free_spirit_etc

How important is it to actually have documentation of a specific incident in your SMR in order to get SC granted. I was wondering because once I get done with all this lung cancer stuff (which will probably take forever) I want to start on some of the other things I found in my husband's file. He claimed SC for right shoulder problems - which he said occured when playing softball on team for the Air Force. The exam DID show problems with his right shoulder. However, they said SC was denied because his service medical records did not note any specific complaint of problems with his right shoulder. BUT he filed the claim PRIOR to his retirement. He entered the Air Force in 1970 with NO shoulder problems. He filed his claim for Compensation in 1997 - (while he was STILL IN the service) indicating that he was having trouble with his right shoulder. He retired in 1998. So can a case be made that the shoulder disorder (which was medically supported) that was NOT in existence when he entered the military in 1970 was more likely than not INCURRED DURING service - if it was reported PRIOR to his retirement (even if there is no specific incident documented in his medical recorded that would show EXACTLY when it first occured?) Free

Josephine, I would think that you could use the fact that they used the term aquired psyciatric disorder to your advantage (as long as they admit that you have one). Aquired means NOT innate (inborn, lifelong, something you have always have). To say it is acquired does NOT mean that it is acute and will be a brief illness. Aquired means that you weren't born with it, didn't used to have it - but ACQUIRED it at some point and time --that it kind of "happened" to you. So the use of the word acquired could really help in your case... as long as you can show that it was acquired during your time in the service. Free

Good move. I don't see where the VA values internal parts very much. In their cancer ratings - they pay additional benefits if you lose part of a breast or part of a testicle to cancer. But they do NOT pay additional if you lose part of a lung, colon, stomach, etc. It looks like - if it isn't something you can visually see - they don't think you will really miss it. Free

Josephine, I can't remember which thread --but you posted the other day asking how we could understand what we read. The answer is -- I don't know. I guess it takes time. I can read laws and understand them. I can read technical information and understand it. I can read almost ANY information and understand it with little difficulty. I have a Bachelor's Degree in Psychology / Communication. I have a Mater's Degree in Communication. I have been teaching at the college level since 1993. And the VA has me STUMPED!!! Every time I think I find an answer - the answer raises 12 more questions which have thirty-seven different answers -- and all the answers tangle into and around each other in a way that it is hard to make sense out of any of it. I have spent hours and hours for months and months reading this stuff -- and I feel like I have just touched the tip of it. Those in the group who have spent more time (years, I think) seem to have a pretty solid grasp of much of the information. So the best the rest of us can do is research the best we can, ask for help when we don't understand, support each other -- and keep on keepin' on. Free

God and the Soldier, all men adore, In times of strife, but not before; When danger is passed, and all things righted, God is forgotten, the Soldier is slighted.

IT IS THE SOLDIER “It is the soldier, not the reporter, Who has given us freedom of the press. It is the soldier, not the poet, Who has given us the freedom of speech. It is the soldier, not the campus organizer, Who has given us the freedom to demonstrate. It is the soldier, Who salutes the flag, Who serves beneath the flag, And whose coffin is draped by the flag, Who allows the protester to burn the flag.” Author Unknown

Yes. I don't know if they could deduct the past pension from you. But there are ways they probably could. It would depend on how they view pending $$. If they say that the SC was pending when they gave you the need based income - then they could probably take the money they gave you back out of the amount they pay you for retro. Actually, even if the money is not pending - they can sometimes take it back. When my husband quit teaching last fall - he drew unemployment. He had no intention of applying for SSD --as we still didn't consider him disabled. Then this summer, we realized that he could get SSD. He got approved for SSD in a few weeks. The ink was not even dry on his chek before unemployment wanted to be repaid for a portion of what he drew from them. He didn't have to pay it back because they figured he drew it dishonestly. It was because he was paid SSD (as back pay) for the same time period - and that was counted as a "pension" he recieved. Since SSD was about twice as much - he had to pay about half of his retro SSD check back to Unemployment. So the Vetereans could probably do that too. If you recieve RETRO - they might recalculate the pension you were due during those years -- adding the retro in. Of course, if it was only a 10 or 20 percent disability --if the SC would still have made you eligible for the pension -- then they couldn't take any back. But if -- say - you would have recieved an amount that would have put you over the pension - they might be able to withhold THAT amount. Free Free

That is something that gets me. You have to be clear in your letters -- but they can send out al these vauge letters without clarifying what they are talking about. My husband filed one claim when he retired. And then he appealed everything they didn't approve. After that he had things bouncing back and forth between the RO and the BVA for years without him filing another thing. Later he filed his claim for lung cancer. He sent in a NOD and got a SOC on that. And then a few days later he got a letter that said his appeal was being sent to the BVA. Since he hadn't disagreed with anything excet for the lung cancer for several years -- he thought they sent the lung cancr claim. after waiting and waiting for it to be heard -- he found out the claim was closed. .and that the additional evidence we are sending is a re-opening of the claim - not for an appeal. But there letters just say "Your appeal has been forwarded" -- without clarifying WHICH appeal. Free

Hey! That's fine! B) I just ran across it when I was looking for something else...and posted it in case it applied -- but didn't take the time to try to figure it all out - thought I would just throw it out there (in case it would help) and leave ot to you. B) Free

Yeah. I am wondering how you can be given due process if they don't actually have to give you your entire SOC if someone determines it may harm or upset you. I guess, maybe if you think that has happened you would have to get an agent who would be allowed access to the entire SOC. It seems like they woiuld AT LEAST have to inform you that you did not get the whole report. I agree - save everything forever. I am amazed at all the errors in my husband's file. Free

I am not sure if thsi would apply to your claim -- but I ran across it and figured I would send it on: http://www.va.gov/vetapp98/files3/9824107.txt Citation Nr: 9824107 Decision Date: 08/10/98 Archive Date: 07/27/01 DOCKET NO. 97-04 703 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Whether there was clear and unmistakable error (CUE) in an RO rating decision of January 19, 1977, in failing to grant service connection for schizophrenia. 2. Whether new and material evidence has been presented to reopen a claim for service connection for an acquired psychiatric disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Ehrman, Counsel INTRODUCTION The appellant had active service from June 1976 to November 1976 This matter comes before the Board of Veterans' Appeals (Board) on appeal from RO rating decisions dated in March 1996 and July 1996 which found, respectively, that new and material evidence had not been received to reopen a claim for service connection for a nervous condition, and found no CUE in the January 1977 RO rating decision which denied a claim for service connection for schizophrenia. REMAND The appellant and her representative assert that the January 1977 VA RO rating decision failed to apply or give any consideration to the application of the presumption of sound condition, a regulatory and evidentiary presumption of law found at 38 U.S.C.A. § 1111 (West 1991), and that service connection for an acquired psychiatric disability is thereby warranted. A March 1998 report of contact evidences the additional argument of the veteran's representative that the January 1977 RO rating decision failed to properly apply or give any consideration to 38 C.F.R. § 3.1(m) (1997), and that this failure constitutes CUE as well. It is argued that under § 3.1(m) service department (and apparently Medical Evaluation Board (MEB)) determinations that injury, disease, or death occurred in the line of duty are binding on VA, and that in the case presently on appeal, the VA is bound to the October 1976 MEB finding that the appellant's schizophrenia originated in July 1976, that it had been incurred in the line of duty, that the cause was incident to service, and that schizophrenia had not existed prior to service. Accordingly, the Board finds that the appellant's procedural rights in this matter may have been compromised under Bernard v. Brown, 4 Vet.App. 384 (1993), as the August 1996 statement of the case (SOC) fails to make any reference to the above referenced pertinent law and regulations--38 U.S.C.A. § 1111 (West 1991) and 38 C.F.R. § 3.1(m) (1997). Additional failures are also found. The Board similarly notes that further development is needed of the claim of new and material evidence to reopen a claim for service connection for schizophrenia, under existing decisional precedent of the United States Court of Veterans' Appeals (Court). In Akins v. Derwinski, 1 Vet.App. 228 (1991), the Court made the following observation with regard to the failure to apply a certain regulatory presumption as new and material evidence to reopen a claim for service connection: [T]he factual predicate demonstrated by the presumptions have [sic] an important evidentiary value and, to that extent, are the functional equivalent of evidence. [Where] it is clear that this evidentiary presumption was not previously considered and [where] it bears directly and substantially on the issue [on appeal], it provides a basis for reopening the claim. Akins, 1 Vet.App. at 230. (Emphasis added). The language of the regulation dictate that once the presumption [is] in place, the burden shift to the government to offer clear and unmistakable evidence to rebut the presumption of service connection. Akins, 1 Vet.App. at 232. Accordingly, with regard to both claims on appeal, the Board finds that the appellant's procedural rights may have been compromised under Bernard, Supra., as the August 1996 statement of the case (SOC) fails to make any reference to all pertinent law and regulations--including 38 U.S.C.A. § 1111; 38 C.F.R. § 3.1(m) (1997); and, Akins, Supra. As such, the veteran has not been provided notice of all applicable law and regulations governing both of her claims on appeal. That is, the SOC does not specifically address the issues on appeal as asserted, with reference and citation to all applicable law and regulations regarding the presumption of sound condition and CUE, the definition of 'line of duty' as defined in § 3.1(m), and Akins, Supra., regarding the submission of new and material evidence to include the application of the presumption of sound condition. It must also be noted that service medical records, which date from June 30, 1976--the date of the veteran's induction into service--show that she was initially hospitalized in July 1976 for schizophrenia, manifested in parted by increased motor activity, after one week of basic training. A psychiatric history was taken at that time. As such, consideration should be given to the application of 38 C.F.R. § 3.303© (1997), wherein preservice origin can be shown either by symptoms of chronic disease from date of enlistment, or so close thereto that the disease could not have originated in so short a period, or, as with mental disorders characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration, or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis. As the August 1996 SOC is silent as to 38 C.F.R. § 3.303©, the Board finds that Bernard, Supra, is again indicated, and that on Remand, and upon the completion of the below listed development, the claims on appeal should be readjudicated, with a supplemental statement of the case (SSOC) to include citation to and consideration of all applicable law and regulations, including 38 U.S.C.A. § 1111; 38 C.F.R. §§ 3.1(m) and 3.303© (1997); as well as Akins, Supra. The duty of the VA is to assist claimants in the development of facts pertinent to their claims, as set forth in 38 U.S.C.A. § 5107 (West 1991), and 38 C.F.R. §§ 3.103 and 3.159 (1997) require that the VA accomplish additional development of the record if the record currently before it is inadequate. Littke v. Derwinski, 1 Vet.App. 90 (1990). In view of the above, this case is REMANDED for the following: 1. The RO should contact the veteran and request that she submit the names, addresses and approximate dates of treatment of all private or VA psychiatric care providers who treated her for any psychiatric or mental illness both prior to and since service, including treatment from July 1976 to the present, if not already of record. After securing the necessary release(s), the RO should obtain copies of any additional records, if they are not already in the claims folder, including records from "Riverside Hospital" and the VA Medical Centers in Salem, Virginia, and Hampton, Virginia, as well as any other VA medical center identified by the veteran, dated from July 1976 to the present. 2. The RO should readjudicate the issues of whether there was clear and unmistakable error in a rating decision of January 1977 in failing to grant service connection for schizophrenia and whether new and material evidence has been presented to reopen a claim for service connection for an acquired psychiatric disability, with specific reference to, and consideration and application of 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. §§ 3.1(m) and 3.303© (1997); and Akins, Supra. If the decision, in whole or in part, remains adverse to the veteran, she and her representative should be provided a SSOC, to include all pertinent law and regulations regarding CUE and new and material evidence to reopen a claim, including 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. §§ 3.1(m) and 3.303© (1997); and Akins, Supra., with an opportunity to respond thereto. Evidence recently obtained and not previously considered must be reviewed.

http://www.warms.vba.va.gov/admin21/m21_1/mr/part1/ch05.doc d. Matters Not to Be Disclosed in an SOC Do not include matters in an SOC of a sensitive nature that would be injurious to the physical or mental health of the appellant, including • matters considered by responsible medical authority to be injurious to the appellant’s health • references to  a prognosis of “poor” or “terminal,” or  conditions of misconduct, unless the specific misconduct is relevant to the issue, or • discussions of evidence in a way that might provoke feelings of hostility, resentment, or rejection on the part of the appellant or his/her family. 19. Preparing an SOC, Continued e. Disclosing Information to the Appellant’s Representative All matters can be disclosed to the appellant’s designated representative unless disclosure to the representative would be as harmful as if made to the appellant. Therefore, in some cases, two different versions of the SOC may be prepared when it is permissible to furnish full information to the representative. Use the table below when disclosing information to the appellant’s representative. If the appellant … And the … Then … has a representative matters omitted from the appellant’s SOC can be released to his/her representative • prepare a separate SOC for the appellant and omit matters not to be disclosed • furnish copies of the edited SOC to both the representative and the appellant, and • annotate the representative’s copy and the original SOC (full statement) to show what portions were deleted from the copy sent to the appellant. Note: Annotate the statements to the effect that the material omitted from the appellant’s SOC is not to be revealed to him/her. 19. Preparing an SOC, Continued e. Disclosing Information to the Appellant’s Representative (continued) If the appellant … And the … Then … matters omitted from the appellant’s SOC cannot be released to his/her representative, such as information that might provoke feelings of hostility, resentment, or rejection on the part of the representative • prepare a modified statement omitting these matters • furnish copies of the edited SOC to the appellant and his/her representative, and • annotate the original SOC to show that matters not to be disclosed to the appellant or his/her representative were omitted from their copies. does not have a representative SOC contains matters not to be disclosed to the appellant • eliminate those specific references from the SOC that will be furnished to the appellant, and • annotate the original SOC (full statement) to show what portions were deleted from the copy sent to the appellant.

I have read some posts in here about the RO CUEing itself. I also read sometime somewhere in the M21 that if a claim had a clear and unmistakable error --the RO should correct the error. So if you reopen a claim --and point out a significant error made in the adjudication of the original claim (especially failure to adjudicate it at all......but also other errors) AND the RO acts on that error --and adjudicates it...(or corrects whatever error you point out... Would that have the effect of possibly arguing for the effective date should go to the original date of the claim? If the claim was not still pending as unadjudciated because they denied another part of the claim -- but then act on your request to correct their error.... would this revise their original NONdecision? Case scenario File claim >> part of claim denied>>part of claim ignored. Reopen claim >>ask RO to correct error of not adjudicating the part of the orginal claim that they ignored. If the RO CORRECTS that error by adjudicating it --then could that be a basis not for a CUE (since they corrected the error) but for an earlier effective date based on the original date of the claim for which they corrected the error? Free

I am thinking the difference might be that if the BVA requests the opinion --and you aren't give notice of it, or the right to respond -- you have been denied due process --of being able to have the evidence reviewed by the AOJ. --

Thanks !Vike!! It gets so frustrating to search and search and search. I am still not totally clear though. This applies to an Independent Medical opinion. The BVA manual says notification and the right to respond has to be given for IMO AND VHA opinions which are BVA generated. The M21 doesn't mention any rights of the veteran in regard to this. Looking for a way they violated the law at the RO level...to see if it can be part of a cue. And actually -- someone horrifying was their section on veterans rights in C&P exams -- the "rights" they listed are: 1. the veteran doesn't have the right to be accompanied by counsel to the exam. 2. The veteran does not have the right to record the exam. Those are RIGHTS?????????????? Ack!!!!!!!!!!!!!!!!!!!!!!! Free

Okay. Thanks. I will dig deeper in the M21 book. Haven't been able to find the whole thing at once -- just bits and pieces. But when I read some of the appeals --and court cases - they seem to say the M21 is just a manual -- NOT really the law... so not following the manual is not a matter of not following the law. But when I search the law -- it seems to talk about everything the BVA must do (not the RO).... actually - some of the law is about the Secretary (which all levels are actually acting in the Secretary's behalf). So I keep trying to find what LAW applies to the RO -and what LAW applies to the BVA. It seems to tangle up. Free

On my husband's inital cancer case - he did not SEE the VA examiner. The examiner just issued an opinion. According to the BVA Handbook -- the veteran is supposed to be notified when a medical opinion is requested --and also is to be given a copy of the opinion and time to respond before deciding a case. Does this also apply to the RO?? Is it the basis for a CUE if a decision was made without notifying us that an opinion was requested or providing us with a copy? Is not affording a veteran due process the basis for a CUE? The VA examiner used a C&P exam report -- but my husband never SAW him --and he stated that he was asked to give an opinion after reviewing the medical records. http://www.va.gov/publ/direc/BVA/BVAHB8440.htm SECTION V. 38 C.F.R. § 20.903 COMPLIANCE 2.80 RESPONSIBILITY FOR COMPLIANCE PROCEDURES The Board’s Rules of Practice require that we notify appellants and their representatives when we request an opinion from VHA, AFIP, an IME, or GC. 38 C.F.R. § 20.903. This is a two-step process, and is the responsibility of the Administrative Service. 2.81 STEP ONE—NOTICE THAT AN OPINION HAS BEEN REQUESTED The appropriate administrative team will prepare a letter for the signature of the Director of the Administrative Service informing the appellant and the representative, if any, that the Board has requested the opinion. Date and mail the notice letter after the Director signs it. File one copy of the letter in the Briefface and, since the applicable VA records folder will already have been dispatched with the opinion request, temporarily store another copy in the Briefface to file in the applicable VA records folder when it has been returned. 2.82 STEP TWO—FURNISHING A COPY OF THE OPINION AND AN OPPORTUNITY FOR RESPONSE The second step occurs when the Board receives the requested opinion. At that time, the appropriate administrative team will: File the copy of the initial notice letter that was temporarily stored in the Briefface in the applicable VA records folder. See ¶ 2.81. If the opinion is a GC opinion, make sure that the Office of the Chief Counsel (01C) has seen the opinion and completed its processing. See ¶ 2.69. If not, send the file to (01C) before proceeding. Mail a copy of the opinion to the representative, or to the unrepresented appellant, with a cover letter allowing a period of up to 60 days from the date of mailing of the copy of the opinion for response. Also see ¶ 2.83. File a dated copy of the cover letter in the applicable VA records folder and in the Briefface. Establish suspense-date control measures. If a response is received, file the original in the applicable VA records folder and a copy in the Briefface. After filing the response, or when the time for response has passed, return the file to the Board member(s) to whom the case is assigned. Free

I was reading something interesting about the VA being "paternalistic." ahem... But it compared paternalistic and maternalistic approaches. It said males went more for the paternalistic approach -- providing the veteran with $$$$ to save or spend as they chose. Women tended to go for a more maternalistic approach -- wanting to build more veteran's homes, provide them with services, etc. to "take care of them" instead of giving them descetionary $$ to spend taking care of themselves. Interesting to think about. Free

Yeah..Kind of like if you work for someone and they don't pay you most of your wages for years --and you fight and fight and finally get them -- would people think you are "lucky"? What is sad is that we feel someone is lucky when they get the fairness and justice that ALL deserve. I will have to say when my husband got his back pay from Social Security - he traded in his 10 year old car that had 247,000 miles on it and a major oil leak -- and got a truck with a bumper to bumper guarantee. And I will have to say it is very nice to leave home and know your vehicle will get you back home with no problems. Free

I agree. I agree. I agree. I just did an extensive study on the history of veteran's benefits - working with my husband for his paper for grad school. One of the earliest vet benefits was giving veterans a prefered location from which they could beg for alms. (That MIGHT pay better than the current system). And lots of benefits are not really GIVEN to the vets - they are backloaded. Instead of paying the service member the amount they SHOULD recieve for their labor -- they "backoad" it -- by paying LESS to everyone - and promising benefits down the road for those deemed "deserving." So the benefits are paid through money saved by not paying the vets enough when they served. It is THIER money. It has always BEEN their money. It was just held back to pay them later (IF they are deemed "deserving") Free

Thanks! I thought so - but wasn't sure... and most of the laws I was finding specifically about adjudication of claims kept refering to the BVA - so I didn't know if those same procedures applied to the RO. Free

LOL -- Actually my husband is in one of those six states --and the re-doing the claims is a joke. He never recieved a letter (as required) --and the VA website has an outreach program -- you can email them and ask questions -- It tells you if you think they made amistake in your claim to email them. he emailed them and told them he thought mistakes had been made in his claim -- and he got a copy and paste response that said that people get what they should and that if you get a lower amount it is because that is how it is rated. They aren't really re-doing claims. They are just doing an outreach program - to let vets know that they can re-open claims that were previously deny, or file for CUES -- but they don't really tell you how to reopen the claim or file a CUE when you contact them. (it seems like they could AT LEAST copy and paste THAT information when you specifically ask what you can do if you think there was a mistake.) So basically - they are just doing an outreach to let vets know that what is available to ALL vets is available to THEM -- but then - they aren't giving the information of how to reopen or file cues. Free

The adjudication procedures I find all refer to the BVA. Do the same standards apply to the RO - or do they have a different set of standards? Needing to know for my list of what I am disagreeing with... Free

Thanks. I have a better understanding now of the anger in your response. I think for them to consider you "cured" you have to go five years with no SIGN of cancer...not just live for five years. My husband's cancer was detected in 2000 - he is still alive -- but they don't consider him cured because he has active tumors. When he went through periods of no active tumors being detected -- he was considered in remission. After five years in remission = they consider you cured. But there is much twisting with that too. My husband's cancer was surgically removed in 2000. When it was redected right in the stump of the brochus that was clamped off from his previous surgery - they said it RECURRED. We don't think it came back -- we think the part they left in just grew big enough to be detected again. One thing they also go by is survival time from detection. They are now able to detect many cancers much earlier due to improvements in detection methods. So -of course, the survival rates are considered MUCH better. If they find the tumor two years earlier -- you can still die at the same time you would have if they would have found it later -- but it LOOKS LIKE you survived two years LONGER when they crunch the numbers because you survived two extra years AFTER detection. But we are trying as many things as we can to beat this - and not leaving it entirely up to the doctors. So far we have been blessed with more time --and we have been blessed with GOOD time. And we will take all the good time we can get. Free

Army, Yeah. I know a lot of stuff is propoganda. And the politics surrounding cancer and cancer treatment are substantial. That is one reason my husband is using alternative methods of healing, as well as going the traditional route. The main reason I posted this is that if a veteran has smoked --and has lung cancer, they have to overcome lots of obstacles in getting service connection. It is easy for the VA to overlook the asbestos / smoking connection - and just say "Well - you smoked." Since this site gives substantial weight to the combined interaction of smoking and asbestos exposure -- which can help a veteran rebut the argument that their cancer was caused by smoking alone -- and since the site is a military site -- I wanted to share it in case it could help a brother or sister with their claim down the road. Even if everyone doesn't agree with what it says - if it helps one veteran - it is worth it. And I also am having trouble understanding the tone of your response. My intent was to help other veterans who might need an additional resource. My intent, also, is to help my husband. I don't quite understand the harshness of your response. Free (still hoping for a cure for her husband because she loves him very much and doesn't want to lose him)