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gossjl04

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About gossjl04

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  1. Thanks Mr. A. Yes, he did use medical rationale and he did review all of my SRMs and treatment records. They all point to having started at Mountain Warfare School. He said they started there, but the VA said that since it was an illness, it does not qualify. This is a totally new condition that I never had before I got it there. Would you be able to provide any links to the CAVC that you mentioned you had found? I'd like to see if there is any other information that could be useful. Thanks
  2. I agree, the title of the orders is important. Title 10 is mostly treated as Active Duty. I have come across a few exceptions in my research. Title 32 is a little more difficult, but from my research, I'm 99% sure that I am right, the VA is wrong, and that I'm entitled to benefits for this fungal infection. I finally talked to my DAV rep, who basically told me that he would file an appeal for me, but said that he didn't think that I had a chance. I asked him if he read everything that I sent him and if he had, how could he think that I didn't have a chance. Then I brought up all of the points listed and he now thinks that I have a chance. Anyways, I learned alot so if anyone has any specific questions on this topic, please ask me. Below is my research on my situation. if you have a minute, (or 10), please read through the below evidence, regulations, and logic and see if you can poke any holes in it. Thanks! My claim for service connection for Tinea Versicolor was recently denied because “VA Regulations document that Active Duty For Training does not qualify as active duty for VA benefits unless a person disabled or dies from an injury incurred or aggravated in the line of duty or has a cardiac arrest or stroke. As the rash is not due to an injury in the line of duty, it is not subject to service connection.” The regulation referenced is incorrect. The VA says that since I was on Active Duty For Training (ACDUTRA), I need to have been disabled from an injury in the line of duty and that a rash is not due to injury. However, that specific regulation (injury only) applies for inactive duty for training (IDT). The regulation for ACDUTRA is as follows below: any period of active duty for training during which a person is disabled or dies from − a disease or injury incurred or aggravated in the line of duty, or − an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident while proceeding directly to, or returning directly from, a period of active duty for training, or Thus, this means that the rash would be covered under this regulation if it was incurred in the line of duty, which it was. If the VA tries to say that a rash (Tinea Versicolor) is not covered, the appeals case referenced below is for a national guardsman who was previously denied his claim of dermatophytosis (claimed as tinea pedis) which is also a fungal skin infection that he incurred while on ACDUTRA. Citation Nr: 1532700 Decision Date: 07/31/15 Archive Date: 08/05/15 DOCKET NO. 13-36 382 In this appeal, the VA states that: “When a claim for service connection is based only on a period of ACDUTRA, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" by virtue of ACDUTRA service alone. Id.” Thus, it looks like the VA accepts fungal skin infections as diseases covered for ACDUTRA. Next, we need to establish that I was on ACDUTRA orders. I’ve attached my orders for Army Mountain Warfare School, which show that I was on Full Time National Guard Duty for Active Duty For Training under 32 U.S.C. 502. From M21-1MR, Part III, Subpart ii, Chapter 6, Section 3 “Duty Status and Eligibility of Personnel in the National Guard Service”, Paragraph (a): Therefore, full-time operational/support service performed by Guard personnel in ACDUTRA status does not qualify as “active duty” for purposes of establishing eligibility for VA benefits unless the member or former member has a service-connected (SC) disease or injury that was incurred or aggravated in the line of duty during the ACDUTRA period. And from paragraph (C. Qualifying Service Under 32 U.S.C.): Full-time National Guard service is considered active duty for training under 38 U.S.C. § 101(22)(C) if performed under 32 U.S.C. § 316, or 32 U.S.C. § 502, 503, 504, or 505. This is true regardless of whether the member is · performing operational duty, or · undergoing training. National Guard service does not meet the definition of active military, naval, or air service under 38 U.S.C. § 101(22) unless the member or former member is disabled during service and, therefore, subject to an exception outlined in 38 U.S.C. § 101(24) or 38 U.S.C. § 106(b)(3). Thus, since the VA doctor at the C&P exam said that the rash was currently present, was covering 40% of my body, and started at the Army Mountain Warfare School, AND I was on Full Time National Guard Duty for Active Duty For Training under 32 USC 502 AND I was disabled while on Active Duty For Training, then I think it’s pretty safe to say that I am eligible compensation under all of the references and regulations listed above.
  3. From my limited experience, this one might be difficult. Their statement saying that NG members must be on Title 10 orders in order for a disease to SC'ed is just plain incorrect, as my case and the VBA Appeal that you referenced on my post show. From my understanding of the regulations, for a disease to be SC'ed for the NG, it has to either occur or worsen while the veteran is on a period of Active Duty for Training. The three diseases they list that are covered apply for a period of Inactive Duty For Training, OR for qualified travel to and from Training. If it's Active Duty for Training, then additional diseases are covered. Can you list all of the conditions that he applied for and whether or not they are connected to Active or NG service? If he still has shoulder problems, then it should be easy to tie it to his shoulder separation. Even arthritis should qualify, as I'm only 30 and have it SC'ed iin both of my shoulders (traumatic arthritis in one, and degenerative arthritis in the other). Arthritis is normally 10%, unless it affects range of motion, then it could be higher. I'm not too knowledgeable on cancers, but if it was caused by some form of environmental exposure, are they any other service members that have developed cancer while stationed at the superfund site? It may be similar to the Camp Lejeune contaminated water issue case. Line of Duty determinations (LODs) are important in proving that something ocurred during National Guard duty, but that assumes that everything gets documented. In my case, when I was at Mountain Warfare school, I had an LOD for a tick bite, but none for my fungal infection, but I did have treatment records from the medic in charge at the school and they seemed to accept that. Like I said, list all of the conditions and I'll try to dig into each one individually.
  4. Thanks Mr. A.! At this point, I think that I have all of the relevant regulations pinpointed and that VBA appeal that Vync provided should provide for a slam dunk case. I'm hoping my rep gets back in touch with me soon. I'm wondering if it would be enough cause to file a CUE, instead of an appeal so that I don't have to wait another year for a determination. On an unrelated note, do you know if annual training is considered to be a period of Inactive Duty for Training or Active Duty for Training? Thanks again, everybody!
  5. Vync, This is awesome! Thank you so much. My case very closely resembles this case. After I get done copying and pasting and typing a summary to my DAV rep, I'm going to take a look at your thread. I'm new, but I'll try to lend a hand in research or development if I can. Thanks again!
  6. Thanks Chuck. Yeah, it's very frustrating. It was denied the first time a month after I submitted it. Then, I had a reconsideration pending for it and my shoulders and a year later, it was looking promising and I even went to the C&P exam for the rash, then it was denied. But yeah, like you said, I have my foot in the door with my SC'ed two bad shoulders. I've submitted all of this to my rep at the DAV and am just waiting to see what he thinks. Happy Holidays!
  7. Merry Christmas Everyone! Has anybody figured anything else out about this topic? I did some more digging and found the following from the VA document 'M21-1MR, Part III, Subpart ii, Chapter 6: Determining Veteran Status and Eligibility for Benefits' From paragraph (a) Therefore, full-time operational/support service performed by Guard personnel in ACDUTRA status does not qualify as “active duty” for purposes of establishing eligibility for VA benefits unless the member or former member has a service-connected (SC) disease or injury that was incurred or aggravated in the line of duty during the ACDUTRA period. And from paragraph (c) Full-time National Guard service is considered active duty for training under 38 U.S.C. § 101(22)(C) if performed under 32 U.S.C. § 316, or 32 U.S.C. § 502, 503, 504, or 505. This is true regardless of whether the member is · performing operational duty, or · undergoing training. My takeway from this is that since I went to the Army Mountain Warfare School under title 32 U.S.C. 502, that period of service is considered to be active duty for training (ACDUTRA). Next, from paragraph (a), it states that this period of active duty for training does not qualify as “active duty” for purposes of establishing eligibility for VA benefits UNLESS the member has a service-connected disease or injury that was incurred in the line of duty during the period of Active Duty For Training (ACDUTRA). Since my tinea versicolor (fungal skin infection) occurred while on ACDUTRA, I would think that I am eligible for VA benefits for this disease.
  8. Yeah, that's what I'm thinking as well. I've been trying to get ahold of my DAV rep for 2 weeks to see what he thinks, but have been unsuccessful so far. Keep me posted on how it goes with your friend's claim, if you wouldn't mind.
  9. Thanks Vync - I agree with you. Everything I've read said that for Active Duty or Active Duty for Training, it can be an injury or an illness. If it's Inactive Duty for Training, then it must be an injury. If that's correct, then would this be considered a Clear and Unmistakenable Error (CUE), since they applied the eligibility rule incorrectly?
  10. Hey ArNG11 - Yup, I have lots of medical treatment records that the VA already has. The VA doctor at my C&P exam put in the notes that the fungal infection developed at the Army Mountain Warfare School. I was there under title 32 USC 502 orders. It seems everyone agrees that I have the rash and that it developed there, but that i'm not elligible because it is not an injury.
  11. Hey ArNG11 - You're correct, it was several weeks long. I was seen by combat medic and medic in charge multiple times, as the rash was all over my back, butt, torso, chest, and arms. They did not know what it was, so they prescribed me benadryl and some type of anti-itch cream. Then back home, I saw my general practioner and Dermatologist every other month and tried prescription creams, soaps, and oral anti-fungal medicines. At one point, it looked like it was going away, but it came back. The VA doesn't deny that I have it, or that I got it from the Army Mountain Warfare School. Their denial is based on the fact that it is not considered an injury. The quote of their denial is as follows: “VA Regulations document that Active Duty For Training does not qualify as active duty for VA benefits unless a person disabled or dies from an injury incurred or aggravated in the line of duty or has a cardiac arrest or stroke. As the rash is not due to an injury in the line of duty, it is not subject to service connection.” However, my research shows that Active Duty For Training allows for either an injury OR an illness in the line of duty. Their denial reasoning seems like it should actually be for Inactive Duty For Training so I think that the incorrectly applied the eligibility rule.
  12. When I enlisted and went through MEPS, I was 100% good to go. The fungal infection didn't start until I went to the Army Mountain Warfare School.
  13. Hey ArNG11. I do have copies of my orders. They state that under the authority of 32 USC 502, I was supposed to report to the Army Mountain Warfare School from June 1 to June 15. It's even listed on the one letter that you can download from E-Benefits as active duty time. I understand that for Inactive Duty for Training, there has to be an injury in order to be elligible, but for Active Duty for Training, it says injury OR disease. What are your thoughts?
  14. Great! Thanks Vync. This is a great start! I hope we hear from someone who has successfully dealt with this first hand.
  15. Good Morning Everyone. I'm a SSG with the Army National Guard. I'm currently 40% SC for 2 bad shoulders. I went to Vermont in June a few years ago for 15 days for the Summer Mountain Warfare School under authority of 32 USC 502, which should be classified as 'Active Duty For Training' (ADT). I developed a rash (Tinea Versicolor, which is a fungal infection of the skin) after the first week that I was there. It covers probably 50% of my body, is very itchy, and doesn't look very appealing. I've had many, many treatments which haven't cure it yet. Anyways, my claim was denied because (statement from VA) “VA Regulations document that Active Duty For Training does not qualify as active duty for VA benefits unless a person disabled or dies from an injury incurred or aggravated in the line of duty or has a cardiac arrest or stroke. As the rash is not due to an injury in the line of duty, it is not subject to service connection.” However, according my research, (from M21-1MR, Part III, Subpart ii, Chapter 6) “Active service” includes · active duty, or · any period of active duty for training during which a person is disabled or dies from - a disease or injury incurred or aggravated in the line of duty, or - an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident while proceeding directly to, or returning directly from, a period of active duty for training, or · any period of inactive duty training during which a person is disabled or dies from an - injury incurred or aggravated in the line of duty, or - acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training or while proceeding directly to, or returning directly from, such training. It seems to me that they applied the rule incorrectly in my case, since it was Active Duty For Training, which includes a disease incurred in the line of duty, not just an injury. Does anybody have any experience or expertise regarding a claim for a disease incurred on ADT? Also, is annual training with the national guard considered ADT for IDT? Thanks!
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