have dreamt that?? Right?! 

[Gastone]

To CUE or not to CUE?

This past Fri, I had occasion to discuss a recent FDC Award 12/15, EED with  a Retired RO DRO, that Rep'd me at a 6/14 DRO Informal Hearing. He opined that filing a CUE right away, attaching the 10 Pages from my VMC Med Records that clearly support the EED, would be the fastest route. The NOD would remain Locked & Cocked, ready to file at the 11th Hr.

Initially, I was thinking of giving the New Official Request for Review a try, all the EED supportive VA DX's and Clinician Statements are already in the my VMC records. I realized, from past personal experience, that filing the NOD for a DRO Review or Hearing, would have added anywhere from 1.5 to 4+ year wait time.

I don't recall seeing any Success Stories regarding the "Official Review Request," posted on Hadit.

Semper Fi