free_spirit_etc

Thanks harleyman. That is what I have seemed to notice, but I was wondering if that was people granted later SC. So, for instance, if my husband was granted SC for arthritis of his lumbar spine several years after service, I could get that -- as the arthritis didn't manifest to a degree of 10% or more within one year. But I was wondering if, since arthritis did manifest to a degree of 10% or more within one year, if it could be handled differently as a chronic condition under 3.309 - and whether subsequent manifestations would be connected under 3.303. I wonder why, if they only grant SC for service connection of arthritis if a joint is injured, why do they have it listed under 3.309 under chronic diseases. With arthritis caused by trauma - it would be granted SC anyway, without the presumption. I have read quite a few cases where the VA examiners stated that someone's arthritis was NOT caused by service, even though they had an injury, because their arthritis was bilateral. If only one knee was injured, and the arthritis was in both knees, they opined it was not caused by the injury. But then, it seemed like the reverse could also be true. Since my husband had bilateral arthritis in both shoulders, (but the right more than the left) and both knees, and his cervical spine - then it the bilateral condition looks like he had primary arthritis (as opposed to or in addition to) traumatic arthritis. And if his arthritis had manifested to the degree of 10% within the presumptive period (under 3.307 and 3.309) then it seemed like service connection could be granted under 3.303 regardless of whether the arthritis was primary or traumatic. 3.309 doesn't differentiate between rheumatoid arthritis and other types of arthritis. It just indicates that arthritis is a chronic disease that is subject to service connection if it manifests to a degree of 10% within one year of discharge. So it is puzzling that the VA would require trauma. I was just wondering because since the VA kind of railroaded my husband on some of these conditions, but many of them are most likely final -- I thought maybe the claimed could be advanced on the increased rating theory. Trauma-wise, I think he should have been SCed for his neck and his shoulders. But it is probably too late to do anything about it on the injury basis at this point. I think they adjudicated his claims very poorly. I am wondering how true this was for lots of retirees because: 1. They were well-trained to accept (on some level) what the government told them. 2. Until 2004, they lost retirement pay dollar for dollar for the disability benefits they received - so fighting hard for 10% was not a huge priority.

"I would tend to think it might be best to get SC first, and then worry about the effective date" That is the most important goal of any claim. It isn't 'best ' to get ...it is Mandatory to get.. Get SC first. Get SC and then work from that and keep going any other potential issues that directly involve the SC, in process. Such as accrued, potential secondarys etc etc ............. Ah good! That eases my mind a lot! And makes my life at this point MUCH easier! I have already brought up that there are possible other issues for accrued benefits besides the cancer. So they are "before the Board" somewhat. But I haven't really developed them - and would really prefer not to muddy the water, so to speak, while the BVA is considering my DIC claim. As my husband's discharge physical is not in his file, I am wondering if I can ask the BVA to defer the issue on accrued benefits for other conditions, and remand to the RO to assist me in trying to get a copy of his discharge physical before deciding any of those claims. I requested the RO to look for the discharge physical and they said they couldn't find it. I also requested it from the BVA - and they said it is not associated with his file. After reviewing the records, I don't think it was in the file when they decided ANY of his claims. So to give me more time to work on the other issues, and to keep from complicating the claim at this point when I am trying to get DIC, I am wondering if I could just request that the Board remand the claim to the RO in regard to other potential entitlements for accrued benefits besides the cancer - as the RO has not explored whether there were any other potential pending claims in the first instance, and as the discharge physical is not part of the record, but the VA has not exhausted their remedies to locate it under the duty to assist. Free spirit we have considerable info via our main page here on the claims process ,from A to Z. We have the whole 9 yards from VARO to BVA to CAVC to even the Federal Circuit court. Thanks! I will look through that! The answers to many of your questions are here. I use Goggle instead of our hadit search feature, and I google what I need (say Nehmer accrued) and then add hadit.com after the search words. Plenty will pop up. I do that too! I even do that to find some of my own older posts. LOL And believe me - I am not just sitting here asking questions instead of researching myself. I research and research and research! That is pretty much my life right now. If the VA awards your DIC claim, and if there were pending claims when your husband died, and you have a valid accrued claim in process or in appellate status , the DIC award will possibly impact on your pending accrued claim. Yes. The main pending claim for accrued benefits was my husband's pending claim for his cancer. So getting DIC for that would make it more likely that the accrued benefits claim would be granted (as long as the VA decides there was enough evidence in his file on the date of his death to grant the claim). Possibly. Hard to say. 2 of my DIC awards had nothing to do with my initial accrued claim. Accrued claim for PTSD SC. 100% P & T filed Jan 1995 awarded June 1997. Third DIC award: CUE for SMC accrued under 1151 filed 2004,ten years after the veterans death. I am wondering if I should ask for this at this point. But I think it would only be for about a month, on the housebound issue. The 1151 100% accrued award had nothing to do with the Nehmer AO death award (2012)or the DMII death award.(2009) It did have to do with the 1998 DIC award. That is why I say 'possibly.' a DIC award in your case could affect your pending claim for accrued benefits.If you have a pending accrued claim.

I emailed Chris Attig and will post his response Thanks! I wasn't sure what he meant, but I found the idea interesting. You are right, the VCAA overcame the Duty to Assist regs. Failure of Duty to Assist is no longer an option for any claimant ,in my opinion, to even think about when appealing a claim these days. I am not quite understanding that. There are still quite a few cases where they discuss the duty to assist, like this one http://search.uscourts.cavc.gov/isysquery/82393366-c470-4761-8adb-26558e6a12ba/7/doc/ A Violation of the VCAA,of course, would be, and it was a factor in my BVA case. But probative evidence can mitigate detrimental legal errors in an illegal VCAA letter. Any good VSO or rep should go over VCAA letters carefully. If they dont, and the letter is deficient, in any way to the veteran or survivor, the rep or the claimant should raise Hell with the VARO.....ASAP!.. unless the claimant wants the BVA to remand the claim for the legal violations of the VCAA, and that adds many years to any claim. That is why I would want to see if I could get granted DIC and accrued benefits FIRST, and then file for an earlier effective date (if, in fact, I have a basis to do that) - which is why I asked in a different thread if the BVA awarded accrued benefits, if I could file with the RO for an earlier effective date. If I could, then I would prefer to just get SC granted at this point - and wait the years for the rest to be adjudicated. BUT, if the only way to challenge the effective date would be to appeal to the CVA (if the Board granted accrued benefits, but with a different effective date than I wanted) then I would need to place those issues before the Board at this time (in order to have a basis to appeal). Actually, what I would have to do is to weight the costs and benefits of doing so. As long as I get DIC granted, that is the most important part. Accrued benefits for the cancer would also be nice. I don't think I would want to put those at risk, or at the risk of adding several more years before they are even granted, in order to establish a possible earlier effective date at this time. BUT I still like to explore the issue and so I can make a fully informed decision about how to proceed.

"One more piece of free advice (that means you get what you pay for). BE RIGHT. If you are one of those folks who has 14 claims pending and little chance of proving any of them, I wish you nothing but good luck, but YOU are your worst enemy. Don't be a crackpot, because unfortunately, they also, IMO get "someone's attention". I get a bit puzzled with conflicting information that people should file for everything they think they are entitled to, but also if they file for too much, it could hurt their chances of getting anything approved. When I first looked at my husband's C-file he would appear to be "not credible" because many things were denied. But when I looked closer, he had a legitimate basis for all the conditions he claimed but they were still denied. Part of that could be based on the fact that he attributed many of his conditions to Gulf War illness. The VA was able to slip right past considering whether the conditions could be service connected based on their subsequent diagnosis's - and based on the record, they certainly could have been SCed. I mean - for gosh sakes - On his claim for headaches he described two headaches. One started above the right eye and had pressure down the right cheek. The C&P examiner had his sinuses x-rayed and they showed sinusitis and blockage on the RIGHT side (right where my husband said he has pain).. He opined that my husband’s first headache was a manifestation of chronic sinus disease. He also noted my husband underwent an x-ray of his sinuses on September 3, 1982 and the xray was shown ethmoid and maxillary inflammatory changes of the chronic type. Yet the VA said "A review of service medical records showed diagnosis of sinusitis in September 1982. A chronic disability with sinusitis is not shown by the service medical records." They overlooked the fact that the condition was diagnosed as chronic in service with x-ray evidence, even though the C&P examiner pointed it out. The second headache started at the back of the neck and radiated up to the temples. The C&P examiner diagnosed them as cervicogenic headaches secondary to hypertrophic degenerative osteoarthritis of modest degree. My husband had claimed for cervical strain when he retired. Though his SMRs showed a neck injury, the C&P examiner at that time said his condition wasn't "disabling." They continued to say it wasn't disabling on subsequent exams, though he showed limited range of motion in extending his neck and the 2002 exam finally started showing some evidence of bone spurs on the x-ray. The 2003 C&P examiner made a copy of the 2002 x-ray and noted that the facet components in the x-rays were obscured by position, and he drew lines and pointed out how the x-ray (done the year before) showed calcification in the interior long ligament. So, the x-ray evidence was finally starting to show what my husband had told them from the time he retired - His neck hurt. But the VA just noted that the doctor had noted that the headaches were cervicogenic headaches secondary to hypertrophic degenerative osteoarthritis (and thus, they weren't an undiagnosed illness). These, and other claims, were clearly supported by the evidence in the record. The VA did not have to dig too deep to find that - In fact, they had to ignore that the C&P examiner stated his sinusitis was diagnosed as chronic in service, and they had to ignore the fact that the C&P examiner used the 2002 x-ray (that was taken to determine if his cervical injury was disabling) in order to deny the claim. But these claims still sit there in his record, denied, making it look like he filed multiple claims for conditions that were not related to the service. So a BIG part of my wanting to see if any of those claims could still be considered for accrued benefits is not about the money. It is about standing up for my husband's honor and saying "Damn it! He told you he hurt!" Special thanks to the three "elders" on this site who told me I needed my head examined for contacting VBA the way I did concerning my claim. Please send me an email address and I will send you a dated copy of my rating decision. Okay. Now I am interested in finding out how you contacted the VA "the way you did."

I want to clarify the part about the CUE claim. I understand that if the VA makes a clear and unmistakable error in MY claim that I can file a CUE. But as a widow, I cannot claim that I am entitled to benefits, or an earlier effective date, on the basis of a CUE committed in MY HUSBAND'S claims. Sorry I wasn't clear on that.

The award mentioned at Chris Attig's site was a Nehmer accrued award. Nehmer accrued is different from non Nehmer accrued and that is all explained in in the Nehmer Training Guide. In a different post her I caught this that you posted: “But – as a widow, CUE is not an option. “ In some cases it is. I won an accrued award under CUE for SMC accrued last year. The whole story is here in the CUE forum . It was included in my Nehmer decision but was not regarding a Nehmer claim at all. Thanks. I am sorry. I should have been more clear. I know I would have the opportunity to file a CUE if the VA made a clear or unmistakable error on MY decision for MY claim (for DIC and accrued benefits). But as a widow, I cannot claim a CUE in regard to my husband's claims (i.e. I cannot claim I am entitled to accrued benefits on the basis that the VA committed a CUE on one of HIS claims) I filed that specific claim 10 years after the veteran died. The VA had made 3 legal errors in my DIC award and on the rating sheet. Have you contacted Chris Attig? No. I have not. I just ran across the information a couple of days ago. I had to technically “re -open' my husband's pending claims when he died. I wasn't clear on that. I know harleyman suggested I reopen my husband's claims. But I thought the only claims I am entitled to accrued benefits on are claims that were pending. You might fall under the newer “substitution” regulations. They are explained here at hadit. I don't think I fall under those. My husband died in 2007. I think the law that allows a widow to substitute for the veteran (and continue developing the claim) went into effect in 2008. When I was searching for a VSO after my claim was certified to the Board, I ran across a VSO who insisted that my husband's claim died with him, and that if I had not filed to substitute myself on his claim within the prescribed period I did not even have a claim. He was treating me as stupid, while he was providing me with incorrect information in regard to MY claim (pre-2008 death) and so I figured he wasn't the VSO for me. In any event, I had to continue to support my older 1995 accrued claim with evidence. I saw my old accrued award the other day. I always said here that took 3 years but it only took a little over 2 years. It was the DIC claim that at took 3 years. I guess this is where I am stumped because the regulations at the time my husband died said the decision is made based on the evidence in the file as of the date of death. So I am not clear about what additional evidence can be considered in support of the claim. However, as my DIC claim and the accrued benefit claim for cancer are intertwined - I can submit all the evidence I want to - and the VA can sort it out. But as the regulations state accrued benefits claims are based on the record at the time of the veteran's death, I like to keep pointing out that the new evidence substantiates the evidence that was already submitted. If your DIC claim succeeds, it could impact on the accrued claim you have pending. Thank you. I know that, but I was wondering about the duty to assist issue in regard to an earlier effective date, as well as for accrued benefits for other conditions. I do find it odd that Attig mentioned a violation of “Duty to Assist” regarding the widow who won . "if the Veteran would have provided that evidence to prevail in his or claim but for a failure in the VA’s Duty to Assist, then it is possible that an “accrued benefits” claim can be reopened for submission of additional evidence." But I believe he said it regarding the veteran (who had filed his claims post VCAA) My husband filed his initial claim for cancer in 2001, which was after the VCAA.

Owning rental or investment property is okay. Managing such property could be considered gainful employment. I agree with JimMac - you might want to get a management company, or a family member, to manage it for you. http://www.va.gov/vetapp13/Files2/1317141.txt "Although the Veteran has consistently reported in written statements to VA that his PTSD has been chronic and severe since 2004, rendering him unable to sustain gainful employment and causing him total occupational impairment, and has also reported in written statements to VA that he stopped working in July 2003 as a result of his PTSD, several of the treatment records dated prior to June 7, 2008, do not corroborate this assertion. More specifically, an April 2005 psychiatry note reveals that the Veteran reported managing an investment business and taking care of real estate and was "semi-retired, but making a living;" and a November 2005 pulmonary outpatient consult note reveals that the Veteran reported current part time employment in a real estate business in sales/investments with his son. In addition, the Veteran reported being self-employed as a real estate investor at the time of the August 2004 VA examination and a December 2006 letter from Commerce Bank of Kansas was addressed to the Veteran at a lawn and tree service." Social Security considers income from rental property to be investment income; and not earnings from employment. In fact most of the cases I found were involving people who were claiming part of their rental income as employment income for services they provided to try to qualify for having enough quarters of covereage. http://www.ssa.gov/OP_Home/rulings/oasi/47/SSR75-18-oasi-47.html, http://www.ssa.gov/OP_Home/rulings/oasi/47/SSR65-28-oasi-47.html Yet still, what Social Security counts as employment income for qualifying for benefits is not always the same for what they count as employment income when receiving benefits. So I still wouldn't want to push the issue by doing any substantial active management. Collecting rent and doing a small amount of management should be okay. But substantial management of anything that is earning money could be risky.

"I would not trusrt filing things on line further than I could throw my desk" LOL - With your back -- that isn't far! BUT before you hurt your back while in the service... I imagine you could give it quite a toss...

Speaking of making sure you address every issue with the BVA, as you cannot add evidence or argument between the BVA and CVA - If the BVA grants service connection, but you don't agree with the effective date - do you file a claim for an earlier effective date with the RO and then work up through the system again - Or do you have to appeal that issue directly with the CVA. I would tend to think it might be best to get SC first, and then worry about the effective date. But if the next step would have be the CVA, and not back at the RO, that might change things.

"all claims are being processed as usual." That is disappointing. I was hoping they would process them better than usual....

"This is my first claim but I have 10 issues attached to it, expecting a long road." Yes. You might as well start drafting your letters to request increases... ;) But hopefully you will get all your conditions SCed - and not get low-balled too much. In reviewing my husband's claims, I see they really take advantage of veterans who trust them to play fair. They tell you the doctor said things he didn't say, and that your records don't say things that they do say - and count on you to never bother to check to see if what they said is true. But you are already on top of that! And you are on top of the game and looking out for yourself. So you should do just fine!

I am trying to figure out if my husband had any claims that might be pending and unadjudicated. These are conditions that my husband had claimed due to Desert Storm. As each claim stated it was considered due to undiagnosed illness (with the exception of the one they labeled “trouble sleeping as due to undiagnosed illness and sleep apnea), I am wondering if there would be a base for accrued benefits as the claims were not developed and adjudicated in regard to whether they could be granted on a direct service connection basis. Some of the conditions note they were not shown to be chronic in service; others don’t mention that. And even the conditions that they state were not shown to be chronic in service aren’t really accurate. For instance, on the breathing difficulty, it says there was no chronic breathing difficulty or respiratory condition during service – but his service records show that he had chronic bronchitis in 1985, and in 1996 had a coughing fit from a bout of bronchitis which caused him to develop rib pain that lasted 6 months. For the sinusitis, it says that wasn’t shown to be chronic in service, but the records show he treated for sinus problems several times and was diagnosed with chronic sinusitis after an x-ray showed ethmoid and maxillary inflammatory changes of the chronic type. So they were just blowing smoke for what the SMRs showed anyway… But – as a widow, CUE is not an option. I either have to show that claims were pending and not yet adjudicated, or that there were missing service records that were not considered. I might be able to submit the report on the sinus x-ray, and the chronic bronchitis – and point out that those records apparently weren’t available when they made the decision, otherwise they would not have said that those conditions were not shown to be chronic in service. Also – they did not provide my husband with a respiratory exam before making a decision in regard to the breathing problems. They did pulmonary function tests in 2002 which showed definite breathing problems, but the so called respiratory “exam” in 2002 was only the VA examiner writing an opinion on whether my husband’s lung cancer was caused by asbestos. They didn’t examine him at all for respiratory problems in 2003 (This claim). But as far as the diagnosed conditions – can they all be considered pending and nonadjudicated (except the sleep apnea) on the basis of this statement of case – since they just indicated that they were considered in respect to whether they could be granted SC as undiagnosed illnesses? Or if the ones that the VA noted were not shown to be chronic in service (which was often untrue) are considered adjudicated, could the other ones where they just stated the diagnoses without discussing them further still be considered pending? (Like the emphysema, interstitial fibrosis, depression, cervicogenic headache secondary to hypertrophic degenerative osteoarthritis)? Or is anything that has to do with joint pain, breathing difficulty, trouble sleeping, feeling tired, and headaches deemed denied and final? Service connection for joint pain is denied. Service connection for short term memory problems is denied. Service connection for breathing difficulty is denied. Service connection for night sweats is denied. Service connection for trouble sleeping is denied. Service connection for constantly feeling tired is denied. Service connection for headaches is denied. Evidence 1. Letter from veteran received 3/31/03 2. Correspondence sent to the veterans dated 4/24-03 , 6-4-03, and 8-12-03 3. Treatment reports from XXXX Air Force Base dated 8-9-00 to 11-13-03 4. Statements in Support of Claim from the veteran and XXXX dated May 9, 2003 and May 12, 2003. 5. DD Form 214 6. Evidence in the veteran’s claims file including service medical records darted June 1970 to June 1998. Service connection for joint pain as due to an undiagnosed illness. We denied service connection for joint pain as due to an undiagnosed illness because the joint pain has been diagnosed as tendonitis of both shoulders and patellofemoral syndrome of both knees. At the VA examination you complained of shoulder pain and knee pain. Examination of the shoulders revealed no gross deformity. Examination of the knees showed no functional impairment. The VA examiner gave a diagnosis of tendonitis of both shoulders and patellofemoral syndrome of both knees. A chronic disability of the shoulders is not shown by service medical records. A chronic disability of the right knee is not shown by the service medical records. Service connection was previously granted for chronomalacia patella of the left knee. The “Persian Gulf War Veteran’s Benefits Act” authorizes VA to compensate any Gulf veteran suffering from a “qualifying chronic disability,” resulting from an undiagnosed illness or combination of undiagnosed illnesses, appearing during active duty in the Southwest Asia theater of operations during the Gulf War, or to a degree of 10% or more within a presumptive period following service in the theater. Section 202 of the “Veterans Education and Benefits Expansion Act of 2001” expanded the definitions of “qualifying chronic disability” to include (1) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms: and (2) any diagnosed illness that the Secretary of the VA determines in regulations warrants a presumption of service connection. Service connection for breathing difficulty as due to an undiagnosed illness. We denied service connection for breathing difficulty due to an undiagnosed illness because the breathing difficulty has been clinically diagnosed as emphysema and/or obstructive sleep apnea., nor is there evidence of a chronic breathing difficulty or respiratory condition during service. A review of the service medical records showed complain of difficulty breathing in May 1971 and impression of upper respiratory infection. The treatment records from XXXAir Force Base showed a diagnosis of non small cell lung cancer and follow-up needed for interstitial fibrosis and emphysema. Lung resection was completed on September 29, 200. VA examination showed you reported your spouse said you snore and on occasion stop breathing. A sleep study showed a sleep efficiency of 80% with REM sleep for 2 hours 42 minutes. On nasal CPAP you had a sleep efficiency of 80% with REM sleep for 2 hours 3 minutes. A CPAP unit was recommended for obstructive sleep apnea. VA examination of March 2002 showed emphysematous changes that were highly suggestive of and consistent with a long history of cigarette smoking. The “Persian Gulf War Veteran’s Benefits Act” authorizes VA to compensate any Gulf veteran suffering from a “qualifying chronic disability,” resulting from an undiagnosed illness or combination of undiagnosed illnesses, appearing during active duty in the Southwest Asia theater of operations during the Gulf War, or to a degree of 10% or more within a presumptive period following service in the theater. Section 202 of the “Veterans Education and Benefits Expansion Act of 2001” expanded the definitions of “qualifying chronic disability” to include (1) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms: and (2) any diagnosed illness that the Secretary of the VA determines in regulations warrants a presumption of service connection. 5. Service connection for trouble sleeping as due to undiagnosed illness and sleep apnea. We denied service connection for trouble sleeping as due to an undiagnosed illness because the evidence shows a diagnosis of sleep apnea, nor is there evidence of diagnosis of sleep apnea or chronic disability associated with trouble sleeping during military service. The treatment records from XXXX Air Force Base showed complaints of difficulty sleeping. VA examination showed you reported that your spouse said you snore and on occasion, stop breathing. A sleep study showed a sleep efficiency of 39% with 14% rem sleep for 2 hours 42 minutes. On nasal CPAP you had a sleep efficiency of 80% with REM sleep for 2 hours 3 minutes. A CPAP unit was recommended for obstructive sleep apnea. The “Persian Gulf War Veteran’s Benefits Act” authorizes VA to compensate any Gulf veteran suffering from a “qualifying chronic disability,” resulting from an undiagnosed illness or combination of undiagnosed illnesses, appearing during active duty in the Southwest Asia theater of operations during the Gulf War, or to a degree of 10% or more within a presumptive period following service in the theater. Section 202 of the “Veterans Education and Benefits Expansion Act of 2001” expanded the definitions of “qualifying chronic disability” to include (1) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms: and (2) any diagnosed illness that the Secretary of the VA determines in regulations warrants a presumption of service connection. Service connection for constantly feeling tired as due to an undiagnosed illness. We denied service connection for constantly feeling tired as due to undiagnosed illness because the evidence showed a diagnosis of chronic fatigue syndrome, more likely than not secondary to depression. The current evidence showed complaints of extreme fatigue. VA examinations showed you reported you are tired all the time. You reported that your fatigue came on gradually. You denied any fatigue lasting 24 hours or longer after exercise. You denied any incapacitating episodes that require bed rest. VA examination showed a diagnosis of chronic fatigue syndrome, most likely than not secondary to depression. The “Persian Gulf War Veteran’s Benefits Act” authorizes VA to compensate any Gulf veteran suffering from a “qualifying chronic disability,” resulting from an undiagnosed illness or combination of undiagnosed illnesses, appearing during active duty in the Southwest Asia theater of operations during the Gulf War, or to a degree of 10% or more within a presumptive period following service in the theater. Section 202 of the “Veterans Education and Benefits Expansion Act of 2001” expanded the definitions of “qualifying chronic disability” to include (1) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms: and (2) any diagnosed illness that the Secretary of the VA determines in regulations warrants a presumption of service connection. We previously denied service connection for chronic fatigue syndrome in the Rating Decision dated July 2, 1999. Service connection for chronic fatigue syndrome was denied because the evidence did not show diagnosis of chronic fatigue syndrome during service or a current diagnosis of chronic fatigue syndrome at that time. Although VA examination shows a diagnosis of chronic fatigue syndrome at this time, it is shown more likely than not secondary to depression. 6. Service connection for headaches as due to an undiagnosed illness. We denied service connection for headaches as due to an undiagnosed illness, because the headaches have been clinically diagnosed as headaches, nor Is there evidence of chronic disability of headaches during military service. A review of the service medical records showed complaints of headaches o November 2, 1970 and July 5, 1974. A review of treatment records from XXXX Air Force Base did not show any specific complaints for headache. At the VA examination you described headaches that start over the right eye, and have sense of pressure radiating to the right cheek. You also described a second type of headache that which begins at the back of the neck and radiates to the temples. You described this headache as sharp in nature and fluctuant. You stated that the first headache has been present for many years while the second headache began in the early 1990s. The first headache is seasonable occurring in spring and fall at which time it occurs two or three times per month. The second headache occurs throughout the year at a frequency of once a week. You stated that you take aspirin or Naproxen which have been reasonably effective. X-rays of the paranasal sinuses showed possible ethmoid sinusitis. The VA examiner gave a diagnosis of chronic sinus disease and cervicogenic headache secondary to hypertrophic degenerative osteoarthritis of modest degree. A review of service medical records showed diagnosis of sinusitis in September 1982. A chronic disability associated with sinusitis is not shown by service medical records. The “Persian Gulf War Veteran’s Benefits Act” authorizes VA to compensate any Gulf veteran suffering from a “qualifying chronic disability,” resulting from an undiagnosed illness or combination of undiagnosed illnesses, appearing during active duty in the Southwest Asia theater of operations during the Gulf War, or to a degree of 10% or more within a presumptive period following service in the theater. Section 202 of the “Veterans Education and Benefits Expansion Act of 2001” expanded the definitions of “qualifying chronic disability” to include (1) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms: and (2) any diagnosed illness that the Secretary of the VA determines in regulations warrants a presumption of service connection.

I am a bit nervous reading the guide because I blew my hearing by appointing the VSO. He made NO argument in support of my claim, he didn't want ME making an argument in support of my claim. He didn't submit my written arguments. This is when you have to just jump in and speak up - I honestly didn't know what the protocol was. And I thought since he was representing me it would be NOT good to go against him, around him, or over him at the hearing. It just seems like judge's wouldn't like you showing disrespect to your VSO during the hearing. I realize in retrospect when the judge asked me if I had anything to add, I should have looked at the VSO and asked -- I doubt he would have told me to not add anything in front of the judge. But I was really thrown for a loop when the VSO was so critical of my claim and evidence. I should have NEVER put myself in the position that I did. I prefer to have prepared my argument in advance and read it verbatim into the official record. I had my argument written out. I spent hours and hours fine-tuning it. I know I can still submit it. I am wondering if I should included a cover letter and say I had it prepared for the hearing, but did not get to present it., due to miscommunication between the VSO and myself. So now that I read that the most important things they go by in drafting the decision is the hearing transcript and the judges notes from the hearing, I know I am at a distinct disadvantage when they start making a decision on my claim. It does not sound like there was anything new presented for consideration. I did present my IMOs - and the judge asked me what they said. I know I have strong IMOs - and I can still present a written argument. Mail copies of them to the VBA judge -pronto I did present those at the hearing. The VSO didn't want to - but I convinced him to present those. He didn't "present them" so to speak. But he did lay them up on the desk for the judge. I had written to the BVA to request a copy of my husband's discharge physical before getting an IMO. I also postponed the hearing until the confirmed whether they had it or not. And the judge asked me if I had gotten what I requested from the VA. I told him I wanted to get the discharge physcial before getting the IMO - but that the BVA didn't have the physical. He asked if I got the IMO and I said yes. He turned to the papers that were laying up there and asked if that was what those were, I said yes. He asked what they said. I told him they said my husband's cancer started in the service. Then he looked at the VSO, I think expecting him to speak. But the VSO didn't say a word. So then the judge told me that what I needed to show service connection was a current disability, and in service occurance, and a nexus between the two. He put his hand on my IMOs and told me that those might provide my nexus. So THAT was VERY good - that the judge recognized that. He actually seemed happy when I told him I had gotten the IMOs. JMHO carlie Thanks Carlie! I appreciate it! I probably need to go ahead and submit my argument in the near future. The judge did give us 90 days to submit further evidence - which would end December 3.

"I think it is important to have representation in these affairs because it you go to CAVC you can't add new evidence unless they remand it." That also puzzled me in the guide. He was pretty much saying that you should make sure you only include the least possible, to make it easy for them to decide in your favor. And I can see this in your main argument. But if you are not able to add any evidence or argument between the BVA and CVA, then you need to make sure you have included everything. Where I struggle on this is with my accrued benefits claim. I think I might see if I can get that remanded to the RO. Not the cancer claim, but whether there are any more issues.

I am a bit nervous reading the guide because I blew my hearing by appointing the VSO. He made NO argument in support of my claim, he didn't want ME making an argument in support of my claim. He didn't submit my written arguments. And he just asked my questions about my husband's smoking history, when I met my husband, when we got married, what my husband's jobs were in the service, and if my husband was supporting the Vietnam War efforts when he was stationed in Guam. None of it had much anything to do with proving my case for service connection for lung cancer. It might have, if any of the questions were actually relevant to the theory of entitlement. But they weren't. So now that I read that the most important things they go by in drafting the decision is the hearing transcript and the judges notes from the hearing, I know I am at a distinct disadvantage when they start making a decision on my claim. I know I have strong IMOs - and I can still present a written argument. But I was also concerned when the VSO writing the guide said that if the veteran insisted on advancing a claim that the VSO didn't want to advance, the VSO should give the judge a heads up by stating "the veteran maintains..." That pretty much makes it look like he is saying the VSO should alert the judge what to disregard (i.e. whatever the veteran says...) So, it looks like you are almost better off without a VSO, so the judge at least has to consider YOUR argument, and not just the VSOs.

Can you even IMAGINE if veterans started requesting that their records be maintained in a way that is accurate, relevant, timely, and complete enough to insure fairness to them in any determination the agency makes about them? And either amend records so they are accurate (upon the veteran's request) within 10 days OR notify the veteran within 10 days of their refusal to amend the record, and have a final determination from the head of the agency in regard to their refusal to amend the record, etc. etc. etc. Talk about backlog....

The Privacy Act also each agency shall: (5) maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination;

I think they like to stay away from the Privacy Act though - because it says: (2) permit the individual to request amendment of a record pertaining to him and-- (A) not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date of receipt of such request, acknowledge in writing such receipt; and (B) promptly, either-- (i) make any correction of any portion thereof which the individual believes is not accurate, relevant, timely, or complete; or (ii) inform the individual of its refusal to amend the record in accordance with his request, the reason for the refusal, the procedures established by the agency for the individual to request a review of that refusal by the head of the agency or an officer designated by the head of the agency, and the name and business address of that official; (3) permit the individual who disagrees with the refusal of the agency to amend his record to request a review of such refusal, and not later than 30 days (excluding Saturdays, Sundays, and legal public holidays) from the date on which the individual requests such review, complete such review and make a final determination unless, for good cause shown, the head of the agency extends such 30-day period; and if, after his review, the reviewing official also refuses to amend the record in accordance with the request, permit the individual to file with the agency a concise statement setting forth the reasons for his disagreement with the refusal of the agency, and notify the individual of the provisions for judicial review of the reviewing official's determination under subsection (g)(1)(A) of this section; (4) in any disclosure, containing information about which the individual has filed a statement of disagreement, occurring after the filing of the statement under paragraph (3) of this subsection, clearly note any portion of the record which is disputed and provide copies of the statement and, if the agency deems it appropriate, copies of a concise statement of the reasons of the agency for not making the amendments requested, to persons or other agencies to whom the disputed record has been disclosed; and (5) nothing in this section shall allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding.

I never could understand why the VA uses the FOIA anyway. As these are records about you, they should be covered under the Privacy Act. http://www.justice.gov/opcl/privstat.htm (d) Access to records Each agency that maintains a system of records shall-- (1) upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him and upon his request, a person of his own choosing to accompany him, to review the record and have a copy made of all or any portion thereof in a form comprehensible to him, except that the agency may require the individual to furnish a written statement authorizing discussion of that individual's record in the accompanying person's presence;

So, I am wondering…since arthritis is one of the chronic conditions under 3.309 and 3..303 says that when a chronic disease has been shown within service or within the presumptive period so as to permit a finding of service connection, that subsequent manifestations of the same disease at a later date, however remote, are service connected, unless clearly attributable to intercurrent causes ---- If you have a diagnosis of arthritis in service, or within the presumptive period – would subsequent manifestations of arthritis be service connected, though the manifestations are in other joints? I am not talking about a service connected injury in one joint causing an injury in another joint – or the possibility that the arthritis in one joint “caused” arthritis in another joint. I am talking about with arthritis being a chronic disease, if you had a diagnosis of arthritis within the presumptive period (with a 10% or more rating) could subsequent manifestations in other joints be an increase in disability of arthritis under 3.303 (unless they could be attributed to intercurrent causes)? § 3.307 Presumptive service connection for chronic, tropical or prisoner-of-war related disease, or disease associated with exposure to certain herbicide agents; wartime and service on or after January 1, 1947. (a) General. A chronic, tropical, prisoner of war related disease, or a disease associated with exposure to certain herbicide agents listed in § 3.309 will be considered to have been incurred in or aggravated by service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. No condition other than one listed in § 3.309(a) will be considered chronic. (3) Chronic disease. The disease must have become manifest to a degree of 10 percent or more within 1 year (for Hansen's disease (leprosy) and tuberculosis, within 3 years; multiple sclerosis, within 7 years) from the date of separation from service as specified in paragraph (a)(2) of this section. § 3.309 Disease subject to presumptive service connection. (a) Chronic diseases. The following diseases shall be granted service connection although not otherwise established as incurred in or aggravated by service if manifested to a compensable degree within the applicable time limits under § 3.307 following service in a period of war or following peacetime service on or after January 1, 1947, provided the rebuttable presumption provisions of § 3.307 are also satisfied. Arthritis 3.303 - Principles relating to service connection. (b) Chronicity and continuity. With chronic disease shown as such in service (or within the presumptive period under ? 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word ?Chronic.? When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.

It is good to read this about getting the C-file. I never could quite understand how requesting your records was supposed to slow down your claim, or how the VA seems to be exempt from time-frames set by the freedom of information act.

Does anyone know anything about this? http://www.attiglawfirm.com/blog/va-benefits/veterans-disability-benefits-accrued-benefits-veterans-spouses-and-survivors-often-miss-this-claim-for-additional-compensation/ "if the Veteran would have provided that evidence to prevail in his or claim but for a failure in the VA’s Duty to Assist, then it is possible that an “accrued benefits” claim can be reopened for submission of additional evidence."

Wishing you lots and lots and lots of luck!

john999, I am wishing you so much luck with yourCUE claim!

63Sierra is getting ALL fired up.