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Third Class Petty Officers
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About bluenote

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    E-3 Seaman

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  • Service Connected Disability
  1. Folks, Beyond the buddy statements noted above (I suspect based upon facts provided VA denial was based on veterans' service falling outside of the VA acknowledged use of herbicide agents along the DMZ), worth contacting the National Archives Textual Branch Archives for copy of unit history (I would request information at the company not battalion/brigade level) and National Personnel Records Center for copy of morning reports (submission of SF 180 with the "other" block checked and completed). NPRC would also have copy of ancillary personnel records (beyond DD-214) that should provide clear indication of dates in Korea. As Berta noted, ROs are really not following M21-1 for JSRRC verification for veterans not specifically noted as being proximate to DMZ. Seth
  2. Folks, I've reviewed the report in entirety. Significant for VA consideration from my humble perspective --- and it the past has taken 6-9 months for proposed regulatory response: (1) will be the reiteration of limited or suggestive association for hypertension/stroke, 810ish-850ish (this was recommended in the 2012 Report for which the VA did not make any regulatory changes). Page 15 notes the IOM was "disappointed" that pending cohort studies were not yet available for consideration; (2) recommendation for limited or suggestive association for bladder cancer, p 516-540ish; (3) clarification of Parkinson's-like symptoms, p 743; and (4) recommendation for limited or suggestive association for hypothyroidism, ps 841-860ish. I'll also note the IOM again addressed issues pertaining to non-cancerous respiratory conditions (COPD, etc..), pg 870s, maintained inadequate or insufficient but noted there disappointment that the long-term cohort study regarding COPD was not yet available for consideration (PG 15). The expected study was also mentioned in the 2012 Agent Orange Report. Seth
  3. Folks, I've read to the IOM report a few times. I don't see the VBA changes the claim adjudication based upon the study (been wrong before). If you are dealing with the issue, first identify which chemical/biological agent you were exposed to. Providing general information to your physician about SHAD/112 is not going to be of benefit since that type of exposure differed significantly among service members. Vync, recent IOM study really focuses on morbidity so there are charts identifying the number exposed, still living, etc..
  4. study released yesterday . . . ish. Link at http://iom.nationalacademies.org/Reports/2016/Assessing-Health-Outcomes-Among-Veterans-of-Project-SHAD.aspx Cheers
  5. Roadrunner, don't worry . . . possible I may track changes too closely. August 2015 modification to M21-1 did leave out certain language that would effect claims for Thailand vets without MOS consistent with security details. However, October 30, 2015 change to M21-1 added the language “otherwise served near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, other credible evidence…” back to the adjudication manual.
  6. Folks, just for heads-up. M21-1 change dated August 7, 2015 removed language from Thailand exposure issues of "otherwise served near the air base perimeter as shown by evidence of daily work duties, performance evaluation reports, other credible evidence." This language was reflective of a 2010 C&P Bulletin. . . .
  7. Folks, For clarity, there is no direct appeal to the Board of Veterans' Appeals from an initial VA Rating Decision. The AOJ (be it through DRO or traditional appeal) will first issue a decision subject to NOD (SOC further denying, RD granting. . . or some combination of the two depending on issues present). BVA only has jurisdiction when a Statement of Case has been issued and a formal appeal by claimant/veteran has been perfected (should be through submission of VA Form 9). For what it is worth, I don't necessarily belief use of reconsideration is effective for various reasons (and I agree with USMC Vet that SNAFUs re: effective dates do occur) . . . but I do like formal guidance so that the disagreements between VA/Veteran are substantive --- not procedural --- in nature. Seth
  8. Folks, I know this issue (reconsideration) gets asked a lot. In last few weeks, the VA amended the VA Adjudication Manual to include reconsideration of an Rating Decision before the AOJ. Worth a read so everyone is on same page at M21-1, Part III, Subpart ii, 2.F (August 2015). I uploaded section at http://legalnewsyoucanuse.com/va-benefits-news/va-reconsideration-of-an-initial-rating-decision-amended-va-adjudication-manual/ I could not figure out how to upload directly onto hadit. Cheers Seth
  9. Folks: I'll give my humble two-cents because at the macro-level it's an issue of agency legitimacy whenever a claimant is misinformed about the nature of a request for reconsideration by either VSO . . . or more critically employees of the VA [which is unequivocally occurring]. As noted by many, a "request for reconsideration" will simply be processed by the RO as a new claim (in the case, denial of S/C a claim to reopen). There is a regulatory provision that can preserve the effective date of award to original date of claim on the claim to reopen, but EED before establishing service-connection is throwing the cart before the proverbial horse. By its nature, a request to reopen requires the claimant to submit new and material evidence as an initial threshold evidentiary inquiry. Below is the general framework for what is considered "new" and "material". My principle concerns are this is not being explained to claimants when they are filing a "request for reconsideration". Moreover, I don't feel confident that veterans (most of which have never seen much of the evidence associated with the C-File) can properly assess whether a statement or document is material or new . . . not because the veteran is not smart enough or doesn't have knowledge of Title 38 but because they are emotionally involved in the claim and commonly feel that the RO simply misconstrued the nature of the evidence in the existing record. In short, there are circumstances where its in the veteran's interest to submit a "request for reconsideration" . . . mainly because the timelines on appeal have created that scenario; however, the individual needs to be informed about the nature of the claim, what evidence would need to be submitted, and the consequences of not timely appealing a prior Rating Decision. I don't believe that the system (VSO/DVA) currently has the ability to provide that level of information. Seth ______________________________ 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. 38 C.F.R. § 3.156(a).
  10. Suefreedom: I believe there is a IOM report on Project SHAD/112 expected by end of fiscal year. More info can be found at CDC/IOM and VA Publichealth websites. As for exposure issues for civilian pop, the type of exposure was targeted (unfortunately towards servicemembers) so I suspect you'll be chasing ghosts . . . Seth
  11. Berta, Understand the general application of Section 4.6 (consideration of evidence), but gentleperson's bet that the basis for CUE was something more specific (for example, VA ignored a medical opinion in the record assessing etiology as SC without contrary evidence) in nature than that. The Board may have cited 4.6 in a string cite (although I have never seen this). Regardless, if the VA granted a request for revision based with that section as a legal predicate, kudos to you :) Asker, one thing to be aware of is the evaluation of a request for revision (CUE) will be based upon the record and laws that applied during the original adjudication of the claim. Consequently, after pulling the operative medical evidence available at the time of the original adjudication you'll need to go back to the CFR, specifically that diagnostic code, that existed at the time of the original adjudication. Link to obtaining CFR at www.gpo.gov. For even older CFRs (trust me this does occur), local law school will have copy, or can otherwise be obtained through internet. Good Luck, Seth
  12. Navywife: Failure to provide a C&P examination at the time of the original adjudication of the claim cannot form the basis for a request for revision (CUE). If your issue is rating percentage for an operative period of time in the past, the evidence at the time of the original adjudication of the claim would need to clearly and unmistakably demonstrate that the individual was entitled to a higher rating percentage for that period of time (i.e. no factual dispute between then-existing medical records). In order to figure out what evidence was available during the prior adjudication, look towards date stamps (mixed bag depending on the RO), dates of medical examinations, and - frankly - the order that the documents were placed in the C-File. Section 4.6 and other provisions regarding evidentiary weight of evidence and normal burdens, do not apply in the context of a request for revision (CUE).
  13. Just for clarification, if you file the VA Form 21-8940 the RO should not open up a claim for individual unemployability. TDUI is not a claim. What should have happened is the RO should have opened up a claim for increase or S/C for any disability that you listed in Block 7 as causing you to be unemployable.
  14. Based upon the provided facts something is procedurally amiss. If you filed a Notice of Disagreement in relation to a recent Rating Decision the next sequence of events would be notification of the Statement of Case (in the absence of the VA granting full entitlements for the claims subject to the NOD). Once you received the SOC you then have 60 days to file a VA Form 9 (substantive appeal to the Board of Veterans Appeals). It the facts are as described a SSOC would have no application to your claim based upon status. Somewhere the wires are being crossed. Seth
  15. There is a provision for requesting an extension of time to file a Notice of Disagreement for once the time limit has expired for “good cause show” pursuant to 38 C.F.R. § 3.109(b). That said, and in my humble opinion, this will likely end in an unsatisfying result for the veteran. As Jbasser indicated you can file a request to reopen (requires new and material evidence) for a condition that was previously denied or a claim for increase in disability rating if your condition has increased in severity since the prior now-final Rating Decision. Good Luck Seth
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