EricHughes

The VA is under no obligation to grant Service Connection to a claim that has not been "Continuous". That said, you need to focus on establishing that your condition was indeed continueous. First question: Have you submitted a statement in support of claim relaying to the VA what you relayed to us here? Namely that you where self medicating, and self treating? Second question: Is there someone that you have known closely over the period of time from separation to present that can verify your history? This person need not be a doctor or other expert. But if they are not an expert then they should only state facts that the lay person can observe. For example.... They should not say, "I believe the veteran was depressed". Rather they should state WHY they believed that the veteran was depressed. Example: Veteran would go through periods of time where he would sleep for X hours of the day......

You can file for anything. But I'd call it pyramiding. So odds are the VA will as well. Also, consider the risk that they will lower you rating if you file.

All known releases of Dioxin (Agent Orange) are required to be reported to the EPA. I suggest that you file a FOIA with the EPA seeking all known dioxin releases at Sheppard AFB. Then be sure to give the results of your FOIA to the Vietnam Veterans of America and this forum in addition to sending the reports to the VA.

You need to hire an attorney if you don't already have one. Otherwise you will just end up back on the treadmill.

Dan, I don't think this is the correct place to discuss SPN/SPD or RE codes since they do not concern the VA in a -official- capacity. Though, I've heard stories about them having an impact in some VISN's. If you have questions on SPN/SPD codes your best place to start looking for answers is at www.veterancourtcodes.com That site is dedicated to the kinds of issues that you are asking about. As for the advice I personally have for you..... You are very angry. That is understandable. But this happened over 33 years ago. You would be wise to let go of the injustice of the -past-, such that you can focus on the injustice of the present. The SPD code KDB is for a "Hardship" discharge. There is nothing negative there. It is the correct code for a hardship discharge. The RE-Code 4E indicates a non-waiverable bar to reenlistment this is typically given for medical reasons. Frankly, after 33 years, and given your stated medical condition, I don't think you are going to try to reenlist so again, nothing negative there. Neither separation code merits "Better" treatment. But they don't indicate that you should get worse treatment either. I've known horror cases relating to SPD/SPN codes. This isn't one of them. The Reenlistment Code RE-4E is a blessing in disguise. You can use that to document in service diagnosis of your injury for the purposes of service connection.

NOVA attorney's are generally Pro-Veteran. They will often take cases prior to the NOD pro bono. I however distrust attorneys that are not NOVA, or that practice "Elder Law" and do VA claims work on the side. The later are often selling services to transfer assets to artificially qualify for VA pension. While legal, I don't think that is the congressional intent.

Your particular situation screams for the help of a NOVA advocate. It will require a lot of time to properly develop, and the NOVA advocates typically have smaller case loads than a NSO from a veteran's service organization. Thus, they have the ability to provide the time and attention your case requires. What I think John is getting at is that you need to EITHER show that the pattern of depression continued since active duty. Or that the current depression is related to a service connected condition. It will be easier to show a secondary cause at this time. However, if your depression is recurrent and part of a continued pattern of recurrence that started while on active service -as in a bi-polar- diagnosis then you could get direct service connection. One thing to consider is do you have any service records that are new and material to your claim? If you do, a good advocate can get the VA to get an earlier effective date. One place to look is to request via FOIA the daily desk logs for the dates surrounding your AWOL, and Court Marshal. They may have evidence in them that are not part of the VA record that can drasticlly help you. Your advocate should have info on how to request them.

True. But if the ro has attributed your symptoms to PD you are better off looking for something on the smr that the no or ro missed that supports your diagnosis than challenging the nurses report. If you need to challenge the nurses report see my thread Daubert v Merrell Dow in the claims research forum.

First question: What did you specifically get into trouble for while on active duty? Second question: How long ago where you discharged? Third question: when where you diagnosed with these illnesses?

First the VA is allowed to use there own experts. Second, personality disorder discharges are very hard to overcome. To have any hope of winning you need to prove your symptoms are not do to a personality disorder. That is hard to do. I will try and post more once I get home since typing on an iPhone is clunky at best.

What is the typical turn around time for VA to accept an application for Chapter 31, and set a first appointment?

If it is in a medical record, it probably is "SURG" for Surgery.

Very helpful. Myler v Derwinski was exactly what I was looking for.

Thanks for the heads up on the PEB. That pretty much confirmed what I thought. If I go the PEB route, I still would have to go back to the VA with the new PEB rating in hand for a change in my current rating. I don't think it would make a benefits difference on the DoD side of things at all. And it would be an expensive pain in the but to go through. But it is still an option, if not a very good one.

NSA-Saigon-ET, Both your reality checks and everybody questioning helped a whole lot. I really mean that. I knew I had something. But I had to dig into the c-file to find what I was missing.

Does this clear things up? Or have I simply confused everybody beyond recovery? To Whom It May Concern: Veteran claims a Clear and Unmistakable Error was made on August 24, 2001, and August 4, 2004 rating decisions for benefits. Nature of the Error: In the spring of 1999, veteran was on active duty with the US Army and was referred to the MEB for separation due to asthma that was incurred in the line of duty. After the veteran’s file was referred to the MEB, but before his discharge from service, veteran was treated numerous times for exacerbation of his asthma. This included five trips to the Ft. Bragg Emergency Department including one hospitalization for acute asthma. Each time he was prescribed Prednisone, a corticosteroid. Records of the ED trips or the hospitalization where not brought before the MEB. Veteran was medically retired on September 21, 2001 with MEB awarded asthma rating of 30% absent information regarding his intermittent need for Corticosteroids. Just 18 days after separation, on October 6 1999, veteran filed for Service Connection for his asthma and a few other uncontested conditions. It took the VA until August 24, 2001 to render a decision on this original claim for disability. At that time the VA awarded SC for incurred asthma rated at 30% disabling. Even though the MEB rated the veteran at 30% disabling by the Army MEB, claimant contends VA should have Service Connected the veteran at 60% disabling for asthma effective September 22, 1999 based upon the Service Medical Records generated after the veteran was referred to the MEB. On November 15, 1999 veteran responded to a letter from VA asking for clarification of what disabilities he was claiming. He submitted a VA Form 21-4138, Statement in Support of Claim, with an attached letter of explanation. It is in the C-File and date stamped “Received” November 22, 1999. In the statement in support of claim veteran specifically drew attention to his prednisone prescriptions. However, this Form 21-4138 was not listed as evidence before the RO in the rating decision. Subsequently claimant requested an award for TDIU on May 22, 2003. Claimant’s request for TDIU was denied based solely on his failure to meet the minimum service connected disability requirements set forth by 38 CFR 4.16. However, if he had been awarded the correct rating of 60% for asthma in his original claim, the August 4, 2004 outcome of the May 22, 2003 request for benefits would have been manifestly different. Standard of Review The United States Court of Appeals for Veterans Claims (Court) has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). CUE in August 24, 2001 decision: Element 1(a)i: Facts as they where known at the time: On October 6, 2011 the claimant was reviewing an electronic copy of his C-File and noticed five clinical notes in the Service Medical Record referring to the prescription of “Prednisone”, a corticosteroid for treatment of his SC Asthma condition. These clinical notes are June 24, 1999, June 7, 1999, and three dates that are illegible. Then on October 13, 2011 claimant also located within his electronic C-File active duty prescription records. They clearly show three separate prescriptions for Prednisone in the active duty period twelve months directly prior the effective date of service connection for Asthma and also the date of separation from active service. Drug Prescription # Order # Doctor Date Prednisone M114701254 990707-05953 Arnold, Gerald 07 July 1999 Prednisone M11647567 990612-00420 Duffy, Tim 12 June 1999 Prednisone M11586932 990412-02520 Jaffe, Burton 12 April 1999 Veteran reported two additional prednisone bursts prescribed by Womack Army Medical Center at Ft. Bragg but the substantiating prescription records have been lost from the SMR. Element 1(a)ii Facts as they were before the adjudicator August 24, 2001 findings of facts state “He reported to the emergency room on three occasions for asthma attacks and received treatment numerous times for exacerbations.” Absent from the discussion of facts is the claimant’s prescription record for Prednisone. Also absent from the list of evidence is the veteran’s November 15, 1999 Statement in Support of Claim. Element 2(a) Undebateable Error: The absence of this significant fact, from the reasons and basis discussion for the asthma disability rating is undebateable. Also undebateable is the absence of the veteran’s Statement in Support of Claim -that high lights his prednisone bursts- from the evidence of record. Element 2(b) Manifest Difference: In 2001, to this day, a rating of 60% is warranted when an FEV-1 of 40-55 percent predicted; or FEV-1/FVC of 40 to 55 percent; or at least monthly visits to a physician for required care of exacerbations; or intermittent (at least three per year) course of systemic corticosteroids. [underlining added for emphasis] Note the use of the term “Is warranted” as opposed to the term “Will be considered” used at the 100% rating level. Unlike the latter, the former indicates a non-optional disability award when the conditions are met. Element 3: Compliance with law at time of error: In developing the case, it is essential to obtain medical findings that are stated in terms conforming to the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204 (1994). By failing to include within the discussion of facts, the veteran’s need and usage of corticosteroid bursts in the twelve months prior to separation from service/effective date of disability, the RO failed to comply with caselaw as it existed at the time of error. CUE in August 4, 2004 decision Element 1(a)i Facts as they where known at the time For the reasons detailed above, the facts at the time of the August 4, 2004 rating decision was that the veteran was using prednisone or another corticosteroid to control his asthma condition an average of three times per year. This should have been sufficient to grant a disability rating for asthma of 60%. Element 1(a)ii Facts as they where known to the adjudicator The adjudicator cites no facts regarding the veterans TDIU claim other than the lack of either a single 60% disability rating, or two 40% disability ratings with a net disability rating total of 70% or more as required by 38 CFR 4.16 Element 2(a) Undebateable Error: Denial of the veteran’s TDIU claim on the basis that the veteran did not meet the minimum disability rating standards set fourth in 38 CFR 4.16 is only valid to the extent that the history of the veteran’s disability is valid. The medical opinion shall be rejected when the history upon which it is based in inaccurate. Swann v Brown 5 Vet. App. 229 (1993). In this case the RO’s August 4, 2004 error was predicated upon the above detailed factual error within the record. Element 2(b) Manifest Difference: The decision to grant or deny a request for TDIU is an all or nothing decision that carries with it an implicit manifest difference in outcome. Element 3 Compliance with law at time of error: This is an error of pure fact, not an error of law. The facts before the adjudicator where inaccurate. The error of fact having been corrected in the record, demands a change in outcome. Additional Considerations Within the Official VA Claim File there is a computer Screen Shot dated June 6, 2006 with a date time stamp of 2:48 PM taken from the computer of an Irene Wilson. Mrs. Wilson’s hand written note indicates that the veterans MEB file was located inside another veteran’s C-File. And through out the veteran’s C-File there are date-time stamps showing dates of “Discovery” of various documents in 2006. The presence of this revelation in association with the RO’s failure to list relevant facts is unsettling. Wherefore, for the above-mentioned causes, claimant submits his claim for retroactive revision of the August 21, 2001 and August 4, 2004 rating decisions. He seeks the full sum of back pay due.

Never mind, thanks for everyone's help. Obviously this is more confusing than it needs to be absent everyone having a copy of all rating decisions.

In 2004 I won a 60% rating for asthma using my prescription record at the DRO level using a format very similar to this one. While I understand that the VA likes to see more evidence at the RO level, such rating behavior is Capricious under the law.

No DLCO test was performed.

The case is archived, so there is no link to share. However, I will copy and paste the holding: "Rather, the Board's findings relate to rating criteria which are almost entirely outside the DC 9405 criteria. The rating criteria require no findings as to alertness, coherence, evidence of psychosis, affect, mood, or memory. Nevertheless, the Board found discussion of these factors to be probative. For example, the Board found persuasive the fact that the appellant had not been hospitalized for his disability and showed "no evidence of psychosis." Yet, nowhere in the rating formula is there any requirement regarding hospitalization or psychosis. On the other hand, the Board determined that there was "some evidence of poor abstraction ability, as evidenced by the [appellant's] tendency to be somewhat concrete in his thinking." Although abstraction ability and concrete thinking appear to relate to the DC 9405 criterion of lack of "flexibility," the Board was clearly erroneous in its conclusion that the appellant was "somewhat concrete in his thinking." To the contrary, the only evidence of record showed that the appellant's "abstract thinking is extremely concrete", that he has "poor abstract thought," and that he "tends to be concrete in thinking". We thus reverse that conclusion. See 38 U.S.C. § 7261(a)(4) (Court to reverse "clearly erroneous" findings of the Board). "The Board's consideration of factors which are wholly outside the rating criteria provided by the regulations is error as a matter of law. Pernorio v. Derwinski, 2 Vet.App. 625, 628 (1992). "In using a standard that exceeded that found in the regulation, the Board committed legal error." Id. Therefore, the case will be remanded for the Board to be readjudicated under the correct DC criteria."

I understand this has been frustrating to you folks. But I sincerely appreciate your patience. You really are helping me to clairify the facts. As you don't have the 2001 rating decision, you are missing one important thing. I received a 30% disability rating for asthma from the MEB and was retired on 21 Sept 1999. On October 9, 1999, I filed for SC with the VA. It took the VA until 2001 to rate the original claim for SC. The -original- error was that the prednisone bursts in the 1999 SMR appear to have not been forwarded to the MEB. Thus the MEB rating of 30%. But this should have been picked up on when the VA reviewed the SMR for their own rating in 2001 based on the SMR's and granting a SC effective date of 22 Sept 1999 for asthma. Bottom line, the MEB created an error. The VA failed to catch the error as required by case law. Massey v. Brown, 7 Vet. App. 204 (1994) specifically.

SC for PTSD? Have asthma? Need a nexus? Try submitting this with your claim and asking for an Expert Medical Opinion to see if the study applies to your situation. http://ajrccm.atsjournals.org/cgi/reprint/176/10/983

I deleted the table with the prescription information since the forum webpage does not seam to like tables.

Naw, I sent a copy to him. But he doesn't have time to review it until Friday. Something about hearings, and other vets deadlines. :-P Everything I have posted has been my own work so far. I'm hampered because my NVSLP veteran's handbook is on back order. Well, anyhow. Here is what you guys helped me to produce: To Whom It May Concern: Veteran claims a Clear and Unmistakable Error was made on August 24, 2001, and August 4, 2004 rating decisions for benefits. The United States Court of Appeals for Veterans Claims (Court) has held that there is a three-pronged test to determine whether CUE is present in a prior determination: (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). CUE in August 24, 2001 decision: Element 1(a)i: Facts as they where known at the time: On October 6, 2011 the claimant was reviewing an electronic copy of his C-File and noticed five clinical notes in the Service Medical Record referring to the prescription of “Prednisone”, a corticosteroid for treatment of his SC Asthma condition. These clinical notes are June 24, 1999, June 7, 1999, and three dates that are illegible. Then on October 13, 2011 claimant also located within his electronic C-File active duty prescription records. They clearly show three separate prescriptions for Prednisone in the active duty period twelve months directly prior the effective date of service connection for Asthma and also the date of separation from active service. Element 1(a)ii Facts as they were before the adjudicator August 24, 2001 findings of facts state “He reported to the emergency room on three occasions for asthma attacks and received treatment numerous times for exacerbations.” Absent from the discussion of facts is the claimant’s prescription record for Prednisone. Element 2(a) Undebateable Error: The absence of this significant fact from the reasons and basis discussion for the asthma disability rating is undebateable. Element 2(b) Manifest Difference: In 2001, to this day, a rating of 60% is warranted when an FEV-1 of 40-55 percent predicted; or FEV-1/FVC of 40 to 55 percent; or at least monthly visits to a physician for required care of exacerbations; or intermittent (at least three per year) course of systemic corticosteroids. [underlining added for emphasis] Note the use of the term “Is warranted” as opposed to the term “Will be considered” used at the 100% rating level. Unlike the latter, the former indicates a non-optional disability award when the conditions are met. Element 3: Compliance with law at time of error: In developing the case, it is essential to obtain medical findings that are stated in terms conforming to the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204 (1994). By failing to include within the discussion of facts, the veteran’s need and usage of corticosteroid bursts in the twelve months prior to separation from service/effective date of disability, the RO failed to comply with caselaw as it existed at the time of error. CUE in August 4, 2004 decision Element 1(a)i Facts as they where known at the time For the reasons detailed above, the facts at the time of the August 4, 2004 rating decision was that the veteran was using prednisone or another corticosteroid to control his asthma condition an average of three times per year. This should have been sufficient to grant a disability rating for asthma of 60%. Element 1(a)ii Facts as they where known to the adjudicator The adjudicator cites no facts regarding the veterans TDIU claim other than the lack of either a single 60% disability rating, or two 40% disability ratings with a net disability rating total of 70% or more as required by 38 CFR 4.16 Element 2(a) Undebateable Error: Denial of the veteran’s TDIU claim on the basis that the veteran did not meet the minimum disability rating standards set fourth in 38 CFR 4.16 is only valid to the extent that the history of the veteran’s disability is valid. The medical opinion shall be rejected when the history upon which it is based in inaccurate. Swann v Brown 5 Vet. App. 229 (1993). In this case the RO’s August 4, 2004 error was predicated upon the above detailed factual error within the record. Element 2(b) Manifest Difference: The decision to grant or deny a request for TDIU is an all or nothing decision that carries with it an implicit manifest difference in outcome. Element 3 Compliance with law at time of error: This is an error of pure fact, not an error of law. The facts before the adjudicator where inaccurate. The error of fact having been corrected in the record, demands a change in outcome. Wherefore, for the above-mentioned causes, claimant submits his claim for retroactive revision of the August 21, 2001 and August 4, 2004 rating decisions. He seeks the full sum of back pay due.