Presumptive Within One Year

[iraqrecall]

Ok maybe I am just dumb but heres my question.

If a disability is claimed with in one year of discharge is it considered presumptive?

I have had some medical problems arise after discharge but prior to one year but have been denied because of no nexus in my active duty medical records.

[carlie]

Also, as John 999 posted:

http://edocket.access.gpo.gov/cfr_2009/julqtr/38cfr3.304.htm

[Code of Federal Regulations]

[Title 38, Volume 1]

[Revised as of July 1, 2009]

From the U.S. Government Printing Office via GPO Access

[CITE: 38CFR3.304]

[Page 230-232]

TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF

CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS

PART 3_ADJUDICATION--Table of Contents

Subpart A_Pension, Compensation, and Dependency and Indemnity

Compensation

Sec. 3.304 Direct service connection; wartime and peacetime.

(a) General. The basic considerations relating to service connection

are stated in Sec. 3.303. The criteria in this section apply only to

disabilities which may have resulted from service in a period of war or

service rendered on or after January 1, 1947.

(b) Presumption of soundness. The veteran will be considered to have

been in sound condition when examined, accepted and enrolled for

service, except as to defects, infirmities, or disorders noted at

entrance into service, or where clear and unmistakable (obvious or

manifest) evidence demonstrates that an injury or disease existed prior

thereto and was not aggravated by such service. Only such conditions as

are recorded in examination reports are to be considered as noted.

(Authority: 38 U.S.C. 1111)

(1) History of preservice existence of conditions recorded at the

time of examination does not constitute a notation of such conditions

but will be considered together with all other material evidence in

determinations as to inception. Determinations should not be based on

medical judgment alone as distinguished from accepted medical

principles, or on history alone without regard to clinical factors

pertinent to the basic character, origin and development of such injury

or disease. They should be based on thorough analysis of the evidentiary

showing and careful correlation of all material facts, with due regard

to accepted medical principles pertaining to the history,

manifestations, clinical course, and character of the particular injury

or disease or residuals thereof.

(2) History conforming to accepted medical principles should be

given due consideration, in conjunction with basic clinical data, and be

accorded probative value consistent with accepted medical and

evidentiary principles in relation to value consistent with accepted

medical evidence relating to incurrence, symptoms and course of the

injury or disease, including official and other records made prior to,

during or subsequent to service, together with all other lay and medical

evidence concerning the inception, development and manifestations of the

particular condition will be taken into full account.

(3) Signed statements of veterans relating to the origin, or

incurrence of any disease or injury made in service if against his or

her own interest is of no force and effect if other data do not

establish the fact. Other evidence will be considered as though such

statement were not of record.

(Authority: 10 U.S.C. 1219)

© Development. The development of evidence in connection with

claims for service connection will be accomplished when deemed necessary

but it

[[Page 231]]

should not be undertaken when evidence present is sufficient for this

determination. In initially rating disability of record at the time of

discharge, the records of the service department, including the reports

of examination at enlistment and the clinical records during service,

will ordinarily suffice. Rating of combat injuries or other conditions

which obviously had their inception in service may be accomplished

pending receipt of copy of the examination at enlistment and all other

service records.

(d) Combat. Satisfactory lay or other evidence that an injury or

disease was incurred or aggravated in combat will be accepted as

sufficient proof of service connection if the evidence is consistent

with the circumstances, conditions or hardships of such service even

though there is no official record of such incurrence or aggravation.

(Authority: 38 U.S.C. 1154(b))

(e) Prisoners of war. Where disability compensation is claimed by a

former prisoner of war, omission of history or findings from clinical

records made upon repatriation is not determinative of service

connection, particularly if evidence of comrades in support of the

incurrence of the disability during confinement is available. Special

attention will be given to any disability first reported after

discharge, especially if poorly defined and not obviously of

intercurrent origin. The circumstances attendant upon the individual

veteran's confinement and the duration thereof will be associated with

pertinent medical principles in determining whether disability

manifested subsequent to service is etiologically related to the

prisoner of war experience.

(f) Posttraumatic stress disorder. Service connection for

posttraumatic stress disorder requires medical evidence diagnosing the

condition in accordance with Sec. 4.125(a) of this chapter; a link,

established by medical evidence, between current symptoms and an in-

service stressor; and credible supporting evidence that the claimed in-

service stressor occurred. The following provisions apply to claims for

service connection of posttraumatic stress disorder diagnosed during

service or based on specified in-service stressors:

(1) If the evidence establishes a diagnosis of posttraumatic stress

disorder during service and the claimed stressor is related to that

service, 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.

(2) 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.

(3) If the evidence establishes that the veteran was a prisoner-of-

war under the provisions of Sec. 3.1(y) of this part and the claimed

stressor is related to that prisoner-of-war experience, 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.

(4) If a posttraumatic stress disorder claim is based on in-service

personal assault, evidence from sources other than the veteran's service

records may corroborate the veteran's account of the stressor incident.

Examples of such evidence include, but are not limited to: records from

law enforcement authorities, rape crisis centers, mental health

counseling centers, hospitals, or physicians; pregnancy tests or tests

for sexually transmitted diseases; and statements from family members,

roommates, fellow service members, or clergy. Evidence of behavior

changes following the claimed assault is one type of relevant evidence

that may be found in these sources. Examples of behavior changes that

may constitute

[[Page 232]]

credible evidence of the stressor include, but are not limited to: a

request for a transfer to another military duty assignment;

deterioration in work performance; substance abuse; episodes of

depression, panic attacks, or anxiety without an identifiable cause; or

unexplained economic or social behavior changes. VA will not deny a

posttraumatic stress disorder claim that is based on in-service personal

assault without first advising the claimant that evidence from sources

other than the veteran's service records or evidence of behavior changes

may constitute credible supporting evidence of the stressor and allowing

him or her the opportunity to furnish this type of evidence or advise VA

of potential sources of such evidence. VA may submit any evidence that

it receives to an appropriate medical or mental health professional for

an opinion as to whether it indicates that a personal assault occurred.

(Authority: 38 U.S.C. 501(a), 1154)

[26 FR 1580, Feb. 24, 1961, as amended at 31 FR 4680, Mar. 19, 1966; 39

FR 34530, Sept. 26, 1974; 58 FR 29110, May 19, 1993; 64 FR 32808, June

18, 1999; 67 FR 10332, Mar. 7, 2002; 70 FR 23029, May 4, 2005; 73 FR

64210, Oct. 29, 2008]

[john999]

You know the relaxed standard for PTSD DX'ed in service does not do any RVN vet any good since there was no DX of PTSD at that time. There was acute combat fatigue, but that is not the same as PTSD at all.

[iraqrecall]

Got information off of "Ebenefits" that my NOD was denied because it was not sent in in time. Now its 60 days when I though it was one year.

Will reapply. This is becoming a pain in the butt. BTW I have not recieved a written notice of this in the mail, it just shows on their web site. at

https://www.ebenefits.va.gov/ebenefits-port...ger/eb/veterans

Nothing yet on CRSC which I requested slightly over 30 days ago or any thing on the PTSD or Vocal Cord Polyps.

VietNam 67-68

Vietnam 70-71

OIF 2008-2009

Freedom is not Free

[john999]

The rule is that you have one year to file a NOD after you receive your rating decision. That rule has not changed. I would not accept any other BS as long as you filed a NOD within one year of your rating. You served in jungle boot army so you can beat this thing.

[iraqrecall]

Seems like the Law has changed.http://www.warms.vba.va.gov/admin21/m21_1/mr/part1/ch05/ch05_secb.doc

Change Date December 10, 2009

a. NOD Time Limits The table below describes the time limits for an appellant to file an NOD.

An NOD for … Must be filed …

a contested claim, including an apportionment claim

60 days from the date the Department of Veterans Affairs (VA) mailed the notification of the decision to the unsuccessful claimant.

References: For more information on

• contested claims, see M21-1MR, Part III, Subpart vi, 6, and

• apportionment claims, see M21-1MR, Part III, Subpart v, 3.

all other claims one year from the date VA mailed the notification of the decision to the claimant.

Continued on next page

4. Time Limits for Filing an NOD, Continued

b. Computing the NOD Time Limit When computing the NOD time limit

• exclude the first day of the specified period

• include the last day of the specified period, and

• if the time limit expires on a Saturday, Sunday, or legal holiday, include the next workday in the computation.

If the postmark date is

• prior to the expiration of the NOD period

 consider the NOD timely filed, and

 retain the postmarked envelope, or

• not of record, presume the postmark date to be five days prior to the date VA received the NOD, excluding Saturday, Sundays, and legal holidays.

c. Informing the Appellant of an NOD That Was Not Timely Filed If an appellant files an NOD past the time limit

• inform the appellant via letter, and

• send VA Form 4107, Your Rights to Appeal Our Decision, with the letter.

The issue that an NOD was not timely filed is, itself, appealable to the Board of Veterans’ Appeals (BVA). See M21-1MR, Part I, 5.B.5.d.

d. Handling a Time Limit Extension Request An appellant may request an extension of the time limit for filing an NOD.

In this situation, the time limit may be extended if the appellant shows good cause. 38 C.F.R § 3.109 provides that a request to extend the time limit may be made either before or after the expiration of the NOD period, although this regulation does not define good cause.

An appellant may appeal a denial of a request for a time limit extension to BVA.

[Pete53]

All the more reason to file NOD as soon as you need one. This change caught many Veterans by surprise and is very wrong in my opinion. Why would some Agency that was over burdened make a sneaky rule like this?