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Third Class Petty Officers
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Everything posted by ROMAD

  1. When I discharged from active duty. I claimed shoulder pain in my 1st claim. The C&P Examiner stated I had arthralgia both shoulder on the exam. The rating decision said I was not service connected for shoulder pain. My question is if you have an examiner say you have bilateral arthralgia at 0% within 1 year of separating should that be service connected at 0%? Is this a CUE item or would I have to have a current diagnosis higher than 10%
  2. Ok here is the issue. I filed a CUE on my Decision from 1993 because I was rated improperly based on the laws at the time. I submitted the letter explaining the error and noted in my records what the error was. So my CVSO looked at the Decision today and it was denied and they show in the Evidence section The MEB decision from the USAF as well as the Rating decision from 1993 and The General Medical Exam (C&P Exam). So they say the considered the evidence but it is in black and white in all those documents that I meet the requirements for the higher level. Additionally one other bar is being employed at the time of the exam, and the higher level of disability requires productive of severe economic inadaptability. The Court has stated on numerous occasions that severe economic inadaptability does not mean unemployed or unemployable as that is what IU ratings are for. How can I spell it out any clearer that stating exactly where in my documents it states I meet the requirements for 50% versus 30%? I was later rated at 50% but from 1993 to 2006 it should have been the higher level. Can you CUE a CUE? Do you request a Higher Level Review? What is the next step. And here is the 1993 Decision Letter and The C&P Exam
  3. Thank you Berta, I will look for your answers tomorrow. The CVSO said since he never sent in the claim it is a no go. He said had he sent it she could continue it. Not sure I believe that but He is the expert (ha) I have his medical records but did not see an adverse anything. Also there is no EKG print out that I saw. I scanned in all his records 190 pages from july thru the follow up Dr. Appt. Berta, will the statement the Dr. made to the widow have any bearing on proving an event happened? he said it to two people so I would assume there should be some documentation. Also I did not see any details about the anesthesia. The notes from the Anesthesiologist do not mention how much or anything. Is that normal? I don't want to see he get railroaded.
  4. Yes, very helpful. So the procedure was at a VA hospital, so there is one hurdle out of the way. He was not service connected for the heart, just some joint issues, and asthma. He was diagnosed for OSA, but did not have a chance to complete the claim for OSA secondary to Asthma. He has an intent to file still open but my understanding is that is a "no go" because the spouse can only continue that, if he had submitted the actual claim. Yea I know the payments would not be made for the 100%, but dying while rated 100% service connected vs 60% non service connected would make a difference. He had surgery on Nov 12 (had the cardiac arrest), and died Nov 22 of cardiac arrest.
  5. So here is my question, I should start with asking what Form does a Widow use to file an 1151 claim. I know Berta has mentioned she had to use a different form that I did for a claim. And here is the 2nd part. A veteran goes in for a robotic procedure that's expected to take 3 hrs but it takes 6. Not a big deal, but when the Dr. comes out he tells the spouse and adult daughter that the Veterans heart stopped during the procedure (not related to the heart), but now everything is OK. Procedure went well. 10 days later the Veteran dies of Cardiac Arrest. So here is my question. Can the widow file an 1151 for the Cardiac Arrest that the Dr. told her occurred during the surgery? Can she and the adult daughter write a lay statement of what the Dr. told her happened? The reason this is important to get on the record and have it rated is because 10 days later as I mentioned he died from Cardiac Arrest. So If you are rated at 100% after having a heart attack, he would have died while being 100% disabled. Additionally he would have died as a result of the new service connected condition created during the surgery. Is this how the process should be documented? Thanks for the help.
  6. I did include a cover sheet with the total pages, but they separated the 0996 form, and the continuation sheet which was plain word document with all the facts and citations (They labelled this correspondence) and the medical records highlighted and underlined are separate and labelled Correspondence, nothing is in order like I submitted. I included copies of the records where they claimed I had not been seen for a condition. I did this for service treatment as well as VAMC files.... EXTREMELY FRUSTRATING.
  7. Just a question I am trying to get an answer to. I am working with a widow of a Vet that went in for Prostatectomy at the VA hospital. During the surgery he suffered Cardiac Arrest. He recovered from that and 10 days later died of Cardiac Arrest. Would this be a valid approach to filing an 1151? The doctor came out after the surgery and told the wife the reason the surgery took twice as long was because he was a big man and it took longer than normal. This is also the point he mentioned to the wife and adult daughter that his heart stopped. If this was due to the surgery, would that make his death service connected?
  8. I submitted a fully developed packet and Faxed it to the intake center with 20 plus pages. My VSO looked today and it seems they have separated the packet and it no longer makes sense. I included copies of service treatment, and VA medical records with text highlighted and underlined but they are now labeled as individual documents with the title correspondence. How can they possibly get things right if they don't leave the evidence with the form you send in... or at least label the attachments so they can be referenced from the main application. How do I get this fixed.
  9. Berta that is correct! I just returned from the Milwaukee VARO and the customer service person did confirm the 21-526EZ is the form you should submit a CUE on. Since I had already submitted my letter and all the attached copies of the specific examples from my records, just made a note on the 526 to see Documents FAxed on 12/20/2019. So the answer is do your leg work and compile your letter explaining your CUE with specific examples of the errors and what regulation or law was not followed, as well as any documentation specific to your allegation. The one thing I will take away from this is many of the Service org reps (that I have dealt with) do not get into the citing the specific regs. The VSO today that uploaded my 526 was suprised at the level of documentation with citations I submitted. I give credit to all you folks here on Hadit! Thanks for the help and now we wait to see how this all turns out.
  10. @vync I submitted a HLR also a few weeks ago and that caused some confusion as well. I listed all the items I had an issue with under the ISSUES section and they sent me a letter asking about the Decisions associated with each issue I raised. I explained they were not individual Decisions but issues with the actual decision. I was amazed they do not read the form because it was pretty clear with an attachment going into details.
  11. I am heading to the Milwaukee Regional office tomorrow morning with a 2148 in my back pocket, but I am going to ask why no action has been taken on my letter which clearly states CUE to the Milwaukee Regional Office.
  12. Yup! That's exactly what I though prior to my call. I was sure they would reply but she said it was just sitting there because I did not have a form to initiate action. Here is what I submitted:
  13. I called the 800 number today to ask about the status of my CUE submission. I spoke with Gayle and she told me unless I submit a form the letter I wrote would just sit in my file with no action. She told me to submit a 21-4138 "Statement in Support of Claim" and reference the documents I sent in for the CUE. So she did say the letter I sent was in my file, and confirmed they received it, but she explained that many Vets will send in documents they want in their file, but if you do not submit a form there will be no action. Does that sound right??? I know I looked all over the forum to see if there was a standard form and did not see any suggestions for a particular form. So is this a new procedure, or did I miss where someone posted the Form for submitting a CUE. So I guess I am heading to the regional office tomorrow to submit a form. LOL
  14. Great, yea it is a sleep apnea OSA claim because I separated in 1993 and it did not get added to the list until 1996. Thanks for the info.
  15. Ok. here is a question. If you are filing a claim for a disability that was not commonly recognized while you were on Active Duty, and was not in 38 CFR until 4 years after you separated, how do you address that statement in the decision "No mention of ____________ in Service treatment Records" Is there a standard statement people use to address this? Is there case law that addresses this? Thanks in advance.
  16. This is a great education in how to advocate for yourself. I recently submitted an HLR, Supplemental Claim and a CUE based on the concepts you have in your HLR. It looks like it is estimated to take 4-5 months, but it is worth the effort to correct the record and receive the service connection that was denied, and apply the proper rating for an old claim (earlier effective date). Great job, keep us in the loop on your progress.
  17. Thank you for replying Berta... Was he being treated continuously by the VA? Yes all his healthcare was done at the VA Had he ever been diagnosed with heart disease? Do not believe so she is bringing his med records tomorrow Did he have a claim pending when he died? He filed an intent to file so she will be able to continue that Did he have an asthma attack just prior to his death? he just collapsed lost consciousness she got him to wake up it happened again and she called 911 If his medical care was from the VA I am sure they did an ECHO or at least an EKG prior to the surgery. I am not sure if they did or not will know more tomorrow The surviving spouse would need to get a copy of all of his VA medical records, and will need an IMO, if she feels the VA caused his death. That's what I was thinking Was his service connected asthma listed on the death certificate as a contributing cause? They did not want to do an autopsy because it was natural causes. It was listed as "Probable Myocardial Infarction" What type of medication was he on for the asthma? Was it an inhaler? I will know tomorrow. She said they told him to stop taking his medicine a few days before the procedure and then told him he could restart when he checked out of the hospital a few days later. Thanks again for your input
  18. I have a question about determining if an error occurred. I have a friend who recently went into the VA hospital to have his prostate removed (cancer). 9 days later he went to follow up appt. and the following day he passed away at home. The ambulance was called and he never regained consciousness and was taken to a civilian hospital. The hospital said they do not do autopsy's for death by natural causes. I guess I never really thought that a 50 year old dying after a surgery would be considered natural causes. The death certificate listed cause of death "Probable myocardial infarction". If the county is not willing to do an autopsy how do you make sure the VA did nothing wrong? They do not make it easy to find out if everything went the way it was suppose to. His wife is left to figure this all out so any info or suggestions would be appreciated. He was 60% service connected: Exercise induced Asthma, and some join issues from a collapsed parachute on active duty. Should he have been at 100% post surgery or is that only for service connected disabilities surgeries. He was also a Gulf War Veteran (Desert Storm). Thanks in advance for any info.
  19. Yea I should have mentioned it is in the CFR. In the rating decision, my MEB that put me out of the AF , and in my service treatment records they all mention: nose becomes stuffed, nostril is stuffy, right nose becomes stuffed, etc. They just never use the medical term. And yes it is severe it last as long as several hours and can continue off and on for months at a time. It coincides with the headaches. They are not painful, I just cant breath through my nose. And at night when I use my cpap it is especially annoying. So extensive records of the "symptom" does not necessarily require the VA to maximize the claim via a duty to infer since it is clearly noted in my records, just with a different term.
  20. Thanks for the response Berta, is that very likely they did not know the proper name for a symptom? I know it is in the rating guide, and the symptom is very prominent through out my STR and appears at least 10 times and always related to my Cluster Headaches. I would hate to think they were not that bright... just because it took me 15 years to learn the name, but I'm not a Doctor
  21. Ok here is a question for all of you that are smarter than me. I have a 50% SCD for Cluster Headaches. One of the major symptoms is my right nostril closes completely during the attacks. This is well documented in my STR's as well as all VA Records. These symptoms have occurred since 1983. Here is the question recently I was asked why the VA never rated my Vasomotor Rhinitis? I did not have an answer other than I did not know it had a name. Should this have been something they rated under a duty to infer or duty to assist? How do I go back and have it rated from when my Cluster Headaches were rated? They never used the term Vasomotor Rhinitis but it was clear in my records what was happening. So CUE? Is it my fault? Inquiring mind wants to know.
  22. I will check with the VA and see if I can get the results and actual x-rays because I believe you are right and I should have someone review them. I still get pain when I move my shoulder over head and there is some grinding but I have not had the VA do anything I just assumed I had to live with it. As I get older I am beginning to realize there is no reason to just live with it. It is frustrating because I noted the condition within the 1 year mark but I guess since it is less than 10% disabling they said it was not service connected... that did not make sense to me. seems they would have just said Service connected but at 0 percent. VA logic still confuses me sometimes.
  23. Berta, as far as the shoulders go I claimed the shoulders within that year after separating from Active Duty. I have nothing in my Service Med records because I did not go to sick call for it because I would have been disqualified for my job. But it was my understanding that I had a year to file a claim and it would still be "service connected" They took x-rays but I never heard anything else after the x-rays just that I had arthralgia in both shoulders and it was not service connected. So I guess my question is, if I have a shoulder issue and claim it within a year would that not be service connected regardless of if it is 0 percent or 30 percent. It seems they acknowledged the condition but did not service connect it.
  24. I am rated 50 percent and have been since 2006. I had not noticed that I met the requirements even when I was MED Boarded out of the AF. I was wondering if I should have had that rating beginning in 1993 since nothing changed between 1993 and 2006. So I had prostrating attacks lasting for hours and continuing for months at a time. But in your youth (or my youth) it did not occur to me that I should have been rated higher at the time. I am in the process of filing a claim for sleep apnea and I was asked by the VSO why I was not rated higher when I got out since I met the requirements and I did not have an answer. So I was just looking for another set of eyes to see if I should or am eligible for CUE because they did not rate me properly in 1993, so just from 93 to 2006.
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