kevlarsamurai

Greetings, Thank you for the info. This is my last big push hopefully. I started this claim in 2010. (technically 1995) If it fails at the BVA level after the remand I will let it go. These things do wear you down over time. I am retired now and just want to enjoy it without this ghost looming in the background. The obsessive daily visits to ebennies and vets.gov. There is always something to lock down. Some better way to present your appeal. Thanks again. S/ K

Greetings, Thank you for the explanation. I had never heard of it before. It is difficult to sift through the who's who of veterans organizations and even more difficult to find the ones that you can trust. I will definitely check out the website. Thanks. S/ K

Greetings, Apologies, I am having a devil of a time following the messages in this forum. It's different than I am used to. But thank you for the response. I've had a bad run with VSO's. Three different ones. I maintain one as a representative only for the purpose of submitting paperwork and easily accessing VA decisions. I'm not mad at them, but nobody cares more about your claim then you do. All of this is solely on my own research of the legwork you folks have done. My entire success is internet based via online forums. Heard something in a forum, researched what they were talking about, applied it to my claim. I remember the history behind the Well-grounded liberalization. It seems it became a convenient means to catch up on back dated claims files. That was part of my plan of attack for my CUE. During the time of the transition to VCAA I had an open claim and never received a letter offering a relook at the NWG. That was my secondary CUE strategy. Fortunately, I was successful on the first. I am all over the place here and I apologize. Thank you for the assistance. S/ K

Greetings, I never heard of NOVA... other than the mute girl in the original Planet of the Apes. Thank you for that. I know for a fact from my research respiratory had a change in 1975, 1996, and I want to say 2018(?) but I would have to check my notes. I am just being obsessive at this point. I got the general feeling during my hearing that the ALJ was in my favor and was agreeable... Reading his past decisions he has made a lot of veteran favorable stretches of the law. I am confident... but also not stupid. Thank you again. I wish I could find all the VA Highlights on line. That certainly had the cliff notes for the amendments in them. S/ K

Greetings, Thank you. That is good stuff right there. For my diagnostic code there was an Amendment in 1975 which could trip my theory. But this was super helpful for determining the lack of Pulmonary Function testing in prior years as a means of rating. Thank you very much. I think there have been 3 changes to respiratory codes over my window. 1995-2018. Some a little more liberal and others more strict. I'll dig deeper in the BVA Decisions. S/ K

Greetings, I did take your advice and looked up Karnas v Derwinski. This does reaffirm my need to read the older title 38 references to my disability code. If I understand it correctly, to sum it up, it is saying to apply the rule that is most favorable to the veteran because they are in the position of least control over the resulting decision. I just find the ambiguity of law fascinating. I do wish I had had more time to craft a better letter. I submitted a personal statement as to what I felt would be a fair staggered rating in an attempt to guide down a similar road to past decisions without being demanding. I basically offered a staggered decision. I don't want to bombard them with another letter and more evidence. Which leads to... Another question: I have recently been medically retired from federal service due to my COPD and awarded SSDI. Should I send those decisions off to the BVA as evidence? I am already 100% P&T scheduler for the COPD. Is there value in my being found disabled to work by other federal agencies? I know it would be pertinent to an extra-scheduler rating, but maybe not in an EED case? Thanks again. S/ K

Greetings, Now that is interesting. The outcome was (6824) service connection and a 0% rating in lieu of a Not Well Grounded rating and no service connection. Financially, it created an earlier effective date on the (6604) COPD. My thoughts were that this would be pyramiding. Please keep in mind that none of what I have posted is speculating an outcome... it is the outcome, so far. I did receive a partial grant on an admitted CUE at the RO level on a remanded appeal. Respiratory issues seem so simple, but they are completely confusing. This is why I am trying to get access to the 1975 amendments to title 38. Because my theory is, they should have rated the 6824 based on symptoms and not looking for PFT's. PFT's were added to title 38 in 1996. The biggest problem is that COPD is all over the respiratory spectrum. It covers emphysema, chronic bronchitis, bronchiectasis, asthma, etc. All of which are individually ratable in the SOR. My COPD has components of three of those. It's just a doctor chose to call it COPD. This was the RO's decision: 1. The decision to deny service connection for chronic lung abscess, right lobe (also claimed as pneumonia) was clearly and unmistakably erroneous; therefore, service connection is established with an evaluation of 0 percent effective May 24, 1995. 2. Entitlement to an earlier effective date for chronic obstructive pulmonary disease (COPD) is granted and a retroactive increased evaluation to 100 percent disabling is established from September 4, 2009. Keeping in mind that this is two separate entries on my ebennies disabilities list. Not secondary. Thank you for taking the time to assist me. It is appreciated. Much of my CUE information has come from your past posts. S/ K

Greetings, I am not sure how to multi-quote so I will do the best I can. My appeal was on the basis of a CUE in an earlier decision and seeking an EED for COPD. The BVA remanded it back to the RO to address the CUE first and then return. The RO granted the CUE and gave a partial EED. In 1996 the code was (9899) Pneumonia (Chronic Lung Abscesses) and it was found NWG. Last month they reversed and granted the service connection changing the code to (6824) at the 0% rate. My COPD (6604) was given the EED based on the granted CUE. I have no CUE with the BVA decision... they have not made one yet, technically. Let me try this: 19950523 Filed Claim for Pneumonia and Lung Abscesses 19960411 Rating Decision (9899) Pneumonia, NWG Not Service connected 20101013 Rating Decision 100% for (6604) COPD (because of the Nexus between the Lung Abscesses) 20121007 Filed NOD based on CUE in 1996 decision (same medical evidence) and an EED on the COPD 20150327 BVA Remand to address CUE but made no decision yet. 20181108 RO grants CUE and partial EED. Gives CUE 0% for Lung abscesses... No CUE on COPD, but gives EED to earliest PFT on record (does not make COPD secondary to Lung Abscesses.) I did use the board's decisions website to do the research. That is how I learned of the amendments in 1975 and 1996 to the respiratory section. I did find where an asthma rating the board had to use 3 different years amendments to give three different staggered ratings on a CUE. As we know, a CUE has to be worked with the evidence of the time and the law at the time... at least that is my interpretation. In 1996 they started using PFT's to rate. I have a very small window. Thank you for your reply. I hope this clears things up. I was just looking to see if anyone knew of access to the Highlights or older versions of the law. S/ K

Greetings, My remand is going back to the board after a partial grant. I have some questions please. First being, where on line can I view the actual text of the amendments to Title 38? I have a unique scenario... unique to me anyways. The title was amended with regard to my diagnostic code in 1975 and 1996. My CUE was granted by the RO as service connected back to 1995. But they used the rating criteria (I think) in effect for 2018. In 1975, it looks like there was a change to the schedule of rating and another in 1996. The one in 1996 is based on Pulmonary Functions Tests for rating where as it looks like in 1975 it was symptoms/exacerbations/etc. But I can't find the verbiage. Second being, which rules would apply? The original decision was made just before the 1996 rules went into effect. But now that it is a CUE... I am unclear. Third... Do I need to modify my appeal to reflect the CUE decision? I know the BVA is composed of pretty smart folks, but I also know that my appeal needs to be clear and concise. My problem is that I have no PFT's on record and it wasn't the standard back then either. I was granted a partial EED to the earlier PFT. Thanks for any assistance. S/ K

Greetings, I think you may find out that you are mistaken. Your December 19 payment is actually for 1-30 November. SSA puts out your new payment amount on 1 December. Looks like you are on the same pay cycle as me so the first check we will receive for the 2.8% COLA increase will be paid 16 January 2019. That is for 1-31 December. Unless you received an increase for something else... but it isn't COLA. SSDI, FERS DR, and VA Comp doesn't get paid until it is earned. Like a paycheck. I hope this helps explain and not confuse. S/ K

Greetings, Thank you very much. The case history was next on my list. I have been trying to find it in M21-1 and it has just eluded me. Basically, I won my CUE at the RO on a remand, but lacking PFT's I couldn't get the full EED. I actually requested an exam back then and none was scheduled. So, I think, an argument can be made that because I was denied an exam... extra-schedular might apply or... if we truly are benefit of the doubt on rating going to the veteran, 100% now could have been 100% then. But I don't think that is fair. Thanks again. You do great work on here. S/ K

Greetings,I had asked this in other forums and received no response so I wanted to ask here as well. Apologies if you had to read this twice. I might have spent too long looking at codes, regs, etc and I may be reading to much into it... but what exactly does that mean and where is it defined? This is from Title 38; Chapter I; Part 4; Subpart B; §4.96. It is also found in M21-1, Part III, Subpart iv, Chapter 4, Section D ."(d) Special provisions for the application of evaluation criteria for diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840-6845. (1) Pulmonary function tests (PFT's) are required to evaluate these conditions except:(i) When the results of a maximum exercise capacity test are of record and are 20 ml/kg/min or less. If a maximum exercise capacity test is not of record, evaluate based on alternative criteria."What is that "alternative criteria?" Does it mean, use something else to evaluate such as symptoms or is there a chart or something? Thank you in advance.S/K

Greetings, Thank you for the response. I have enjoyed your informative posts on here for many years now. Unfortunately, after military service, there are no medical records until I came back to the states and started going to the VA. That is the 14 year gap. Call it one part hard head and one part couldn't afford health insurance in Germany. When I decided to appeal, I did send my stuff off to three different "Veteran Friendly," law firms. All three wouldn't take me because it was based on a CUE. I am a little hesitant (and spiteful) to go to a lawyer now after all the heavy lifting has been done. I am OK with the RO's decision. The decision maker was the local office director. I understand, like you said, their hands are tied without documentation they can award based on the schedule of rating. First time I felt treated fairly. First time I felt my claim was actually read entirely. Took three years, but hey... I have written up a personal statement and I think it would be great if you folks could review it and tell me your thoughts. I plan on submitting it to forward with my SSOC to the board. It's a compromise and I don't know if I am being to forward in suggesting it. Thank you again. S/ K

Greetings, Without going into everything, I am in a unique position. The bottom-line question I am not understanding is when you have a respiratory condition that the schedule of rating only grants compensation based on a Pulmonary Function Test, does the BVA have flexibility to use extra-scheduler authority to rate the condition? Almost all respiratory conditions come down to the PFT numbers I believe. But what about when the VA grants a CUE and there are no PFT's on record during the period being corrected? On a BVA remand, I was granted a CUE by the RO changing a 1995 NWG contention to 0%. Which created the grounds for a granted EED on my appealed 2010 contention to the earliest PFT on record (2009). That was the furthest that decision maker could go. Leaving a 14 year gap between a 0% rating and a 100% rating. This was an extremely hard fought claim to prove service connection. It was adjudicated three times at the RO because of admin errors. Now that it is headed back to the BVA for final adjudication because it was a partial grant, I have only symptoms to present and no PFT's. Thank you in advance for thoughts, suggestions and comments. S/ K