free_spirit_etc

From what I understand - you wouldn't be granted the presumption of soundness on this one - as the back problem pre-dated the service and were documented. However, you should be granted the presumption of aggravation, meaning that it is supposed to be presumed that your injury was aggravated in the service UNLESS the VA can SHOW by clear and convincing evidence that your problems are caused by the natural progression of the disease, rather than from being aggravated by in service occurances. Luckily --the burden of proof is on the VA to rebut the presumption of aggravation with clear and convincing evidence (a more strigent standard than the "more likely than not standard that the veteran must meet). Unfortunately, the VA seems to be pretty good about clearly undertanding their own logic and convincing themselves - proving they atually can read at times. In a perfect world - and UNDER THE LAW - you are not required to actually prove your condition was aggravated by the service. You are granted the presumptionn unless THEY prove different. However, I wouldn't count on the VA following the law on this - until, or unless they are forced to. You can even take it up to the CVA - and they can see the BVA didn't actually prove their case -- but instead of granting it - they will more likely remand it back to the BVA to further "perfect" their denial. So anything that can help prove your case will be very helpful. I would think that few problems BEFORE service - and SIGNIFICANT problems IN service and AFTER service would be a strong indication that something changed. I wonder why the VA has so much trouble determining that a condition someone has right after the service is connected to the same type of condition they had in the service (when the veteran is to be granted the benefit of the doubt) -- but they can easily leap back YEARS to say something you have long after the service is connected to a PRESERVICE condition.(when they are charged with actually PROVING that it is not). Something just ain't quite right. Free

Jim, My husband taught Sociology. His term for the Powers that Be was "the old white guys." At first students didn't understand the concept. But then he would ask them. Who makes the laws -The old white guys. Who holds most of the power positions in business --The old white guys. Who gets to decide who gets to run for office - the old white guys. The students thought it was pretty funny -- as the thought HE was an old white guy. But they started understanding some of the concepts of power in our society. But he always said that it was in the old white guys best interest if we didn't get along....because the more time we spent fighting with each other - the less focused we would be on the real root of the problem. A group of people with a common interest who become truly united can be very powerful. I helped him do research for his thesis on the VA. Some of it was very fascinating. Here is an excerpt from his Thesis: "J. M. Stephen Peeps writes that, at the end of WW II, “… there is no denying that demobilization of a huge military force posed genuine threats… to post-war America.” Congress and the President feared the large, well-trained force that was returning to US soil during a rough economic time. The GI Bill would help transition these millions back into society while delaying their impact through years of college before they needed to find “real work.” Therefore, while the GI Bill was praised publicly as a “reward” to those who fought, it may have been created privately to avoid an armed insurrection." I can't find the exact details right now - but I also remember that studies were done on veteran benefits --and for every dollar given in veteran benefits - the overall economy actually gained several dollars. So it isn't even the case that taking care of the veterans takes anything away from the economy -- it actually boosts it. Free

I got a message from these folks! I do not know them - but it looks like they are gearing up to represent vets. I work for a law firm, and we are passionate about aiding veterans in recieving the benefits they are certainly qualified for and deserve. Therefore, we are seeking to hire a consultant; specifically, a former or retired VA employee who can aid us in understanding the VA benefit review process. So if possible, I was wondering if you could direct us to some contacts perhaps even organizations or groups who could possibly fulfill this criteria? Maybe even you fit this criteria? If you can be of any help, or if you have any questions please let us know. You can reach us at 800-810-3100 or Dawn.Law.ElderLaw@gmail.com. Thanks you so much for you help! Best Regards, Law ElderLaw

A few weeks would be wonderful. My husband requested his copy last August. He got a form letter ever couple of months telling him they were "working on it." The RO told me it takes about 6 months to get a copy from Chicago. Free

I was just reading some regs in my spare time and noticed once again the Special Monthly Compensation Rates. When I read it before -- I thought it was ironic that they will pay you for the loss of all or part of your "creative" organs -- but not OTHER organs. So teticles, breasts, and ovaries are given more importance than lungs, stomachs, livers, and brains... Kind of odd I think. I used to kid my husband and tell him if he got his lung cancer service connected --then - if he cut off his teticles DURING chemo - he would get a raise (secondary connection). He did not think it was a good plan --and started hiding the knives... Anyway --I now see that it also includes loss of USE of your creative organs. Should I send in a claim for the time he quit using his???? AGHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHHH! Maybe EVERY Vet on should file a claim every month they did not use their creative organs... Let the VA explain THAT backlog to Congress! Free

This lists some of the Diagnostic Tools that are SUPPOSED to be used in diagnosing BPD. Free Sixty-four patients with borderline personality disorder (BPD) were followed up for a mean of 27 years. Outcome was assessed using the Diagnostic Interview for Borderlines, Revised (DIB-R); the Schedule for DSM-III-R Diagnosis (SCID); Global Assessment of Functioning (GAF); the Symptom Check List-90 (SCL-90); and the Social Adjustment Scale (SAS-SR). Most patients showed significant improvement as compared to a previous 15-year follow-up, with only five currently meeting criteria for BPD. Mean GAF score was 63.3, mean SCL-90 raw score was 0.7, and mean SAS-SR score was 2.0. Fourteen subjects met SCID criteria for dysthymia, and this subgroup had a significantly poorer outcome on all measures. The total percentage of suicides from the original cohort has reached 10.3%, with 18.2% of all patients now deceased. Copyright 2001 by W.B. Saunders Company

The presumption of soundness and presumption of aggravation should help if they try to say your disbility started BEFORE the service -- (and it would be hard for them to say that it started AFTER --since you have manifestations in your SMR's.) BOTH of these presumptions apply unless the VA rebuts them with CLEAR and UNMISTAKABLE evidence (this standard is NOT the "more likely than not" variety --they have to rebut it with big guns --the "smells like a dead fish" standards.) (At least that is what the LAW says -- who knows what they will do.... 3.304 Direct service connection; wartime and peacetime. top (a) General. The basic considerations relating to service connection are stated in §3.303. The criteria in this section apply only to disabilities which may have resulted from service in a period of war or service rendered on or after January 1, 1947. (Presumption of soundness. The veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. (1) History of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. Determinations should not be based on medical judgment alone as distinguished from accepted medical principles, or on history alone without regard to clinical factors pertinent to the basic character, origin and development of such injury or disease. They should be based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof. (2) History conforming to accepted medical principles should be given due consideration, in conjunction with basic clinical data, and be accorded probative value consistent with accepted medical and evidentiary principles in relation to value consistent with accepted medical evidence relating to incurrence, symptoms and course of the injury or disease, including official and other records made prior to, during or subsequent to service, together with all other lay and medical evidence concerning the inception, development and manifestations of the particular condition will be taken into full account. § 3.306 Aggravation of preservice disability. top (a) General. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. (Authority: 38 U.S.C. 1153) (B) Wartime service; peacetime service after December 31, 1946. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. (1) The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. (2) Due regard will be given the places, types, and circumstances of service and particular consideration will be accorded combat duty and other hardships of service. The development of symptomatic manifestations of a preexisting disease or injury during or proximately following action with the enemy or following a status as a prisoner of war will establish aggravation of a disability.

Hopefully your SOC will say you have been granted service connection! Then, if they don't go back to 1978 -- Hit them for an earlier effective date: 3.156 New and material evidence. top (a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. (Authority: 38 U.S.C. 501, 5103A(f), 5108) (B) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(B)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. (Authority: 38 U.S.C. 501) © Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph © of this section are met; (ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim. (2) Paragraph ©(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. (3) An award made based all or in part on the records identified by paragraph ©(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. (4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim. Free - Pretty smart, but not quite wise!

Diagnostic Criteria for BP - by the way - they just started using that term in the 80's. Diagnostic criteria for DSM-IV 301.83: Borderline Personality Disorder A pervasive pattern of instability of interpersonal relationships, self-image, and affects, and marked impulsivity beginning by early adulthood and present in a variety of contexts, as indicated by five (or more) of the following: (1) frantic efforts to avoid real or imagined abandonment. (2) a pattern of unstable and intense interpersonal relationships characterized by alternating between extremes of idealization and devaluation. (3) identity disturbance: markedly and persistently unstable self-image or sense of self. (4) impulsivity in at least two areas that are potentially self-damaging (e.g., spending, sex, Substance Abuse, reckless driving, binge eating). (5) recurrent suicidal behavior, gestures, or threats, or self-mutilating behavior. (6) affective instability due to a marked reactivity of mood (e.g., intense episodic dysphoria, irritability, or anxiety usually lasting a few hours and only rarely more than a few days). (7) chronic feelings of emptiness. (8) inappropriate, intense anger or difficulty controlling anger (e.g., frequent displays of temper, constant anger, recurrent physical fights). (9) transient, stress-related paranoid ideation or severe dissociative symptoms.

Yes. And this might actually stand in your favor. Because it they now actually do consider all the evidence and grant the claim -- then you should have a strong case for an earlier effective date -back to 1978 because the initial decision was made on an incomplete record. The fact that they didn't consider all of your SMRS as they didn't have them) would be the strength of the case --- they an't blow those off like they can private records --and they have basically ADMITTED that they did NOT have all your SMR's. I think ALL claims after your initial claim are considered "re-opened" claims by the VA --even for a new condition. As they keep switching up the terms and language - you might want to see if you can avoid falling down the rabbit hole by just broadening it out. 1. I HAVE a psychiatric disorder --no matter which diagnosis you put on it --that is currently disabling (and they have already said that it is 100% on the pension they "awarded" you that you are not eligible for. 2. Whatever that psychiatric disorder is FIRST appeared while I was in the service. (No matter WHAT you call it -- it FIRST appeared in the service) 3. Therefore WHATEVER the doctors decide to call it --it is service connected - as it either BEGAN in SERVICE or was AGGRAVATED by my service. (it would be nice if you could add -- so STOP screwing around and calling it this, that and the other -and just admit that WHATEVER you want to call it - I HAVE it - and the evidence shows it STARTED in the service). P.S. I wouldn't add that unless I reworded it nicer. But yeah...they can spin your claim around for YEARS just changing what they call what you have - instead of noticing that whatever they call it - There it is in the SMR's plain as day causing you psychological problems. Free

Josephine, I am not sure how much help I can be as this is as confusing as heck to me also..but I can tell you the things that stood out to me in reading your post. 1. I am not sure why they are switching the terms around. It could be that aquired psychiatric disorder would include ANY and ALL psychiatric disorders that may have been aquired. Chronic anxiety and depression would be ONE TYPE of an aquired psychiatric disorder. So it would not be something different -- as much as the depression and anxiety would be limiting the field of what type of aquired psychiatric disorder you have. So it could be that they are saying: 1. We looked at aquired psychiatric disorders you may have 2. We decided the aquired psychiatric disorder you have is anxiety / depression 3. We decided that this did not begin in the service. It is really odd that they have a C&P that says you have anxiety - and that it more likely than not began in the service -- yet they sent it for a second opinion to someone who never saw you. If your treating physician has never diagnosed you with a pesonality disorder - I would question the validity of such a diagnosis from someone who has never seen you or treated you. Personality disorders are not that easy to diagnose. It seems that the Board psychiatrists are saying that - Yes, you do have anxiety - but that is didn't begin in the service -- and that your PRIMARY symptoms are from the personality disorder. So that is something that you will want to watch - because even if you DO get the SC for anxiety --they can come back and rate it at a small percentage --and make you 10% SC -- and say that the majority of your symptoms are actualy not service connected. So you will probably have to address the Personality Disorder as much as you address the anxiety. Depending on what you want to do - two directions to go are: 1. Fight the fact that you were given a diagnosis of personality disorder by a reviewer - though your treating physician never diagnosed you with one. or 2. If you choose to, or are forced to, accept the diagnosis of personality disorder -- which is NOT considered an AQUIRED disorder - then promote the in-service aggravation to the hilt. You are supposed to be presumed sound when you enter the service. They are supposed to have to actually PROVE that your personality disorder pre-existed the service. (And it would be hard for them to say that your persoanlity disorder came AFTER the service because of the in-service documentation of emotional immaturity, instability, etc. Also - you might want to read up on the Presumption of Aggravation - which would afford you the right that it would be PRESUMED that the in-service events AGGAVATED your so called pre-existing personality disorder unless the VA can PROVE that your personality disorder was aggravated by other facotrs - or only worsened in the service due to natural progression of the disease that would have occured anyway. The burden of proof for both presumption of soundness and presumption of aggravation is higher than "more likely than not" and is up to the VA to Prove. (Sorry - I don't have time to look up all the laws on it right now -- so you might want to check them out to make sure I am right on this...) So I don't think the VA can get away with just saying it that your problem is not anxiety - it is a personality disorder -- without acknowledging the first symptoms seemed to appear in service - and that the occurances in service aggravated it. So if they want to keep pushing the personality disorder issue -- it might actually be easier to turn that around into a favorable decision than it will be to fight it. But for the VA to merely say that a personality disorder is causing most of your symptoms - without addressing the presumption of aggravation -- when you SMRs clearly indicate that you had symptoms in service --is something to appeal. Also _ I remember you posting a while back about lies in one of your reports --where they were saying you had thrown things, etc.. Where did they get that info? One thing you have to be careful of is the rights that are NOT afforded to people diagnosed with psychiatric disorders. Sometimes their psychiatrist will not even share the diagnosis with them -- to "protect" them from being upset. Also - you are not always given ALL your psych records -- or even informed that you aren't given them -- because they might "upset" you --and worsen your condition. And I even remember reading that the VA can actually give people claiming psych disabilities EDITED SOC's that don't SHOW all the information --Once again, in the name of protecting the claimant from receving information that might "upset" them. So people claiming psych disorders are at a real disadvantage. They can drive you crazy by not being straight with you while pretending to protect you from your own disorder. Also - their acknowlegement that some of the service records submitted by you were new and material should help an argument for an earlier effective date. Because they made the initial decision without a complete record. Some of the SMRs were missing. Much luck, Free

Josephine, I am not sure how much help I can be as this is as confusing as heck to me also..but I can tell you the things that stood out to me in reading your post. 1. I am not sure why they are switching the terms around. It could be that aquired psychiatric disorder would include ANY and ALL psychiatric disorders that may have been aquired. Chronic anxiety and depression would be ONE TYPE of an aquired psychiatric disorder. So it would not be something different -- as much as the depression and anxiety would be limiting the field of what type of aquired psychiatric disorder you have. So it could be that they are saying: 1. We looked at aquired psychiatric disorders you may have 2. We decided the aquired psychiatric disorder you have is anxiety / depression 3. We decided that this did not begin in the service. It is really odd that they have a C&P that says you have anxiety - and that it more likely than not began in the service -- yet they sent it for a second opinion to someone who never saw you. If your treating physician has never diagnosed you with a pesonality disorder - I would question the validity of such a diagnosis from someone who has never seen you or treated you. Personality disorders are not that easy to diagnose. It seems that the Board psychiatrists are saying that - Yes, you do have anxiety - but that is didn't begin in the service -- and that your PRIMARY symptoms are from the personality disorder. So that is something that you will want to watch - because even if you DO get the SC for anxiety --they can come back and rate it at a small percentage --and make you 10% SC -- and say that the majority of your symptoms are actualy not service connected. So you will probably have to address the Personality Disorder as much as you address the anxiety. Depending on what you want to do - two directions to go are: 1. Fight the fact that you were given a diagnosis of personality disorder by a reviewer - though your treating physician never diagnosed you with one. or 2. If you choose to, or are forced to, accept the diagnosis of personality disorder -- which is NOT considered an AQUIRED disorder - then promote the in-service aggravation to the hilt. You are supposed to be presumed sound when you enter the service. They are supposed to have to actually PROVE that your personality disorder pre-existed the service. (And it would be hard for them to say that your persoanlity disorder came AFTER the service because of the in-service documentation of emotional immaturity, instability, etc. Also - you might want to read up on the Presumption of Aggravation - which would afford you the right that it would be PRESUMED that the in-service events AGGAVATED your so called pre-existing personality disorder unless the VA can PROVE that your personality disorder was aggravated by other facotrs - or only worsened in the service due to natural progression of the disease that would have occured anyway. The burden of proof for both presumption of soundness and presumption of aggravation is higher than "more likely than not" and is up to the VA to Prove. (Sorry - I don't have time to look up all the laws on it right now -- so you might want to check them out to make sure I am right on this...) So I don't think the VA can get away with just saying it that your problem is not anxiety - it is a personality disorder -- without acknowledging the first symptoms seemed to appear in service - and that the occurances in service aggravated it. So if they want to keep pushing the personality disorder issue -- it might actually be easier to turn that around into a favorable decision than it will be to fight it. But for the VA to merely say that a personality disorder is causing most of your symptoms - without addressing the presumption of aggravation -- when you SMRs clearly indicate that you had symptoms in service --is something to appeal. Also _ I remember you posting a while back about lies in one of your reports --where they were saying you had thrown things, etc.. Where did they get that info? One thing you have to be careful of is the rights that are NOT afforded to people diagnosed with psychiatric disorders. Sometimes their psychiatrist will not even share the diagnosis with them -- to "protect" them from being upset. Also - you are not always given ALL your psych records -- or even informed that you aren't given them -- because they might "upset" you --and worsen your condition. And I even remember reading that the VA can actually give people claiming psych disabilities EDITED SOC's that don't SHOW all the information --Once again, in the name of protecting the claimant from receving information that might "upset" them. So people claiming psych disorders are at a real disadvantage. They can drive you crazy by not being straight with you while pretending to protect you from your own disorder. Also - their acknowlegement that some of the service records submitted by you were new and material should help an argument for an earlier effective date. Because they made the initial decision without a complete record. Some of the SMRs were missing. Much luck, Free

John, Here is a link to the law regarding student loan discharges: http://a257.g.akamaitech.net/7/257/2422/04...4cfr682.402.pdf Free

Thanks Vike! You were very helpful! Free

Yep. And by the time the vet has been allowed to get a lawyer -- it is late in the game - and the lawyer has to try to work with the mess that could have been avoided had he been involved earlier. You should have done this - you shouldn't have done that..etc. It is kind of like if you were having a trial -- and THEY had lawyers the whole time - but YOU are only allowed to have a lawyer the LAST DAY of the trial. The lawyer gets to make a last ditch effort to try to save you from all the legal ploys that have ALREADY occured. I know they say they are afraid that involving lawyers will backlog the system. But Social Security uses lawyers without the horrid backlogs that the VA has. Initially, the system probably will be backlogged - because lawyers will have so much to file. However, in time - maybe the VA will start getting it right the first time. Unfortunately, those vets currently pursuing claims will have to pay the price (timewise) for hopefully straightening out the process. But then again, they are already waiting for years anyway. Free

I see where the veteran is allowed to get one copy of their C-file. If you get a copy - and then new evidence is submitted - can you also request copis of the updated info? Free

Who knows if they ever granted the benefits. It would be nice if you could cross reference the cases - or see what happened AFTER the remand. I guess they had to go back and rate how disabled they thought she was at different points. One of my husband's claims was simple. He asked for his free one time dental treatment a vet is entitled to upon discharge (if they haven't already gotten it in certain number of days before discharge). It is supposed to be noted right on their discharge papers whether they got it or not. He filed at retirement. He was denied compensation for dental. The BVA remanded because he was only asking for TREATMENT. The RO sent him to a dentist...and denied compensation again. He told them he only wanted TREATMENT. THe BVA remanded again -- as they thought the record indicated he MIGHT be entitled to compensation. The RO denied him compensation again. He stopped sending letters telling them he just wanted TREATMENT.. as no one was reading them for the past five years. The BVA finally upheld the denial of compensation. No one ever decided whether he did or did not get TREATMENT. (though I guess that was decided by default) So what a wonder that there is a backlog. A veteran retires and asks for his ONE TIME dental treatment he is CLEARLY entitled to -- and they bounce it around in the system for years -- and don't bother to ever decide if he can get what he asked for. That should have taken about 10 minutes. Look at the record. Did he get his dental treatment 90 days before discharge? No. Then he is entitled to one time treatment of his dental conditions. Free

You sure do apologize a lot. I have never been bothered by any of your posts. I guess one thing that was taking me so long working on my husband's claim was trying to back into it from the end of the process. Looking to see where certain actions will take you down the road. Especially in how we handled the closing (if it was closed) of his claim. Because it is not quite the nonadversarial system they promote is as. But yet the vets do what they do to the best of their ability in the "nonadvesarial" portion -- and then when it gets to the Courts -- it is -- Well you didn't do this and you didn't do that -- and So and so vs. such and such says that you should have blah blah blah... By the time the vet gets to hire an attorney -- sometimes many mistakes have already been made. Well - actually the vet can hire an attorney - as long as they will work for $10. Free

This is where I get all messed up - where one thing cancels out the other. But it seemed like this one was more of a CUE because they made the decision on an incomplete record - and the missing records were SMRs. I guess one of the best ways to find the most current thinking is to look at very recent BVA and Court cases and seeing what they are quoting. It seems like they have their favorites... and just keep quoting the same ones over and over again. I was reading that case -- where they were pretty much afraid that if they let duty to assist be a CUE - that people could some back at any time with anything. But that is not allowing valid claims (such as yours) in order to try to deter frivolous claims. But I think there will be valid claims and frivolous claims anyway -- and they still have to hear them both. When it is fatal to your case -and the results would have been different- it should be a CUE (though I know it is not) Free

I have a copy of the discharge notice my husband got from FSA - Federal Student Aid. THe toll-free number is 1-888-636-6401 email disability_discharge@acs-inc.com Address Us Department of Education Total and Permanent Disability Assignments PO Box 7200 Utica, NY 13404 According to their regs - once they notify you that you have a conditional discharge - you don't have to make any more payments. But after you have been disabled throughout the conditional discharge period -and they actually discharge your loan -- you will be reimbursed for any payments made AFTER the time you became totally disabled. It doesn't say after you FILED -- it sayd after you became disabled -- I will let you know how this works. My husbnad FILED last May -- I think he was notified in July that he didn't have to make payments. But the doctor had signed that he was unable to work since December 2005. The letter I got this month telling me his loan has been discharged states he will get reimbursed for any payment he made after he became disabled. So I will let you know whether they refund back to Dec. 2005 - or just to the date he filed. Another note - is it states that they report the discharge to the credit bureaus. I have no idea what effect this can have on a person't credit -- because it is discharged because of disability - not because of non-payment. But that is something you might want to check out. Free

http://www.va.gov/vetapp01/files01/0104797.txt Citation Nr: 0104797 Decision Date: 02/15/01 Archive Date: 02/20/01 DOCKET NO. 94-26 808 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an effective date earlier than August 24, 1992, for service connection for systemic lupus erythematosus (SLE). REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Mark J. Swiatek, Counsel INTRODUCTION The veteran had active service from February 1974 to November 1974 and from December 1977 to December 1979. This matter is before the Board of Veterans' Appeals (the Board) on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Board in March 1997 remanded the case to the RO for further development. The RO recently returned the case to the Board for appellate consideration. The veteran's representative in November 2000 included comments on questions not before the Board. One matter commented on was the RO's reduction, effective in August 1999, of the veteran's 100 percent rating for Hodgkin's disease and in the rate of special monthly compensation she receives. The representative also commented on correspondence from the RO late in 1999 and the local representative's written response regarding a claim of secondary service connection for depression for which there is no rating decision on file. Another matter mentioned is a RO denial late in 1999 of entitlement to additional special monthly compensation based on the need for regular aid and attendance or being housebound. These issues are being referred to the RO for clarification initially and then any further action warranted with respect to any of these issues, as there is no document on file that could be interpreted as a valid notice of disagreement regarding any of these issues. Therefore, in the Board's opinion, referral of these matters rather than remand is the appropriate course of action at this time. The Board remand asked the RO to provide the veteran with information to allow her to bring an appeal from an April 1994 rating decision regarding clear and unmistakable error in an October 1988 rating determination. The RO furnished the information to the veteran in an April 1997 letter. The remand instructed the RO to develop the issue for appeal if the appellant filed a notice of disagreement. The record shows that a notice of disagreement was not filed and there was no response to the April 1997 letter. As a result, the matter is not properly before the Board at this time and will be addressed no further. FINDINGS OF FACT 1. The veteran did not appeal the June 1984 RO rating decision that denied service connection for SLE but the notice she received was materially deficient and constituted grave procedural error. 2. There was service medical record evidence and VA medical evidence, which the veteran had referred to in connection with her initial VA benefit application for SLE in 1984 and in subsequent application in 1988 that was not of record but which the RO was obligated to obtain in development of the claim. 3. The RO's failure to request pertinent specified VA medical evidence and service medical records also constituted grave procedural error that renders the June 1984 rating decision and subsequent 1988 decision nonfinal. CONCLUSIONS OF LAW 1. The June 1984 and October 1988 rating decisions wherein the RO denied service connection for SLE contained grave procedural error and are nonfinal. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104, 3.105(a), 20.1103 (2000). 2. The criteria for an effective date of May 15, 1984 for service connection for SLE have been met. 38 U.S.C.A. § 5110 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.155, 3.157, 3.160, 3.400 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual background The record shows that the RO received the veteran's claim to establish service connection for SLE on May 15, 1984. The statement in support of the claim filed by her representative referred to a VA diagnosis of SLE in 1982 and claimed that her service medical records supported that she had many of the symptoms. She had previously filed VA benefit claims for other disorders, initially early in 1980, and the RO had received service medical records and VA medical records that included several examination reports. None of the VA records on file mentioned SLE and the service medical records on file contained no reference to SLE. The claims file included several VA requests for information dated from 1981 to 1983, apparently connected with contemporaneous VA medical treatment that did not refer to SLE. The RO in June 1984 issued a rating decision that denied service connection for SLE. The rating decision narrative stated that a complete review of the veteran's service medical records was negative for findings, symptoms or diagnosis of SLE, and that the remainder of the medical evidence of record was also found to be negative for any indication of SLE. The VA notice letter in June 1984 did not mention SLE, but informed her that no change was warranted since the previous determination regarding her spinal disc condition and ear infection. On a VA examination late in 1984 to evaluate a service- connected spine disability, the examiner reported that the veteran had been diagnosed with SLE and that she was being treated for it. VA medical records obtained late in 1986 when she filed a claim for increase for a back disability included references to SLE in 1985 and 1986 and on one occasion reported the diagnosis had been made in 1981. The RO in June 1987 received a copy of the veteran's correspondence to a Member of Congress wherein she stated that VA doctors had found lupus and that the disorder was not properly diagnosed during her military service. VA's letter of June 1987 responding to the congressional interest mentioned that the claim to service connect SLE had been denied after review of all of her service medical records failed to show no findings, symptoms or diagnosis of the disorder. The RO sent a copy of the letter to the veteran's representative. The veteran sought to reopen her SLE claim in October 1988 with a September 1988 letter from a VA physician. The physician wrote that she had been cared for during the past seven or eight years after first being seen for a face and forearm rash that led to a dermatology evaluation that found SLE. It was reported that her history recalled the rash in service as well as joint pain and swelling and poor circulation. The examiner said there was a strong possibility that she exhibited SLE symptoms at that time and that perhaps the symptoms were not correlated with the disease because of the complicated nature of detection and diagnosis. The examiner also stated that her arthritis was a symptom of lupus. The record shows that the veteran disagreed with the RO determination in October 1988 to deny service connection for SLE. However, she did not file an appeal after the RO issued her a statement of the case in December 1988 at the mailing address she had provided in her notice of disagreement. The VA early in 1990 received a copy of her 1990 request for assistance to the same Member of Congress that included a duplicate of the VA physician's statement in 1988. VA's letter responding to the congressional interest discussed the recent adjudication history of the claim and the need for new and material evidence. The RO sent a copy of the letter to the veteran's representative. She submitted another copy of the 1988 letter later in 1990 with an application for individual unemployability benefits due to service-connected disability (TDIU). Contemporaneous VA records reported the veteran's hospitalization for translupus myelitis. The hospital records referred to SLE in 1981. The RO in July 1990 adjudicated the claim as one for increase, a temporary total hospitalization rating and TDIU. VA medical records dated later in 1990, which the RO reviewed in adjudicating a claim for pension benefits, show her admission to a nursing home unit for complications of SLE. The pension claim was granted in December 1990 and nonservice-connected SLE was rated 100 percent disabling from April 6, 1990, which coincided with the date of the veteran's admission to a VA hospital. The record shows that the veteran in 1991 actively prosecuted claims for restoration of aid and attendance benefits, waiver of overpayment and election of benefits. On August 24, 1992, the RO received a letter from the veteran's representative and her application for TDIU. The representative's letter of August 31, 1992, asserted the RO in October 1988 committed clear and unmistakable error (CUE) when it denied service connection for SLE on an incomplete record. The representative asked the RO to obtain her Army and Air Force service medical records and records from the Jefferson Barracks VA medical facility that a VA physician had referred to in a 1988 letter. Late in 1992, VA records sought were received that included a 1990 reference to SLE since 1981. Other VA records received from 1975 and 1979 through 1981 did not mention SLE. Service medical records received from the service department in April 1993 consisted of a 1973 physical examination and dental records from 1974. Service medical records received in June and July 1993 consisted of duplicate records from the 1979 medical board evaluation and a 1981 military examination that did not mention SLE. The representative on June 24, 1993, submitted service medical records from 1979 that were laboratory analysis reports and a transfer summary dated in February 1979 that reported laboratory data including "VDRL was 3+..." (highlighted) The representative in July 1993 submitted a June 1993 medical statement that indicated a review of records the veteran had submitted showed features in retrospect that were very consistent with SLE. The physician stated the specific features and laboratories from the available notes and laboratory data had been highlighted. The representative said in the July 1993 transmittal letter that the records the physician referred to had been submitted on June 24. The representative in August 1993 submitted duplicate service medical records variously dated in 1974. In addition, the representative asked that the RO obtain specified VA medical records. The representative submitted this request again the following month. The record shows that in September 1993 the RO received VA medical records from 1982 that showed the veteran was evaluated early in 1982 for gland swelling in the neck and under the left arm and that biopsy findings of the axillary lymph nodes were interpreted as consistent with reactive hyperplasia. In June 1982 she was evaluated for a dermatologic problem of the arms. Material from punch biopsies of the left arm was interpreted by one clinician as suggestive of SLE. Another pathology report found the changes were consistent with collagen vascular disorders rather than SLE. The corresponding clinical reports refer to a history of a developing lower arm rash in 1981 that was aggravated by sunlight and healed in the winter months with SLE to be ruled out. The records showed various clinical entries were highlighted. The RO in November 1993 asked for a VA medical opinion as to whether the veteran manifested SLE in military service as medical reviewers in 1988 and 1993 had opined. In November 1993 a VA specialist agreed with the previously referenced medical opinions regarding onset in service and pointed out the significance of the 3+ serology the veteran had in 1979 (false-positive test for syphilis commonly seen in SLE patients). A RO rating decision in November 1993 granted service connection for SLE with loss of use of the upper extremities and a 100 percent rating from August 24, 1992. The RO in December 1993 notified the veteran of the effective date of increase as a result of service connection for SLE. The representative in January 1994 argued for an unspecified earlier effective date based on the previously submitted CUE claim. The RO in April 1994 adjudicated the CUE claim in denying an earlier effective date, although the rating board acknowledged a question of adequacy of notice after the 1984 rating decision that initially considered and denied service connection for SLE. Pursuant to the Board remand, the RO was asked to consider whether consider whether the provisions of 38 C.F.R. § 3.156© were applicable in the determination of an earlier effective date. Specifically, the Board asked the RO to clarify which of the service medical records the various examiners had relied on had been contained in supplemental reports from the service department. The RO in February 1999 concluded that none of the records were on file at the time of the 1984 or 1988 rating decisions that denied service connection for SLE. The RO further found that none of the records alone constituted new and material evidence and that this evidence reviewed by an examiner with other evidence not on file at the time of either prior decision established entitlement to service connection. The RO did not adjust the effective date since it found the medical review was completed in connection with claim filed in 1992. Criteria A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected as prescribed in Rule 302 (§ 20.302 of this part). 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108. A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C.A. § 5104 (West 1991). A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in § 3.105 of this part. 38 C.F.R. § 3.104(a). "Notice" means written notice sent to a claimant or payee at his latest address of record. 38 C.F.R. § 3.1(q) (1984). The claimant will be notified of any decision affecting the payment of benefits or granting relief. Notice will include the reason for the decision and the date it will be effectuated as well as the right to a hearing...The notification will also advise the claimant of his right to initiate an appeal by filing a Notice of Disagreement...the notice will advise him of the periods in which an appeal must be initiated and perfected. 38 C.F.R. § 3.103 (1984). A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified shall become final if an appeal is not perfected as prescribed in Rule 29 (§ 19.129). 38 C.F.R. § 19.192 (1984). The regulations define new and material evidence as follows: New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (2000). Where the new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction. This comprehends official service department records which presumably have been misplaced and have now been located and forwarded to the Department of Veterans Affairs. Also included are corrections by the service department of former errors of commission or omission in the preparation of the prior report or reports and identified as such. The retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly except as it may be affected by the filing date of the original claim. 38 C.F.R. § 3.156©. The Board notes that the United States Court of Appeals for the Federal Circuit (hereinafter, Circuit Court) recently ruled that the United States Court of Appeals for Veterans Claims (VA Claims Court) erred in adopting the test articulated in Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In Colvin, the Court adopted the following rule with respect to the evidence that would justify reopening a claim on the basis of new and material evidence, "there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." Colvin, 1 Vet. App. at 174. In light of the holding in Hodge, the Board will analyze the evidence submitted in the case at hand according to the standard articulated in 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board does not have jurisdiction to consider a previously adjudicated claim unless new and material evidence is presented. Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). When new and material evidence has not been submitted in a previously denied claim "[f]urther analysis...is neither required, nor permitted." Butler v. Brown, 9 Vet. App. 167, 171 (1996) (finding in a case of where new and material evidence had not been submitted that the Board's analysis of whether the claims were well grounded constituted a legal nullity). Thus, the well groundedness requirement did not apply with respect to reopening disallowed claims and revising prior final determinations. Jones v. Brown, 7 Vet. App. 134 (1994). The Board notes that under 38 C.F.R. §§ 3.104(a) and 3.105(a) (2000), taken together, a rating action is final and binding in the absence of clear and unmistakable error. A decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a). VA regulations provide that "previous determinations which are final and binding...will be accepted as correct in the absence of clear and unmistakable error." 38 C.F.R. § 3.105(a). Where evidence establishes such error, the prior decision will be reversed or amended. Id. "Clear and unmistakable error" requires more than a disagreement on how the facts are weighed or evaluated; the appellant must show that the correct facts, as they were known at the time, were not before the adjudicator or that pertinent regulatory or statutory provisions were incorrectly applied. Russell v. Principi, 3 Vet. App. 310, 313 (1992). In addition, "It is the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). A claim that the evidence was not properly weighed or evaluated cannot constitute clear and unmistakable error, and the allegation of clear and unmistakable error must specifically state what error and how the outcome would have been manifestly different. Id. at 44. The determination regarding clear and unmistakable error must be made based on the record and the law that existed at the time the decision was made. Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell, 3 Vet. App. at 314. Evidence that was not of record at the time of the decision cannot be used to determine if clear and unmistakable error occurred. Porter v. Brown, 5 Vet. App. 233 (1993). Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). For purposes of determining whether clear and unmistakable error 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 clear and unmistakable error 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 (1994). Service connection may be granted for a disease or injury incurred in or aggravated by active service in the line of duty. 38 U.S.C.A. § 1110 (West 1991). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran's service records, or for which he seeks a service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a). 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 clear-cut 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. 38 C.F.R. § 3.303(:(. Service connection may be granted for lupus erythematosus, systemic although not otherwise established as incurred in service if manifested to a compensable degree within one year from the date of separation from service provided the rebuttable presumption provisions of § 3.307 are also satisfied. 38 C.F.R. § 3.309, as amended at 54 Fed. Reg. 26029, June 21, 1989. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107( (West 1991); 38 C.F.R. §§ 3.102, 4.3. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. Veterans Claims Assistance Act of 2000 (hereafter VCAA), Pub. L. No. 106-475, § 4, 114 Stat. 2096, 2098-99 (2000) (to be codified as amended at 38 U.S.C. § 5107). Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A § 5110; 38 C.F.R. § 3.400(:o(2)(i). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. (:( A communication received from a service organization, an attorney, or agent may not be accepted as an informal claim if a power of attorney was not executed at the time the communication was written. © When a claim has been filed which meets the requirements of § 3.151 or § 3.152, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155. Effective date of pension or compensation benefits, if otherwise in order, will be the date of receipt of a claim or the date when entitlement arose, whichever is the later. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or Department of Veterans Affairs issue, if the report relates to a disability which may establish entitlement. Acceptance of a report of examination or treatment as a claim for increase or to reopen is subject to the requirements of Sec. 3.114 with respect to action on Department of Veterans Affairs initiative or at the request of the claimant and the payment of retroactive benefits from the date of the report or for a period of 1 year prior to the date of receipt of the report. 38 C.F.R. § 3.157. A pending claim is an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160. Analysis There are currently two statutorily authorized means to obtain reevaluation of a final VA benefit decision. A final decision disallowing a claim may be revised based upon a showing of CUE in a prior decision by the Secretary or the Board pursuant to 38 U.S.C.A. §§ 5109A and 7111, or reopened based upon submission of new and material evidence pursuant to 38 U.S.C.A. § 5108. The veteran does argue that the RO committed CUE in 1988 so that means of obtaining reevaluation is brought to the Board. The Board notes the argument is that the RO in 1988 committed CUE when it denied the claim on an incomplete record. The Board will not provide a comprehensive discussion of CUE in such instances in view of the decision to find the 1984 claim remained, in essence, a pending claim that was not affected by the 1988 rating decision. It is sufficient to point out that the constructive receipt rule established in Bell v. Derwinski, 2 Vet. App. 611 (1992) would have no application to this case since the rating decision at issue was prior to the date the Bell decision was issued, July 21, 1992. See, for example, Damrel, 6 Vet. App. at 246; Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). Further, any failing to develop for VA evidence would have been a breech of the duty to assist, and as such it cannot be a basis for a CUE claim, although the record may have been incomplete. Caffrey v. Brown, 6 Vet. App. 377 (1994). The Board also concludes that in view of grave procedural error new and material evidence was not required to obtain a reevaluation or review of the claim denied initially in 1984. Thus the Board is not limited by the effective date rules that apply in such circumstances. Further, as the additional service medical records alone apparently did not alone establish SLE in service the provisions of 38 C.F.R. § 3.156© do not require review of the 1984 decision. Nor does the Board need to discuss another potential means of obtaining review discussed in Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998), as the facts do not warrant its application. The Board observes that in Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999) the Circuit Court created a nonstatutory means to obtain review of a previously denied claim, holding that while a breach of the duty to assist is not the type of error that can provide the basis for a CUE claim in accordance with this Court's case law, in cases of grave procedural error RO or Board decisions are not final for purposes of direct appeal. Id. at 1333. In Hayre the Circuit Court held that a breach of the duty to assist in which the VA failed to obtain pertinent SMRs specifically requested by the claimant and failed to provide the claimant with notice explaining the deficiency is a procedural error of, at least, comparable gravity that vitiates the finality of an RO decision for purposes of direct appeal. The VA Claims Court, interpreting the reach of Hayre in Simmons v. West, 14 Vet. App. 84, 91 (2000), noted that: Not only do we believe that Hayre does not require that a "garden variety" breach of VA's duty to assist, in the development of a claim that is well grounded, be construed as tolling the finality of an underlying RO decision, but we also believe that it would be unwise for this Court to extend Hayre to encompass such a duty- to-assist violation. At some point, there is a need for finality within the VA claims adjudication process; thus, the tolling of finality should be reserved for instances of "grave procedural error"--error that may deprive a claimant of a fair opportunity to obtain entitlements provided for by law and regulation. The holding in Hayre as explained in Tetro v. Gober, 14 Vet. App. 100 (2000) provided for review of unappealed decisions where grave procedural error had occurred so as to render the decision nonfinal. In Hayre the vitiating error was failure to assist in obtaining specifically requested service medical records and failure to provide the claimant with notice explaining the deficiency. Other examples of grave procedural error referred to in Tetro were Tablazon v. Brown, 8 Vet. App. 359, 361 (1995) (failure to provide a statement of the case after receiving a notice of disagreement); Hauck v. Brown, 6 Vet. App. 518, 519 (1994) (failure to provide notification of denial tolls period to file a notice of disagreement); Kuo v. Derwinski, 2 Vet. App. 662, 666 (1992) (failure to send statement of the case to accredited representative tolled 60 day period to respond) and Ashley v. Derwinski, 2 Vet. App. 307, 311 (1992) (evidence sufficient to rebut presumption of administrative regularity for mailing of appeal notice). The Board observes that at the time of the 1984 decision, the scope of the Secretary's duty to assist concerning the procurement of VA records and service medical records was clearly defined. There were specific VA Adjudication Procedure Manual M21-1 provisions paras 5.01 et seq., 22.01 et seq. and 25.01 et seq. prescribing the steps to be taken to obtain such records. These provisions were clear authority to guide the RO in 1984 concerning the procurement of VA and service medical records that were specifically mentioned. Therefore, the failure to obtain such records would give rise to a grave procedural error comparable to that in Hayre. The Board believes the holding here accords due consideration to the VA Claims Court's explanation in Simmons of the relevant factors relied on by the Circuit Court in Hayre. First, the VA assistance sought was "specifically requested" regarding service medical records and VA treatment that was directly referenced. The initial request to the service department that produced service medical records apparently did not include those later relied on to find SLE likely was incurred in service. There does not appear to have been a supplemental request prior to the mid 1990's even though the veteran mentioned the likely existence of such treatment records. Further, the VA records from the early 1980's were apparently not requested until the early 1990's although there had been earlier references to pertinent medical treatment at the time of the 1984 claim and later in 1988. VA adjudication procedures required the RO to obtain the VA reports since, under the circumstances, the veteran was not required to make a specific request. Second, the lack-of- notice element present here is such that it may undermine the operation of the veterans' benefits system by altering its manifestly pro-claimant character and jeopardizing the veteran's ability to appeal in what may appear to be a fundamentally unfair manner. The RO did not follow up regarding VA records or service medical records in 1984 or 1988, although it seemed obvious in view of the medical references that more records than reflected in the claims file were compiled. There was clearly notice of VA records from the early 1980's relevant to the SLE claim that were not requested until years after the 1984 claim. There is recognition of the particularly vital role that service medical records and VA records can play in determining the question of in-service incurrence of a disability. It does not appear there was notice to the veteran explaining the failure to obtain pertinent and specifically requested service medical records and specified VA records. These were essential to insuring that the RO would adequately develop a veteran's claim before deciding it on the merits. The opinion in Simmons noted that VA has substantively defined its obligation to obtain such records in its Manual M21-1 and recently recognized the special role of such records and VA's access to them by referring to VA Veterans Benefits Administration Letter 20-99-60 at 1 (Aug. 30, 1999) (directing all ROs that service medical records and VA medical center records are to be requested in all cases and considered to be records in VA custody. This policy, in view of the Manual M21-1 provisions previously mentioned, was substantially in effect in 1984 and is authority for the RO's duty to assist. It was a situation where VA was in control of evidence necessary to prove her claim. The VA Claims Court pointed out that where documents containing certain information are under VA control (real or constructive), failure to produce them is likely to frustrate an award of benefits. Simmons, 14 Vet. App. at 89-90. As noted previously another basis to find grave procedural error is the failure to provide notification of denial in 1984, which in turn tolls the period to file a notice of disagreement. Hauck, 6 Vet. App. at 519. The notice in 1984 was clearly deficient in not advising the veteran that her claim for service connection of SLE had been denied. In addition, the 1988 decision was nonfinal since the essential records, which had been mentioned, were not developed for by the RO. In essence, the 1984 claim remained a pending claim. In summary, the Board holds that Hayre as explained in Tetro v. Gober, 14 Vet. App. 100 (2000) and Simmons should apply in this case given its facts so as to render nonfinal the June 1984 RO decision. Further, there is no applicability of a CUE claim in this case and the nonfinality of the 1984 decision renders the 1988 decision a nullity. The Board has not overlooked the potential application of the recently enacted Veterans Claims Assistance Act of 2000 [Pub. L. No. 106-475, 114 Stat. 2096 (2000)], but finds the record is adequate for a determination of the proper effective date. Since the claim to establish service connection for SLE was a pending claim from May 1984 in view of the grave procedural errors then, and which rendered the 1988 RO decision a nullity, the effective date for service connection should coincide with the May 15, 1984 date of claim. 38 C.F.R. § 3.400. The Board is not inclined to decide what rating is warranted for the period prior to August 1992 since that determination has not been addressed by the RO in the first instance. Nor does the Board infer or suggest that any particular rating is warranted for the entire period. The Board, however, directs the attention of the appellant and the RO to the guidance recently provided in Meeks v. West, 216 F.3d 1363, 1367 (Fed. Cir. 2000) regarding the retroactive rating in claims such as the appellant's. See also Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER Entitlement to an effective date of May 15, 1984, for service connection for SLE is granted. Heather J. Harter Acting Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE)

Oh - now I see - you edited the post. When I was responding to the posts before - I was sure I had read a post by you talking about how the letters were confusing to you too - and how you had appealed one condition (anxiey or depression) and they were going with the "aquired mental disorder" -- so you really have trouble figuring out where exactly you stand on what. (or at least that was my take on what you said.) Then I came back in to read it better - and respond -and couldn't find the dang thing... I was thinking I had gone senile -- ("I could have sworn Josephine said this, that and the other!!") Now I see you edited the post -- which is a more comforting thought than that I really had lost my mind... But yes -- their letters SEEM clear (in a way) But you have to decipher it all -- and figure out which things they really mean - and which things they had to put in the letter - and then they paste all that stuff in their that has nothing to do with you.. and you have to try to figure out what that means. But then they can go back and point and say - the letter CLEARLY says you have to yadyadayada.. Like in those decision review letters. They say you may choose it -- and if you do - they will do a de novo review -- but if you don't choose it - your case will proceed according to the regular appeals process. My husband did not choose it - but they did a de novo review (or pretended to do one anyway). Then they have all that stuff about how they will review your case and inform you of anything else it needs before they send it on to the Board. Has anyone really had them do that?? Have they ever REALLY reviewed your case and told you what else you needed before the case went to the Board. They just kind of plug along on automatic pilot.... and the vet is supposed to actually know that when they say you don't have to have a de novo review --and you won't get one unless you ask for it - they don't really MEAN that -- they will just do what they do. And the vet is supposed to know that when they say they will review your case and ask you for more information if your case needs anything else that they don't really MEAN that --they are just going to send it on whether it has everything it needs or not. But when they say --fill out the V9 they MEAN that...and of course the vet is supposed to know they mean that because the vet is supposed to know which things they mean and which things they don't mean. And if the vet doesn't know they mean that because he hasn't filled one out in years and things kept going back and forth to the Board anyway -- and because they send him a letter shortly after that telling him his case HAS been sent to the Board... too bad - because the letter CLEARLY states (among all the other stuff they didn't mean) blah..blah..blah.. Too bad - you have to start back at go -- and we will give you a late start because we are not even going to tell you that you claim is closed - and if you call to check on it - we will pretend it is still open, instead of bothering to check -- And the average vet is not versed in all the ins and outs of the system - like most people at had it. I am not a stupid person but it has taken me hours and hours of research --and lots of posts at had it to SOMEWHAT figure out this game called a "nonadvesarial" system. My husband was not a stupid person but he didn't figure it out. He THOUGHT he had done everything he was supposed to do. Free

Thanks Phillip. I haven't even considered that yet. It will probably take me awhile to get there. I know they were really pushing the asbestos claims around here several years back because of the changes in the law that would make lawyers not be able to get as much. They were trying to file them all before that deadline. So now that it has changed --where they can't award as much - most people just act like you can't sue any more. We have had some problems in our area - because two if the counties here were so famous for large jury awards that people were coming here from all over the country to sue. A person hurt on a bus would sue here --if that bus company had any buses come through this county. So it really jammed up our court systems. I think they put a stop to some of that. But thanks for your suggestion. It is certainly something I need to look into down the road. When my husband was trying to get his buddy statements - the guys he got them from were also concerned about their own asbestos exposure --as they worked beside my husband. So maybe I could get a few of them together - and their statements could support each other. Free

Concerning the Service Reps - he had one in Chicago - but really didn't work with him. We were under the impression that all Vet Reps did was had their names on your case - pretty much. We are in the St. Louis area -- but the RO is in Chicago. So I will have to decide whether to get one locally --or up there. Or maybe thy have ones where I can do both. I haven't really expolired that. From some of the BVA cases - it looks like you are at a real disadvantage on the technical aspects IF you have a vet rep that is useless. Because the Vet rep doesn't help - and then the BVA says you were represented by so and so - so you should have known blah blah blah... But I guess I should think of this like I am hiring a vet rep -- and "interview" them a bit first before I pick one. I called the Illinois Office of veteran's affairs once - and they said they could help. The guy I talked to seemed pretty helpful. He is the one that told me if I didn't have an IMO - I could still point out connections with what is actually documented in the medical notes. I do think we built a pretty strong case with some of that..especially in regard to the Direct SC. What my husband's case is for the Direct SC is that he was diagnosed with Cancer when the tumor was 3.1 cm (slow growing adenocarcinoma) 2 years post discharge after a 28 year military career. The base doctor explained the growth rates and doubling times to my husband -- and wrote them all down on a handwritten note that we submitted - It takes about 35 doublings for a tumor to reach 3 cm. The accepted standard doubling rate for adenocarcinoma (pulmonary) is 180 days. 35 x 180 = 6300 days (17 years). Usually it takes pulmonary adenocarcinoma 2.3 years to complete 5 doublings. So is it more likely than not that his cancer STARTED in the service? Yes. It is VERY unlikley that a cancer that typically would have taken 17 years to grwo to 3 cm would have done that in two years. My husband's cancer probably didn't double in EXACTLY 180 days. However, eve in the studies of rapid growing tumors -- the FASTED doubling time found for adenocarcinoma was 72 days. (At 72 days doubling time -- it would take the tumor 6.9 years to grow from inception to 3.1 cm). So it is VERY unlikely that his cancer STARTED and grew to 3.1 cm AFTER his discharge two years prior. I think we figured out it the cancer would have had to have had a doubling time rate of 17 days (double in size every 17 days) to actually start and grow to that size in 2 years. That kind of doubling time for adenocarcinoma is unheard of. Plus - my husband's cancer was surgically removed and then supposedly "recurred" (i.e. they didn't get it all). Even from the time they re-detected it to when they attempted to remove it again --where they could track the size -- His PARTICULAR cancer NEVER grew that rapidly. So I think it would be hard for the VA to say that it is more likely than not that his cancer grew at an unheard of rate for that type of cancer -- especially since it never did when they were able to track it somewhat. So the DIRECT Service Connection was ALWAYS my husband's PRIMARY issue. That his cancer more likely than not BEGAN DURING his active duty in the Air Force. Regardless of what caused it - Regardless of anything else. He HAD cancer PRIOR to his discharge from the Air Force. I was pretty encouraged when I did a search for doubling time at the BVA decisions -- because they actually GRANTED MANY cases based on the doubling time or medically accepted growth rate for cancer. Unfortunately MOST of these were DIC claims, Not vet claims. Maybe because, like in my husband's case - they never get araound to considering that part of the argument until the Vet has already died. But that is the part of the claim the VA has never considered. his initial letter to them told them he was claiming for cancer because his doctor told him it had STARTED in the service (this was a military base doctor). And he gave them the evidence he had of that. He ALSO said - he was including evidence of asbestos exposure - (which would have been a basis for SECONDARY service connection - in that his cancer was CAUSED by his in service asbestos exposure.) The VA sent him a letter that they received his claim for lung cancer TO INCLUDE as secondary to asbestos exposure. But after that - they totally ignored the DIRECT SC claim. The other decisions just noted that the claim was for cancer DUE TO asbestos exposure (rather than TO INCLUDE as secondary...) They had a quasi-C&P report --where the doctor didn't even see him -- and the doctor's report said that he was asked to opine as to whether my husband's cancer was due to asbestos exposure. (No metion of when it started.) He decided it was not - because my husband wasn't part of any occupational screening programs that were not in existance at that time. My husband sent in a NOD and once again informed the VA that his primary claim was that his cancer had STARTED in the service. But then he got the SSOC - copy and paste -- "it wasn't diagnosed in the service or in your presumptive period --there is no evidence that you were exposed to asbestos..etc..) But they never addressed or gave any reasons for denying his claim for DIRECT SC. Again -- they just stated that his claim was for cancer DUE TO asbestos exposure. Last summer we sent a letter informing the VA that as they had never addressed the issue of Direct Service Connection (in that he had medical evidence that it had STARTED in the military -- doctor's notes and medical journals showing that the doctors notes were relying on sound medical principles ) -- That he considered that part of the claim to be UNADJUDICATED and asked them to ADJUDICATE his claim for Direct Service Connection. The only response he got was a VCAA letter telling him what evidence he would need to support the ASBESTOS claim. They have never acknowledged his claim for Direct In-Service Incurrance in their decisions, their C&P requests, or the VCAA notices. The ONLY time they somewhat acknowledged it was in their initial letter -- where they said "We have recieved you claim for lung cancer TO INCLUDE as secondary to asbestos exposure. But as far as the VCAA goes - they have never informed him of any evidence needed to support his claim that his cancer began in the service - despite his consistent insistance that he is claiming that. Free