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Is This Cue? Denied Comp For In Line Of Duty Injury That Resulted In 35-4 Medical Discharge For Permenant Disability W 10% Rating
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BasehorVet
I thought I would pose this question to the CUE experts and see what their thoughts and advice would be. Bottom line is that I was discharged from the USAF in 1985 under a medical discharge 35-4 with a narrative reason for separation on my DD214 as "Discharge by reason of physical disability with entitlement to severance pay". My original DD214 was replaced with a DD215 that is dated 3 weeks after my date of discharge because it had the wrong SS#, last week I filed for another change using a form 149 to correct the separation code on the DD214 from the incorrect JFL to the Air Force specific JFL1.
I was injured in the line of duty and have a Line of Duty Determination AFR 35-67 in my medical files and in my possession.
I have a Form 88 Report of Medical Examination for the MEB which states Recurrent back pain 1981 to present (form dated 02 Aug 84) due to fall, treated with back brace and physical therapy, diagnosed a facet syndrome with myofacial chronic pain pattern.
I have a AF Form 356 Findings and Recommended Disposition of USAF Physical Evaluation Board that states 1. Facet Syndrome, Lumbar spine, with low back pain. Unfitting yes, Due to misconduct No, Incurred while entitled to basic pay yes, Degree of impairment is permanent yes, Percent 10% Va diagnostic code 5299-5295.
I failed to appeal the decision dated July 28 1985 and according to my American Legion advocate it was then finalized after one year and it is not possible to claim back pay for compensation based upon the original denial of benefits.
The notification letter stated:
"We have carefully considered your REOPENED claim for service connection of hearing loss and back disability.
We have found it necessary to deny service connection for your back disability because this condition, under existing laws, cannot be classified as a disease or injury. The law allows payment only for benefits only for those disabilities which do result from disease or injury."
I do not know why it states reopened claim, this was the first claim filed upon separation from service.
I did some research and found this tidbit:
Title 38: Pensions, Bonuses, and Veterans' Relief
PART 3—ADJUDICATION
Subpart A—Pension, Compensation, and Dependency and
Indemnity Compensation
General § 3.1 Definitions.
(k) Service-connected means, with respect to disability or death, that such disability was incurred or aggravated, or that the death resulted from a disability incurred or aggravated, in line of duty in the active military, naval, or air service.
(m) In line of duty means an injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. A service department finding that injury, disease or death occurred in line of duty will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the requirements of laws administered by the Department of Veterans Affairs. Requirements as to line of duty are not met if at the time the injury was suffered or disease contracted the veteran was:
(1) Avoiding duty by desertion, or was absent without leave which materially interfered with the performance of military duty.
(2) Confined under a sentence of court-martial involving an unremitted dishonorable discharge.
(3) Confined under sentence of a civil court for a felony as determined under the laws of the jurisdiction where the person was convicted by such court.
(Authority: 38 U.S.C. 105)
To me this means that since the claim was denied that it conflicted with the rules established that the in the line of duty determination binds the VA to recognize the disability and compensate for it. After this decision was made which is in conflict of the laws and rules then anything after that should not have been adjudicated based upon:
§ 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not.
(a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.
I have a request to reopen the claim based on new and material evidence, I had a comp exam last week and scheduled for a MRI in two weeks. The exam nurse indicated to my doctor that I needed x-rays of my hips and I had them done on Friday. So it looks like my claim will be addressed as it should have been 25 years ago and I will be awarded some comp rating.
Any thoughts about my legal musings? Do you think that a clear and unmistakable error of fact or law exists?
Victor
You can find additional information such as the evidence I submitted to reopen my claim at the following hadit post.
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