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

[Berta]

I think Vync posted this link.

I posted one too somewhere here last year from Utube  but after the Peggy stuff there was an audio transcript between a man with an accent and AT&T or some phone company and everytime the phone supervisor put him on hold,(he was hard to understand)  there was a lot of audible and unmistakable flatulence from the man with the accent. Maybe Tbird felt it was inappropriate or maybe it is still here.

I laughed for days over that. Maybe I can find it. We all need good laughs sometimes ..otherwise this VA crapola will drive us all nuts.

[ADodge]

8 hours ago, Andyman73 said:

Peggy is the name of the Eastern European accented dude on that tv commercial, someone calls a service center for some issue, and he answers the phone "Hello this is Peggy" or something like that.

Semper Fi.

ROF LMFAO  Thanks I needed that laugh!!!! 

[Guest]

The YouTube link should be on this thread.

[Andyman73]

Hello, this is Peggy!

[ADodge]

Ok SO this is what I did regarding this NOD.  I submitted a statement in support of my claim which requested that when they review this case that they look at the original claim in 1984 and see that there was a Clear and Unmistakable Error made by the VA in 1984 when my claim for Asthma was denied! That the VA should correct the Error that was made.  That if the error is not corrected from my filing this NOD.  Then I might at some time be forced to hire an attorney and have them file a CUE for me.  I also indicated to them that this would be an unnecessary hardship on me (the Veteran) and my family given the fact that I do have a rare form of Leukemia and the amount of time it takes to file and settle such actions.  And since I have willingly provided the VA with my current status of treatment for this Leukemia and all the current Medical information regarding the status and treatment of this leukemia.  That with this Statement in Support of my claim gives them all the information they would need to determine how great of a hardship it would be for me to have to go through the lengthy process of filing a CUE especially when a review of my records shows without a doubt that in 1984 when my claim was denied it was undoubtedly a CLEAR AND UNMISTAKABLE ERROR made by the CHICAGO VETERANS ADMINISTRATION!    And that if such a CUE were to end up before the board of Appeals.  I do believe there would be some questions as to why the CUE was not settled when it was identified in the NOD!  And I also mentioned the fact that if I was no longer available to continue with the claim that my family would be sure to raise holy hell and that I am quite positive Heads would roll!!!  And though I didn't use those exact words I am sure who ever reads my statement will understand exactly what is being stated.  

I also stopped by the Congressman's office and had a long talk with his VA rep.  Who made a few calls for me.  Now I know some people believe that involving your Congressman or any Politician can slow your Appeal down.  But if you are looking at 6 to 8 years for an appeal to be looked at what does it really matter!!! And they do tell you right up front that they cannot tell anyone to move your Appeal ahead of anyone else and they also cannot tell the VA how to rule on your appeal either.  But what he did tell me was that he would tell the person at the VA what my hardship is. And if they would take a look at my NOD and see if it was going to take a long time or if it was one that could be heard soon?  

Oh I have to say the reason I submitted that statement in support of my claim was because I had researched some recent appeal decisions. And a few of the decisions that I read involved the veteran's disagreement with the effective date due to a previously filed claim that was denied and the veteran had not appealed that decision!!! It seemed to me that the Appeals board really didn't give a rats ass if the Veteran was ignorant of the rules of appealing a claim and that even if the person or organization they had asked to help them never contacted them to inform them of what they could do after the denial of their claim. That didn't seem to matter at all to the Appeals Board and the Appeal was rejected because the initial claim was never appealed!  Now I would have thought the DAV rep would have told me about this! But she didn't.  And back in 1984 it was the DAV in Chicago that was suppose to help me and I never heard anything from them.  SO I guess I really am not that surprised.  SO I figured I might as well write that statement because it certainly wasn't going to hurt anything.  And from my perspective I believe it just might help!

 

Anyway,  I did try to check on the status of my NOD but I don't think that is something that is allowed.  I guess it now comes down to the usual "Hurry Up And Wait"!!!   Oh and I am keeping my fingers crossed!!! 

Edited June 15, 2016 by ADodge

[SigBnSoldier]

I won an EED for asthma with 8 years retro @ 30%.  Mine was denied because I filed for "bronchitis" back in 2003, it was denied, but the rater in his denial said, "Service medical records show you were treated for asthma in service, no evidence of bronchitis..."  Filed for "Asthma" in 2012 and it was awarded.

I filed a CUE and a NOD.  The CUE was denied within 8 months.  That upset me quite a bit, I emailed Sec. Hickey, my NOD was awarded 10 days later.

My situation is different than yours, but a bit similar.  Stay the course.  I didn't read the entire thread, but if you still have a NOD and a CUE submitted keep with it.

Edited June 16, 2016 by SigBnSoldier