ptsd Denied Bronchitis 2004 Approved Asthma 2012

[SigBnSoldier]

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.

[SigBnSoldier]

Philip-

Sorry. Rating sheet showed all SC contentions denied. Found a NSC rating sheet that showed 70% bipolar, 10% graves disease and 0% bronchitis.

[davidlj1958]

M21-1MR, Part III, Subpart iv, Chapter 4, Section D

16. General Information on Respiratory Conditions

Introduction

This topic contains general information about respiratory conditions, including

• the types of chronic upper air passage infections

• coexisting chronic upper air passage infections

• considering multiple upper respiratory tract infections

• considering lower respiratory tract infection, and

• evaluating spontaneous pneumothorax.

Change Date August 1, 2006

a. Types of Chronic Upper Air Passage Infections

Chronic upper air passage infections include

• chronic rhinitis

• chronic sinusitis

• chronic middle ear disease

• chronic tonsillitis, and

• chronic laryngitis.

b. Coexisting Chronic Upper Air Passage Infections

The cause of two or more coexisting chronic upper air passage infections is commonly the same infectious process. However, if two or more chronic infections persist over a period of years, give the probability of causation by separate types of organisms due weight.

c. Considering Multiple Upper Respiratory Tract Infections

If all conditions do not originate in service, there must be evidence of a fairly continuous infection in one or more parts of the upper respiratory tract to warrant service connection for other conditions first manifested after discharge.

Carefully consider the character of the infection and possible intervening causes.

d. Considering Lower Respiratory Tract Infection

There may be a close relationship between disease of the upper air passage and a subsequently developing chronic process in the lower respiratory tract, especially in the bronchi.

[SigBnSoldier]

--Update--

VSO called me a week ago after waiting 4.5 months for him to "get back to you in a couple weeks"...

Says, "I have your Cfile in hand and it looks like you have a good case for an EED. I'll be writing a letter for you and turning it in to the RO and you'll also receive a copy of it. Remember they treat these sort of like a new claim so it'll take a while..."

Stupidly, I forgot to ask him if it was a CUE or just a request for an EED.

Anyway, nothing has showed up on ebenefits and I'm wondering if it even will, anybody know?

[SigBnSoldier]

Yesterday I received my copy of the CUE my VSO turned in to the RO... It's horrible! There's spelling errors, the 21-4138 he turned in is just one long paragraph, isn't clear and doesn't specify any laws VA didn't follow.

This VSO had me wait 5 months so he could turn this in.

Is it too late for me to write up my own 4138 and send it in, or is it just a one shot deal on the CUE request?]

I'd upload it but am worried my VSO reads this site.

[Berta]

"Is it too late for me to write up my own 4138 and send it in, or is it just a one shot deal on the CUE request?]"

"I'd upload it but am worried my VSO reads this site."

If he reads hadit he would have done a better job on it.

If I were you I would write the CUE yourself and ask that it be an addendum to the claim the VSO filed,to clarify the legal errors.

In any CUE I ever filed I always wrote a letter ( I dont use 4138s much....but should)

telling them the decision I am cueing as to it's date and I refer them to the decision itself as an enclosure.

I then tell them the legal errors they made referring to the specific regs etc., in the decision and then I also tell them how their legal error(s) manifested an altered outcome to me at time of the CUE (meaning why they still owe me cash.)

Also I tell the VA of the medical evidence in their possession at time of the alleged CUE which had been established already and is found within the rating sheet of the decision I Cued.

Your other question....if the BVA denies a CUE claim....they often state that the veterans is not prejudiced in filing another CUE claim.

It can be on the same basis but needs to be punched up .

The BVA stated this more then once in this decision :

"5. The veteran has not submitted a valid claim of CUE with
regard to the November 1972 rating decision which granted
entitlement to service connection for balanitis, assigning a
noncompensable disability rating and granted entitlement to
service connection for left knee disability, assigning a
noncompensable disability rating, both effective February
1971, and the claim is dismissed without prejudice to
refiling. 38 U.S.C.A. §§ 5109A, 7105 (West 2002); 38 C.F.R.
§§ 3.104, 3.105(a) (2006)."
http://www.va.gov/vetapp06/Files5/0636559.txt

Any vet can refile a denied CUE without prejudice, if they state it in terms appropriate to the CUE criteria. I think VSOs and reps made up the one shot deal on CUE.

I cited CUE once as soon as I got a bogus decision in 1996.But I really had no idea at all what a CUE was then.
I just threw it in because .I was pissed off.

I sent them my mathematical addition as to what they still owed me.

I then mailed it andnext day I called the adjudicator who made the decision. I had the RO phone number and his name and I called the RO at 7:30 AM and he answered the RO phone himself (by saying Hello) only because it was so early.for anyone to ever call the VA. He was aware of the letter he had just signed and sent to me. and I rattled off the mathematic and ludicrous error the VA had made.

I got the check within 2 months.

Since then the VA has become far more complex to deal with.

The case above is very unusual for anyone who reads......they will note that the vet;'s attorney withdrew his representation of the vet.Also they will note this BVA statement:

"The February 2003 rating determination is not final"

The claim was denied for the most part but also remanded.........for a 1971 Rating decision, a 1985 one, and a 2002 claim decision !!!!!!!!!

I sure think he had an A....hole for a lawyer......to withdraw from his case prior to this remand.


"The RO should contact the NPRC in an
attempt to verify whether the veteran
participated in combat during his period
of service from January 1964 to January
1966."

( this is why veterans should contact NPRC themselves.....sometimes VA should do it, but they dont follow through)

"If such combat status is confirmed,
the RO should readjudicate in
consideration of 38 C.F.R. § 3.304(d),
the veteran's claims of CUE pertaining to
whether a May 1971 rating decision which
denied entitlement to service connection
for a skin disease in feet; lymph node
infection; and, right shoulder
disability, contained CUE; whether a
November 1972 rating decision which
denied entitlement to service connection
for bilateral shoulder disability,
contained CUE; whether a January 1985
rating decision which denied entitlement
to service connection for residuals of
Agent Orange exposure, contained CUE;
whether an October 2002 rating decision
which denied entitlement to service
connection for pharyngitis; lymphangitis;
dental condition; tinea barbae; bee
sting; and, sores/boils on right arm,
contained CUE. Otherwise, the RO should
readjudicate the veteran's claims of CUE
under the applicable provisions. If the
determination of these claims remains
unfavorable to the veteran, the RO must
issue a supplemental statement of the
case and provide him an opportunity to
respond before this case is returned to
the Board."

http://www.va.gov/vetapp06/Files5/0636559.txt

Edited May 6, 2014 by Berta

[Berta]

I forgot to add ( but this is in the CUE forum templates I have here

I always start off my letters re Cue with this statement:

Veterans Administration Regional Office July 13, 2004
111 West Huron Street
Buffalo, N. Y. 14202 Re: XX XXX XXX
Date of Death:XXXXX



"To whom it may concern:

"This is a claim under auspices of CUE, 38 USC, 5109A.

I believe that VA erred in the lack of application of 38 USC 1114 regarding the above veteran’s entitlement to SMC. Although M21-1,Part 6 provides that SMC will be considered and rated as it is an inferred issue for any claim with SMC potential, VA failed to consider a retroactive award of SMC in adjudicating the veteran’s Section 1151 , which I re-opened after his death." yada yada yada .maybe the whole thing is here. 3 CUEs were committed in the decision.

That is the claim on my PC that I won in 2012.

'This is a claim under auspices of CUE, 38 USC, 5109A.' states your legal right to file the CUE.......

the other stuff depends on the CUE

Edited May 6, 2014 by Berta