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Jay Johnson
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Posts posted by Jay Johnson
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Alex,
I think you're missing the point here. SOs do help vets win cases, but they do not help vets become less dependent on SOs by fixing the system. As it stands now, veterans have NO national voice to speak of accept SO's and these So's will not take a national public stand against the VA (never have, never will). This isn't an issue of "ify" claims or weak evidence...it's an issue of VAROs grossly violating regulations and getting away with it EVERY time because the SOs won't hold them accountable.
Again, who cares if YOU or I win our claims if a thousand other vets loose or quit out of frustration for claims that should clearly be won? What do we gain as a nation of disabled vets if we keep having to fight one battle at a time? If these SO's won't stand up for us for the big issues, then who is supposed to?
I say boycott the SO's until they truly decide to help vets and not just string them along, status quo, one at a time.
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jstacy,
The #1 reason why so many vets suffer is that there is no recourse for ROs if they do not follow congressional regualtions (title 38). The easiest and quickest fix to this problem would be to allow veterans to sue the ROs when they ignore regulations. The only thing that people care about in this nation is money and teh VA would go broke in a week if it had to answer for its crimes.
As far as SO's are concerned - They make a living by helping vets one case at a time...if they were to fix the system rather then string along vets one by one, they would be out of a job. If the DAV/AmVets/etc would stand up to the VA nationally and bring these problems to the public the VA would change over night (not holding my breath).
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Putting you through the hoops in order to establish a claim (SC) is almost to be expected...what bothers me are the RO's that put you through those same hoops for reevaluations. The regs clearly state that the VA's job in reevaluating a claim is NOT to make the veteran prove that he or she still deserves their current rating; rather, they are only supposed to act if any new evidence shows material improvements.
The minute an RO start fishing for information on a reevaluation is the minute that the SO (or lawyer) representing the veteran needs to file a law suite (or refuses future examinations). In reevaluations the veteran must only prove that he or she has not made any signifcant material improvements...if a C&P does not show any of these improvements then the process is over. If the RO asks for more they are in violation of title 38 (not that any SO will ever even attempt to enforce regulations... that might put them out of job...IE - give a man a fish and he eats for a day, teach a man to fish and he eats for a lifetime..in the SO world it's "here's your fish, now get out").
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It really depends on the doctor. I have had a horrible time finding doctors that will accept any form of government insurance, but others on hadit have said they have had no issues at all....IMO, it depends on where you live and what type of insurance the doctors normally accept (IE - a doctor who openly accepts medicare/tricare is more likely to accept your fee basis then one who refuses government insurance).
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Spyware is a HUGE pain...the suggestions by Dataman are exactly what I would have suggested as well, but even those anit-spyware programs won't always catch all of the components of a newer trojan. I have had to wipe my HD twice due to spyware despite being quite good at getting rid of it. These programs hide deep in your registry and are designed to evade anti-spyware and deletion....In the past I have had to boot in safe mode and hand search for every file related to a trojan, which has taken me many hours.
The long and short of spyware is that you cannot avoid it, no matter what firewall or virus protection programs you have..the best you can hope for is to catch the big ones before they infect everything.
P.S. - To add to Dataman's list I would do a google for "hijackthis" (one word) and download it....it is very good at finding running processes that make it so you can't delete spyware files.
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B + ) = smiley face...it's best to disable emotes before posting IMO.
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My smiley are not doing well today???Thanks for the response. Joe induction physical showed scar on lft knee, surgery for football injury, Then took him with no profile. Then he went to Jump School and hurt that knee and was dropped from Jump School. 20 yrs. military combat MOS. Running with combat boots, remember when they did not give you tennis shoes? etc. Right knee acting up in military, in SMR's.
Denied constantly since retirement!! l990.
CUE for ignoring
evidence in file ?
Thanks for the regs. will read and get back. Brenda
I think this reg. - >>>§ 3.306 Aggravation of preservice disability.
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(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.<<< is your best bet...if he was well enough to be admitted to jump school, but, due to jumping, was not able to finish, the VA would be hard pressed to deny the claim for aggravation. Also, I would argue that the condition is seperate from the football injury all together unless there is medical evidence to suggest that the current condition is a direct result of of prior injury (this is where reasonable doubt comes in).
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Need to NOD ask for DRO. Been denying Joe'
s knees for years. Left knee no cartilage on entrance exam. Took him!! Sent him to VN. He was put on profile many times during the 20 yrs of Army. In fact, SMR's show he hurt his left knee in Airborne Training and got him thrown out of this School.
VA saying "service didn't make it any worse than it would have been!"
Been denying it since l990, when he retired.
Recent MRI show Left, severe, Right moderate to Severe. Deg Arthritis, Pain,Right knee compensates for left and right knee is also in his SMR's!!
He does not plan on getting the recommended Replacement for a while as he is only 56.
I need to feed it back to them.
1. I need the reg "VA must prove that it was not aggravated by Service!
2. Benefit of the Doubt rule
3. Been denied, so only possible EED is CUE, correct?
THANKS< Brenda
So, what reason did they give as a possible cause of the problem? He had to have an intial physical before entering the military that shows healthy knees, so they have to show a cause before they can claim it wasn't aggravated by service. As for the regs in question -
§ 3.102 Reasonable doubt.
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It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships.
>>>This next one is long, but there are several points throughout that could help the case<<<<
§ 3.303 Principles relating to service connection.
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(a) General. 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.
(b) Chronicity and continuity. 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 clearcut 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.
© Preservice disabilities noted in service. There are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. Consequently with notation or discovery during service of such residual conditions (scars; fibrosis of the lungs; atrophies following disease of the central or peripheral nervous system; healed fractures; absent, displaced or resected parts of organs; supernumerary parts; congenital malformations or hemorrhoidal tags or tabs, etc.) with no evidence of the pertinent antecedent active disease or injury during service the conclusion must be that they preexisted service. Similarly, manifestation of lesions or symptoms of chronic disease from date of enlistment, or so close thereto that the disease could not have originated in so short a period will establish preservice existence thereof. Conditions of an infectious nature are to be considered with regard to the circumstances of the infection and if manifested in less than the respective incubation periods after reporting for duty, they will be held to have preexisted service. In the field of mental disorders, personality disorders which are 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, will be accepted as showing preservice origin. Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation.
(d) Postservice initial diagnosis of disease. 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.
[26 FR 1579, Feb. 24, 1961]
§ 3.304 Direct service connection; wartime and peacetime.
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(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.
(b) 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. Only such conditions as are recorded in examination reports are to be considered as noted.
(Authority: 38 U.S.C. 1111)
(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) Signed statements of veterans relating to the origin, or incurrence of any disease or injury made in service if against his or her own interest is of no force and effect if other data do not establish the fact. Other evidence will be considered as though such statement were not of record.
(Authority: 10 U.S.C. 1219)
© Development. The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination. In initially rating disability of record at the time of discharge, the records of the service department, including the reports of examination at enlistment and the clinical records during service, will ordinarily suffice. Rating of combat injuries or other conditions which obviously had their inception in service may be accomplished pending receipt of copy of the examination at enlistment and all other service records.
(d) Combat. Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation.
(Authority: 38 U.S.C. 1154(b))
(e) Prisoners of war. Where disability compensation is claimed by a former prisoner of war, omission of history or findings from clinical records made upon repatriation is not determinative of service connection, particularly if evidence of comrades in support of the incurrence of the disability during confinement is available. Special attention will be given to any disability first reported after discharge, especially if poorly defined and not obviously of intercurrent origin. The circumstances attendant upon the individual veteran's confinement and the duration thereof will be associated with pertinent medical principles in determining whether disability manifested subsequent to service is etiologically related to the prisoner of war experience.
(f) Post-traumatic stress disorder. Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with §4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. Although service connection may be established based on other in-service stressors, the following provisions apply for specified in-service stressors as set forth below:
(1) If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.
(2) If the evidence establishes that the veteran was a prisoner-of-war under the provisions of §3.1(y) of this part and the claimed stressor is related to that prisoner-of-war experience, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.
(3) If a post-traumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a post-traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred.
(Authority: 38 U.S.C. 501(a), 1154)
[26 FR 1580, Feb. 24, 1961, as amended at 31 FR 4680, Mar. 19, 1966; 39 FR 34530, Sept. 26, 1974; 58 FR 29110, May 19, 1993; 64 FR 32808, June 18, 1999; 67 FR 10332, Mar. 7, 2002]
§ 3.305 Direct service connection; peacetime service before January 1, 1947.
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(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 other than in a period of war before January 1, 1947.
(b) Presumption of soundness. A peacetime veteran who has had active, continuous service of 6 months or more 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 the time thereof, or where evidence or medical judgment, as distinguished from medical fact and principles, establishes that an injury or disease preexisted service. Any evidence acceptable as competent to indicate the time of existence or inception of the condition may be considered. Determinations based on medical judgment will take cognizance of the time of inception or manifestation of disease or injury following entrance into service, as shown by proper service authorities in service records, entries or reports. Such records will be accorded reasonable weight in consideration of other evidence and sound medical reasoning. Opinions may be solicited from Department of Veterans Affairs medical authorities when considered necessary.
© Campaigns and expeditions. In considering claims of veterans who engaged in combat during campaigns or expeditions satisfactory lay or other evidence of incurrence or aggravation in such combat of an injury or disease, if consistent with the circumstances, conditions or hardships of such service will be accepted as sufficient proof of service connection, even when there is no official record of incurrence or aggravation. Service connection for such injury or disease may be rebutted by clear and convincing evidence to the contrary.
[26 FR 1580, Feb. 24, 1961, as amended at 28 FR 3088, Mar. 29, 1963; 39 FR 34530, Sept. 26, 1974]
§ 3.306 Aggravation of preservice disability.
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(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.
(Authority: 38 U.S.C. 1154)
© Peacetime service prior to December 7, 1941. The specific finding requirement that an increase in disability is due to the natural progress of the condition will be met when the available evidence of a nature generally acceptable as competent shows that the increase in severity of a disease or injury or acceleration in progress was that normally to be expected by reason of the inherent character of the condition, aside from any extraneous or contributing cause or influence peculiar to military service. Consideration will be given to the circumstances, conditions, and hardships of service.
[26 FR 1580, Feb. 24, 1961, as amended at 57 FR 59296, Dec. 15, 1992]
§ 3.307 Presumptive service connection for chronic, tropical or prisoner-of-war related disease, or disease associated with exposure to certain herbicide agents; wartime and service on or after January 1, 1947.
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(a) General. A chronic, tropical, prisoner of war related disease, or a disease associated with exposure to certain herbicide agents listed in §3.309 will be considered to have been incurred in or aggravated by service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. No condition other than one listed in §3.309(a) will be considered chronic.
(1) Service. The veteran must have served 90 days or more during a war period or after December 31, 1946. The requirement of 90 days' service means active, continuous service within or extending into or beyond a war period, or which began before and extended beyond December 31, 1946, or began after that date. Any period of service is sufficient for the purpose of establishing the presumptive service connection of a specified disease under the conditions listed in §3.309© and (e).
(2) Separation from service. For the purpose of paragraph (a)(3) and (4) of this section the date of separation from wartime service will be the date of discharge or release during a war period, or if service continued after the war, the end of the war period. In claims based on service on or after January 1, 1947, the date of separation will be the date of discharge or release from the period of service on which the claim is based.
(3) Chronic disease. The disease must have become manifest to a degree of 10 percent or more within 1 year (for Hansen's disease (leprosy) and tuberculosis, within 3 years; multiple sclerosis, within 7 years) from the date of separation from service as specified in paragraph (a)(2) of this section.
(4) Tropical disease. The disease must have become manifest to a degree of 10 percent or more within 1 year from date of separation from service as specified in paragraph (a)(2) of this section, or at a time when standard accepted treatises indicate that the incubation period commenced during such service. The resultant disorders or diseases originating because of therapy administered in connection with a tropical disease or as a preventative may also be service connected.
(Authority: 38 U.S.C. 1112)
(5) Diseases specific as to former prisoners of war. The diseases listed in §3.309© shall have become manifest to a degree of 10 percent or more at any time after discharge or release from active service.
(Authority: 38 U.S.C. 1112)
(6) Diseases associated with exposure to certain herbicide agents. (i) For the purposes of this section, the term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4–D; 2,4,5–T and its contaminant TCDD; cacodylic acid; and picloram.
(Authority: 38 U.S.C. 1116(a)(4))
(ii) The diseases listed at §3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service.
(iii) A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.
(Authority: 38 U.S.C. 501(a) and 1116(a)(3))
(b) Evidentiary basis. The factual basis may be established by medical evidence, competent lay evidence or both. Medical evidence should set forth the physical findings and symptomatology elicited by examination within the applicable period. Lay evidence should describe the material and relevant facts as to the veteran's disability observed within such period, not merely conclusions based upon opinion. The chronicity and continuity factors outlined in §3.303(b) will be considered. The diseases listed in §3.309(a) will be accepted as chronic, even though diagnosed as acute because of insidious inception and chronic development, except: (1) Where they result from intercurrent causes, for example, cerebral hemorrhage due to injury, or active nephritis or acute endocarditis due to intercurrent infection (with or without identification of the pathogenic micro-organism); or (2) where a disease is the result of drug ingestion or a complication of some other condition not related to service. Thus, leukemia will be accepted as a chronic disease whether diagnosed as acute or chronic. Unless the clinical picture is clear otherwise, consideration will be given as to whether an acute condition is an exacerbation of a chronic disease.
(Authority: 38 U.S.C. 1112)
© Prohibition of certain presumptions. No presumptions may be invoked on the basis of advancement of the disease when first definitely diagnosed for the purpose of showing its existence to a degree of 10 percent within the applicable period. This will not be interpreted as requiring that the disease be diagnosed in the presumptive period, but only that there be then shown by acceptable medical or lay evidence characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. Symptomatology shown in the prescribed period may have no particular significance when first observed, but in the light of subsequent developments it may gain considerable significance. Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations within the period, should be developed to determine whether there was symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree.
(d) Rebuttal of service incurrence or aggravation. (1) Evidence which may be considered in rebuttal of service incurrence of a disease listed in §3.309 will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. The expression “affirmative evidence to the contrary” will not be taken to require a conclusive showing, but such showing as would, in sound medical reasoning and in the consideration of all evidence of record, support a conclusion that the disease was not incurred in service. As to tropical diseases the fact that the veteran had no service in a locality having a high incidence of the disease may be considered as evidence to rebut the presumption, as may residence during the period in question in a region where the particular disease is endemic. The known incubation periods of tropical diseases should be used as a factor in rebuttal of presumptive service connection as showing inception before or after service.
(2) The presumption of aggravation provided in this section may be rebutted by affirmative evidence that the preexisting condition was not aggravated by service, which may include affirmative evidence that any increase in disability was due to an intercurrent disease or injury suffered after separation from service or evidence sufficient, under §3.306 of this part, to show that the increase in disability was due to the natural progress of the preexisting condition.
(Authority: 38 U.S.C 1113 and 1153)
[26 FR 1581, Feb. 24, 1961, as amended at 35 FR 18281, Dec. 1, 1970; 39 FR 34530, Sept. 26, 1974; 43 FR 45347, Oct. 2, 1978; 47 FR 11655, Mar. 18, 1982; 58 FR 29109, May 19, 1993; 59 FR 5106, Feb. 3, 1994; 59 FR 29724, June 9, 1994; 61 FR 57588, Nov 7, 1996; 62 FR 35422, July 1, 1997; 67 FR 67793, Nov. 7, 2002; 68 FR 34541, June 10, 2003]
§ 3.308 Presumptive service connection; peacetime service before January 1, 1947.
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(a) Chronic disease. There is no provision for presumptive service connection for chronic disease as distinguished from tropical diseases referred to in paragraph (b) of this section based on peacetime service before January 1, 1947.
(b) Tropical disease. In claims based on peacetime service before January 1, 1947, a veteran of 6 months or more service who contracts a tropical disease listed in §3.309(b) or a resultant disorder or disease originating because of therapy administered in connection with a tropical disease or as a preventative, will be considered to have incurred such disability in service when it is shown to exist to the degree of 10 percent or more within 1 year after separation from active service, or at a time when standard and accepted treatises indicate that the incubation period commenced during active service unless shown by clear and unmistakable evidence not to have been of service origin. The requirement of 6 months or more service means active, continuous service, during one or more enlistment periods.
(Authority: 38 U.S.C. 1133)
[39 FR 34530, Sept. 26, 1974]
§ 3.309 Disease subject to presumptive service connection.
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(a) Chronic diseases. The following diseases shall be granted service connection although not otherwise established as incurred in or aggravated by service if manifested to a compensable degree within the applicable time limits under §3.307 following service in a period of war or following peacetime service on or after January 1, 1947, provided the rebuttable presumption provisions of §3.307 are also satisfied.
Anemia, primary.
Arteriosclerosis.
Arthritis.
Atrophy, progressive muscular.
Brain hemorrhage.
Brain thrombosis.
Bronchiectasis.
Calculi of the kidney, bladder, or gallbladder.
Cardiovascular-renal disease, including hypertension. (This term applies to combination involvement of the type of arteriosclerosis, nephritis, and organic heart disease, and since hypertension is an early symptom long preceding the development of those diseases in their more obvious forms, a disabling hypertension within the 1-year period will be given the same benefit of service connection as any of the chronic diseases listed.)
Cirrhosis of the liver.
Coccidioidomycosis.
Diabetes mellitus.
Encephalitis lethargica residuals.
Endocarditis. (This term covers all forms of valvular heart disease.)
Endocrinopathies.
Epilepsies.
Hansen's disease.
Hodgkin's disease.
Leukemia.
Lupus erythematosus, systemic.
Myasthenia gravis.
Myelitis.
Myocarditis.
Nephritis.
Other organic diseases of the nervous system.
Osteitis deformans (Paget's disease).
Osteomalacia.
Palsy, bulbar.
Paralysis agitans.
Psychoses.
Purpura idiopathic, hemorrhagic.
Raynaud's disease.
Sarcoidosis.
Scleroderma.
Sclerosis, amyotrophic lateral.
Sclerosis, multiple.
Syringomyelia.
Thromboangiitis obliterans (Buerger's disease).
Tuberculosis, active.
Tumors, malignant, or of the brain or spinal cord or peripheral nerves.
Ulcers, peptic (gastric or duodenal) (A proper diagnosis of gastric or duodenal ulcer (peptic ulcer) is to be considered established if it represents a medically sound interpretation of sufficient clinical findings warranting such diagnosis and provides an adequate basis for a differential diagnosis from other conditions with like symptomatology; in short, where the preponderance of evidence indicates gastric or duodenal ulcer (peptic ulcer). Whenever possible, of course, laboratory findings should be used in corroboration of the clinical data.
(b) Tropical diseases. The following diseases shall be granted service connection as a result of tropical service, although not otherwise established as incurred in service if manifested to a compensable degree within the applicable time limits under §3.307 or §3.308 following service in a period of war or following peacetime service, provided the rebuttable presumption provisions of §3.307 are also satisfied.
Amebiasis.
Blackwater fever.
Cholera.
Dracontiasis.
Dysentery.
Filariasis.
Leishmaniasis, including kala-azar.
Loiasis.
Malaria.
Onchocerciasis.
Oroya fever.
Pinta.
Plague.
Schistosomiasis.
Yaws.
Yellow fever.
Resultant disorders or diseases originating because of therapy administered in connection with such diseases or as a preventative thereof.
© Diseases specific as to former prisoners of war. (1) If a veteran is a former prisoner of war, the following diseases shall be service connected if manifest to a degree of disability of 10 percent or more at any time after discharge or release from active military, naval, or air service even though there is no record of such disease during service, provided the rebuttable presumption provisions of §3.307 are also satisfied.
Psychosis.
Any of the anxiety states.
Dysthymic disorder (or depressive neurosis).
Organic residuals of frostbite, if it is determined that the veteran was interned in climatic conditions consistent with the occurrence of frostbite.
Post-traumatic osteoarthritis.
Atherosclerotic heart disease or hypertensive vascular disease (including hypertensive heart disease) and their complications (including myocardial infarction, congestive heart failure, arrhythmia).
Stroke and its complications.
(2) If the veteran:
(i) Is a former prisoner of war and;
(ii) Was interned or detained for not less than 30 days, the following diseases shall be service connected if manifest to a degree of 10 percent or more at any time after discharge or release from active military, naval, or air service even though there is no record of such disease during service, provided the rebuttable presumption provisions of §3.307 are also satisfied.
Avitaminosis.
Beriberi (including beriberi heart disease).
Chronic dysentery.
Helminthiasis.
Malnutrition (including optic atrophy associated with malnutrition).
Pellagra.
Any other nutritional deficiency.
Irritable bowel syndrome.
Peptic ulcer disease.
Peripheral neuropathy except where directly related to infectious causes.
Cirrhosis of the liver.
(Authority:
38 U.S.C. 1112(b))
(d) Diseases specific to radiation-exposed veterans. (1) The diseases listed in paragraph (d)(2) of this section shall be service-connected if they become manifest in a radiation-exposed veteran as defined in paragraph (d)(3) of this section, provided the rebuttable presumption provisions of §3.307 of this part are also satisfied.
(2) The diseases referred to in paragraph (d)(1) of this section are the following:
(i) Leukemia (other than chronic lymphocytic leukemia).
(ii) Cancer of the thyroid.
(iii) Cancer of the breast.
(iv) Cancer of the pharynx.
(v) Cancer of the esophagus.
(vi) Cancer of the stomach.
(vii) Cancer of the small intestine.
(viii) Cancer of the pancreas.
(ix) Multiple myeloma.
(x) Lymphomas (except Hodgkin's disease).
(xi) Cancer of the bile ducts.
(xii) Cancer of the gall bladder.
(xiii) Primary liver cancer (except if cirrhosis or hepatitis B is indicated).
(xiv) Cancer of the salivary gland.
(xv) Cancer of the urinary tract.
(xvi) Bronchiolo-alveolar carcinoma.
(xvii) Cancer of the bone.
(xviii) Cancer of the brain.
(xix) Cancer of the colon.
(xx) Cancer of the lung.
(xxi) Cancer of the ovary.
Note: For the purposes of this section, the term “urinary tract” means the kidneys, renal pelves, ureters, urinary bladder, and urethra.
(Authority: 38 U.S.C. 1112©(2)).
(3) For purposes of this section:
(i) The term radiation-exposed veteran means either a veteran who while serving on active duty, or an individual who while a member of a reserve component of the Armed Forces during a period of active duty for training or inactive duty training, participated in a radiation-risk activity.
(ii) The term radiation-risk activity means:
(A) Onsite participation in a test involving the atmospheric detonation of a nuclear device.
(B) The occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946.
© Internment as a prisoner of war in Japan (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupation forces in Hiroshima or Nagasaki, Japan, during the period beginning on August 6, 1945, and ending on July 1, 1946.
(D)(1) Service in which the service member was, as part of his or her official military duties, present during a total of at least 250 days before February 1, 1992, on the grounds of a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or the area identified as K25 at Oak Ridge, Tennessee, if, during such service the veteran:
(i) Was monitored for each of the 250 days of such service through the use of dosimetry badges for exposure at the plant of the external parts of veteran's body to radiation; or
(ii) Served for each of the 250 days of such service in a position that had exposures comparable to a job that is or was monitored through the use of dosimetry badges; or
(2) Service before January 1, 1974, on Amchitka Island, Alaska, if, during such service, the veteran was exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests.
(3) For purposes of paragraph (d)(3)(ii)(D)(1) of this section, the term “day” refers to all or any portion of a calendar day.
(iii) The term atmospheric detonation includes underwater nuclear detonations.
(iv) The term onsite participation means:
(A) During the official operational period of an atmospheric nuclear test, presence at the test site, or performance of official military duties in connection with ships, aircraft or other equipment used in direct support of the nuclear test.
(B) During the six month period following the official operational period of an atmospheric nuclear test, presence at the test site or other test staging area to perform official military duties in connection with completion of projects related to the nuclear test including decontamination of equipment used during the nuclear test.
© Service as a member of the garrison or maintenance forces on Eniwetok during the periods June 21, 1951, through July 1, 1952, August 7, 1956, through August 7, 1957, or November 1, 1958, through April 30, 1959.
(D) Assignment to official military duties at Naval Shipyards involving the decontamination of ships that participated in Operation Crossroads.
(v) For tests conducted by the United States, the term operational period means:
(A) For Operation TRINITY the period July 16, 1945 through August 6, 1945.
(B) For Operation CROSSROADS the period July 1, 1946 through August 31, 1946.
© For Operation SANDSTONE the period April 15, 1948 through May 20, 1948.
(D) For Operation RANGER the period January 27, 1951 through February 6, 1951.
(E) For Operation GREENHOUSE the period April 8, 1951 through June 20, 1951.
(F) For Operation BUSTER-JANGLE the period October 22, 1951 through December 20, 1951.
(G) For Operation TUMBLER-SNAPPER the period April 1, 1952 through June 20, 1952.
(H) For Operation IVY the period November 1, 1952 through December 31, 1952.
(I) For Operation UPSHOT-KNOTHOLE the period March 17, 1953 through June 20, 1953.
(J) For Operation CASTLE the period March 1, 1954 through May 31, 1954.
(K) For Operation TEAPOT the period February 18, 1955 through June 10, 1955.
(L) For Operation WIGWAM the period May 14, 1955 through May 15, 1955.
(M) For Operation REDWING the period May 5, 1956 through August 6, 1956.
(N) For Operation PLUMBBOB the period May 28, 1957 through October 22, 1957.
(O) For Operation HARDTACK I the period April 28, 1958 through October 31, 1958.
(P) For Operation ARGUS the period August 27, 1958 through September 10, 1958.
(Q) For Operation HARDTACK II the period September 19, 1958 through October 31, 1958.
® For Operation DOMINIC I the period April 25, 1962 through December 31, 1962.
(S) For Operation DOMINIC II/PLOWSHARE the period July 6, 1962 through August 15, 1962.
(vi) The term “occupation of Hiroshima or Nagasaki, Japan, by United States forces” means official military duties within 10 miles of the city limits of either Hiroshima or Nagasaki, Japan, which were required to perform or support military occupation functions such as occupation of territory, control of the population, stabilization of the government, demilitarization of the Japanese military, rehabilitation of the infrastructure or deactivation and conversion of war plants or materials.
(vii) Former prisoners of war who had an opportunity for exposure to ionizing radiation comparable to that of veterans who participated in the occupation of Hiroshima or Nagasaki, Japan, by United States forces shall include those who, at any time during the period August 6, 1945, through July 1, 1946:
(A) Were interned within 75 miles of the city limits of Hiroshima or within 150 miles of the city limits of Nagasaki, or
(B) Can affirmatively show they worked within the areas set forth in paragraph (d)(4)(vii)(A) of this section although not interned within those areas, or
© Served immediately following internment in a capacity which satisfies the definition in paragraph (d)(4)(vi) of this section, or
(D) Were repatriated through the port of Nagasaki.
(Authority: 38 U.S.C. 1110, 1112, 1131)
(e) Disease associated with exposure to certain herbicide agents. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of §3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of §3.307(d) are also satisfied.
Chloracne or other acneform disease consistent with chloracne
Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes)
Hodgkin's disease
Chronic lymphocytic leukemia
Multiple myeloma
Non-Hodgkin's lymphoma
Acute and subacute peripheral neuropathy
Porphyria cutanea tarda
Prostate cancer
Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea)
Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma)
Note 1: The term “soft-tissue sarcoma” includes the following:
Adult fibrosarcoma
Dermatofibrosarcoma protuberans
Malignant fibrous histiocytoma
Liposarcoma
Leiomyosarcoma
Epithelioid leiomyosarcoma (malignant leiomyoblastoma)
Rhabdomyosarcoma
Ectomesenchymoma
Angiosarcoma (hemangiosarcoma and lymphangiosarcoma)
Proliferating (systemic) angioendotheliomatosis
Malignant glomus tumor
Malignant hemangiopericytoma
Synovial sarcoma (malignant synovioma)
Malignant giant cell tumor of tendon sheath
Malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas
Malignant mesenchymoma
Malignant granular cell tumor
Alveolar soft part sarcoma
Epithelioid sarcoma
Clear cell sarcoma of tendons and aponeuroses
Extraskeletal Ewing's sarcoma
Congenital and infantile fibrosarcoma
Malignant ganglioneuroma
Note 2: For purposes of this section, the term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset.
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I have the article saved if you want me to post it (kinda long), and it does say that a possible side effect of splenda is depression and anxiety.
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The biggest problem with americans is a complete lack of common sense and education when it comes to food. We take these new food fads as if they were scientific fact. There are two thing to remember about food: 1) You can be fat and eat very healthy 2) You can be skinny and have a horrible diet. For instance, potatoe chips and almonds can be quite good for you, but, in large amounts, they will make you fat.
A few key things to look for in foods: 1) saturated fat (bad fats) vs. non-saturated fats (good fats)....most people believe all fried foods like chips, fries etc are horrible for you and, in most cases, they are actually quite good for you. "PLAIN" low/no salt chips have little to no saturated fat, plenty of "good" fat, no cholesterol, no sugar, little or no sodium, and some vitamins and minerals. Also, watch out for anything with "partially hydrogenated oils" in it...most foods contain these oils and have "trans-fats" which are equal to (actually worse then) saturated fats. Some new products claim to be "trans-fat" free but still have these oils...they are lying. 2) cholesterol...your food should have little to no cholesterol. This means lean red meats (or no red meat) and white meat (careful of pork as it is super high in sodium) 3) Sodium...sodium = salt and salt = high blood pressure ('nuff said) 4) simple carbohydrates...there are different forms of carbs that you can get and only one is truly bad (unless you already have diabetes in which case you have to watch all carb intake). Sugar is considered a "simple carbohydrate" and is the leading cause of diabetes. Carbohydrates that are under "fiber" or "starch" are "complex" and beneficial.
P.S. - Foods high in fiber can help reduce cholesterol...cereal can be a very healthy means of reducing cholesterol and is, typically, good for you overall (just look for the above criteria).
P.P.S. - sorry for the long winded rant:-)
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Since we're on health - I have had some issues with the new sugar substitute "splenda". Every time I drink tea with splenda I get chest pains and heart palpatations (quite often)...these symptoms will last for days after using the product. I went to a doctor a few months ago because I hadn't yet linked the problem to splenda and my tests were fine...I came across some articles about splenda and it turns out it is just sugar with a "chlorine" molecule added. The article listed heart issues as a common side effect and listed several other side effects like enlarged thyroid.
Of course the FDA and the manufacterer say it's perfectly safe, but how can drinking chlorine be safe?
P.S. - All of the new soda like pepsi one and coke's "zero" have splenda, as do many new food products.
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Very good links wings, thanks:-) Confirms my belief that the burden of proof is different between rape cases and comabt cases... it also helps ease my wories a bit about the PTSD reviews, as there are firm laws regarding stressors for MST and the VA can't just say there's no hard proof and throw MST cases out.
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Carlie,
Thanks:-) I actually agree that it is harder to get SC for MST as well...I'm having a tough time wording what I actually mean here. It is not, nor was not, my intent to say that MST is easier to SC; rather, I am trying to say that the burden of proof is lower (which doesn't neccassarily make it any easier to SC). Also, my main point is that if the VA changes the level of proof it would detroy what little chance men/women have at getting SC for rape.
I guess I'm trying to say that it takes much more work to SC MST and most vets don't have the ability (due to the PTSD) to go through with a claim for MST, but the burden of proof is different for MST then combat trauma and it NEEDS to remain that way. Is that a bit clearer?
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Allison,
Did you retire from the army after 20yrs of service? If so, have you filed for concurrent receipt? If not, I would quit the job, if possible, and work on SS/TDIU, but be sure to get some strong evidence from a couple of IMOs saying you are not able to work and that further work would worsen your condition...if you go into this saying, "I quit my job because 'I' feel I can't work and that 'I' derserve TDIU as a result" you will be fighting a long uphill battle IMO.
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Plus, routine use of any pain med will, eventually, destroy your liver.
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the question then becomes is it the SC issues causing your unemployability or the NSC issues causing the unemployability issue, this is what I am fighting. I am disabled by SSD for heart problems, the VA has me SC for PTSD at 50% so they keep ignoring the TDIU issue. My appeal for heart problems secondary to PTSD is still pending, so we are playing the chicken and the egg game which came first the heart diseae or the PTSD.
Wow, that's a tough one to prove i bet:-) PTSD can cause many physical symptoms, but none of them can be easily linked and the studies just don't exist to prove it. My wife starting having severe anemia and other blood disorders around the time the rapes occured. At this time she was withholding the rapes from everyone, so they ran many tests trying to figure out what exactly was wrong. It wasn't until two years later that the psychiatrist made the connection, but said it was probably true, but only a theory. The wife also suffers from neuro-dermititus, which is an anxiety induced severe rash over the majority of her body...she has also had panic attacks so severe that her throat swelled shut and she had to go to the ER for benadryl (though the doctors claimed it was due to meds she was taking at the time, she has had similar epsiodes while not on an medications). In short, it is VERY difficult to prove that PTSD can cause any physical problems, but I KNOW it does and have seen it first hand...I hope you get what you deserve.
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I wish you the best of luck Berta, but until these RO's are made accountable for their actions this stuff will continue to happen. I'm sure congress never meant for raters to be able to supersede medical opinion, but they do and they do it often. I'm sure congress never meant for the rater to always choose the lower diagnosis even when there are more, better established opinions on record (in fact, there is a regulation for this).
I really like the people on this forum, but sometimes it can be more depressing then helpful because you see the same stuff happening over and over and over again, which brings a sense of hopelessness. If the vets on this board are having such a hard time, how are the vets doing that don't have our resources and ability to represent ourselves and the ones we love? It is truly a depressing thing to ponder.
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did a search on the forum archive for cue here's the link http://www.google.com/custom?hl=en&lr=&ie=...teransforum.com
Thanks for the link Tbird. This is the first i've heard of this "Grave Procedural Error", should I frame the above arguments as Grave Procedural Error and allow the RO to decide whether or not it was CUE? Does this "Grave Procedural Error" constitute the use of a CUE so that I can't CUE later down the road? I know what they did/are doing is wrong and the BVA isn't going to let it stand, but these people seem very stubborn in their opinion and I'm not sure if allowing them to muddle with it longer and/or asking for DRO will fix it sooner rather then later, but I also know that this case is very clear cut and they have to know that the BVA is going to reverse their decision (talked to an 800 # rep the other day who was absolutely shocked that the RO would give P&T and give a future exam....I get this reaction a lot). Any input would be appreciated.
P.S. - I'm sorry for the rather harsh post last night....I am at my wit's end with this whole situation, not to mention the fact that I've had to give up my entire life to take care of my wife and the world seems to want to make spit on me every chance they get. I didn't plan on being a college graduate sitting at home 24/hrs a day at 29 taking care of a disabled spouse....this isn't what you dream about doing in life when you're a kid:-(
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Carlie,
I'm sorry if that post came across the wrong way. I was writing in response to this PTSD commission and the implications it *could* have on *future* MST cases. The truth about rape in the military is that you CAN'T prove it happened...there is no hard evidence aside from accounts of mood changes from friends/doctors and/or performance changes. These are circumstantial at best and if the same standards were applied to MST cases as they are to combat cases no one would ever get a SC for rape, because you cannot prove it ever happened.
I believe something like 90% of all rapes go unpunished (even less when you factor in only acquaintance rapes) and that number is far higher in the military IMO. If the burden of proof for SC is convicting the attacker in court, almost no victim will ever see a penny from the military/VA.
P.S. - What I meant by claiming it is easier to get MST SC then combat SC isn't that it is easier overall to get SC; rather, the burden of proof is lower (in most cases) for MST vets then combat vets...combat vets typically need hard proof in order to get SC; whereas, MST vets can use second-hand circumstantial evidence. Could you see a combat vet getting SC by submitting a letter from a friend that said, "The vet told me that he/she is having a hard time due to combat PTSD, but I didn't see this happen, nor was I there for the 'combat' situation"? What frightens me is that the VA could easily make the burden of proof equal, which means you would have to have a conviction or a first hand account of the rape(s).
SC for MST is very difficult to get, especially for those who report the PTSD after they were discharged (which many do..IE - delayed onset). Also, most people do not have the ability to ever bring the rape(s) up and don't file due to embarrasment, fear of retribution, pride, etc. I guess you could say that my wife was lcuky in that she broke down during her military service and had a very compassionate AF psychologist (he did not officialy report the rape as was his duty, because she was afraid to speak out about it... essentially, this doctor risked his career to help my wife and there are no words to describe how grateful I am that he did).
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Jay,
I don't think that either one of your proposals meets the criteria for a cue. For a start, get rid of the word 'inappropriately' at the start of the first one. The OGC has clearly stated that inappropriate decsions do NOT meet the criteria of a cue.
The important thing to understand is that a CUE is a 'one shot' attempt at correction, and should be the very LAST thing that you try, after everything else has failed.
Once you have filed a cue, you have basically closed all other doors to solving your problem. This sounds like the simplest way to go to solve many rejections, but believe me, the VA loves to see inexperienced claimants filing CUEs, because they are usually easy to shoot down, and can close the door on any other attempts at solution.
I hate to see all the talk about CUEs here, because they will rarely be successful, and often cause more problems.
A claim is considered FINAL, when all the normal remedies have been exhausted, or time limits have expired. Thus if you haven't been to the BVA and COVA, and the time limits since the last SSSSOC have not yet expired, the claim is not yet FINAL.
DO NOT FILE A CUE, UNTIL EVERY OTHER ALTERNATIVE HAS FAILED!!!
That's what I keep hearing, yet there is nothing in the regulations that seem to show this level of "finality"? Also, I'm not sure what you mean by "not meeting the criteria for CUE"....they clearly broke two standing regulations. If you can't call CUE on regulation violations then what can you call CUE on? In the first CUE the seattle RO stripped my wife of A&A based solely on the fact that they disagreed with her having it in the first place, which violates 3.105 directly...along with the fact that the rater's interpretation of the regulation (regarding A&A) if flatly wrong and I provided a BVA case that clearly points that out. Secondly, the VA cannot schedule future examines for vets that are P&T...not only does it defy common sense, but it clearly defies the regs for "reexaminations".
Honestly, if I can't call CUE on this then I might as well bend over and take the crappy decision they've given me cause there is no hope. They have scehduled my wife for a C&P in 14 mnths and she WILL NOT go to it and this matter will not be resolved in 14 mnths; therefore, she will be 10% disabled come this time next year, which means Ill have to commit her permanently....xxxx life sucks!@
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Honestly, if you know several people who are getting turned down for MST then try to take your cases public. Rape is a big problem in the military and it's one they want to keep extremely quiet. If you can get any newspaper/magazine/etc to help your case you will get what you deserve in a heart beat. Also, bringing up the issue to a senator may help...I believe hutchenson <SP>(Rp from texas) was going after the military hard for rape at one point and she may be willing to help your case.
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The VA is not bound by any regulations pertaining to time, but you can apply for expedition of your case if you meet the requirements (good luck:-).
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I'm also not completely understanding this CUE thing. It has been said that the decision must be final, but I can't find this anywhere in the regulations, nor do I completely understand what is being refered to as "final"? We recently recieved confirmation of our NOD in my wife's case and I will likely ask for a DRO before heading to the board (hoping they fix their obvious mistakes rather then allow the board to do it for them). I have 2 CUEs written and ready to go, but I'm not exactly sure when I should file them? Can I file the CUEs and still go ahead with the DRO? I can't find anything in the regs pertaining to "when" to file CUEs.... I only see regs, as posted above by carlie, that show what constitutes a CUE.
Anyway, here are the CUEs I have ready to go....any input would be appreciated -
>>>To whom it may concern,
I am filing a CUE on the basis that the RO inappropriately applied the regulations in regards to reducing my SMC (A&A) to housebound, in the rating’s decision dated June 11, 2005. The basis for this CUE are as follows:
1) The reasons given for reduction of A&A(dated 06/11/2005…attached) were “You are not in need of aid and attendance of another person to protect yourself from hazards or dangers incident in daily environment. The allegation that your husband must watch over you to keep you from self-harm is not a hazard that is incidental to daily living environment. Clearly your choice to remain in bed and spend much of your day sleeping is not the result of service connected physical or mental impairment”. The above reasons are not “new and material evidence” and do not meet the requirements for a ratings reduction. The RO cannot summarily dismiss another region’s decision as per 3.104 and 3.105 (difference of opinion).
The Prior rating’s decision (from Philadelphia RO dated April 26, 2004…attached) made it clear that A&A was warranted based on “being incapable of being alone at home, as you may be a danger to yourself and/or others.” This decision may only be reviewed at a higher adjudicative body (3.104, 3.105).
2) The rater, in this case, went against the precedent set forth by the BVA (BVA9401373, docket no. 91-46 743….see attached). In this decision the BVA made it quite clear that A&A is warranted in situations where a veteran is a severe threat to him or herself based on suicidal/homicidal ideation and allowed for care to be provided by the spouse. The rater must apply precedent to this case and does not have the authority to lower a rating based on his or her own interpretation of the regulation.
3) All of the evidence of record shows a continued (and increased) need for A&A based on the criteria set forth in the Philadelphia decision dated April 26, 2004. The letter dated April 7, 2005 from Dr. Domash clearly shows a continued need for A&A based on suicidal ideation (attached). The RO also has all of the documents from a recent hospital stay at SW Washington Medical Center (April 21, 2005 – May 2, 2005), in which several suicide attempts were recorded and an admitting GAF of 10(attached) was given (“Persistent danger of severely hurting self or others (e.g., recurrent violence) OR persistent inability to maintain minimal personal hygiene OR serious suicidal act with clear expectation of death.”). Also, a current GAF of 15 was given by Dr. Domash (“Some danger of hurting self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) OR occasionally fails to maintain minimal personal hygiene (e.g., smears feces) OR gross impairment in communication (e.g., largely incoherent or mute).”). There is no evidence of any material improvement in the veteran's ability to care for herself and keep herself safe.
It is quite clear that the regulations, 3.104 and 3.105, were violated in this decision and that precedent was not followed. It is also clear that the rater used opinion rather then medical facts in coming to his or her decision. All of this evidence was presented to the RO and no reasonable mind could argue that this decision was erroneous and should be overturned. Also, this change will result in increased benefits for the veteran (from housebound to A&A) and, therefore, falls under the guidelines of “clear and unmistakable error”.<<<
And -
>>>To whom it may concern,
I am filing a CUE based on the improper scheduling of a future exam for a permanent and total disability. My reasons for this CUE are as follows:
1) The regulations for reexaminations are quite clear (3.327): “2) No periodic future examinations will be requested. In service-connected cases, no periodic reexamination will be scheduled: (i) When the disability is established as static; (iii) Where the disability from disease is permanent in character and of such nature that there is no likelihood of improvement”. The veteran was found to be permanently and totally disabled in a Philadelphia decision, dated April 26, 2004, and again by this RO on July 15, 2005. A decision which is static (permanent) and is deemed that there is no “reasonable likelihood” of improvement cannot have a future exam scheduled.
2) The BVA has consistently upheld that no future exams will be scheduled for a condition deemed to be “permanent” in nature. I am attaching a BVA decision which confirms this, representing just one example of many from the BVA (Attaching a small portion of BVA9401373…the entire decision is on file).
3) The Philadelphia decision, dated April 26, 2004, followed VA regulations and did not schedule a future exam for a condition that was “permanent and total”. I am attaching the decision.
The rater’s decision to schedule a future exam for a permanent condition violates VA regulation (3.327) and should be overturned. All of the evidence of record shows an increased level of disability over the last three years and clearly shows a static condition. All medical opinions state that the condition is not likely to improve and, therefore, the condition is permanent. A permanent disorder is one that is likely to never improve to a point of employability and scheduling future exams based on a rater’s “hope for improvement” is unprofessional and illegal (attaching this quote as it affirms the rater’s opinion in this matter and the lack of medical evidence to back it up).<<<<
Some of the "bold" and "underlined" type did not show in my cut and paste, but are on the documents in question. I would like to get these into the RO sooner then later, but I don't quite understand when I should file them...any help would be greatly appreciated.
Thanks,
Jay
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The wife is 100% for MST....her case was helped by a great AF psychologist and the fact that the military gave her a medical discharge for the rape(s), but it's not impossible to get a SC without prior acknowledgment from the military.
I believe the VA is actually easier on rape cases then they are on war experience (or at least they have been so far). Rape is a HUGE problem in the military and if the VA didn't pay these women/men to keep quiet, then the military would have a big scandal do deal with. Personally, I found it odd that my wife was found to be 100% SC just 2 months after applying for benefits and without even receiving a VA C&P (we filed while still on active duty and she had her decision a month or two after discharge, based on civilian and military examinations).
Most rape cases are IMPOSSIBLE to prove as most are of the "acquaintance" variety ('bout 90% of rapes are by a friend, co-worker, etc). Any "evidence" showing that sex actually occurred is easily negated by the attacker claiming it was consensual....at this point it is one person's word against another, which definitely doesn't satisfy "proof beyond a reasonable doubt". This is why the VA MUST be liberal in dealing with these cases, just as the civilian system is more liberal in "civil" law suites then in criminal law suites (in civil cases you only have to prove that you are correct by a "majority" of the evidence...in other words, you only need to convince a jury that the likelihood of your telling the truth is more evident then not [51% to 49%]).
My smiley are not doing well today???
Dro Delay Tactic
in VA Disability Claims Research
Posted
Senators are useless...I have one of the better ones (female from WA that is on VA senate board) and the process for helping vets is ridiculous. I send in something showing a clear regulation's violation and the senator's aid sends it to the seattle RO...they, in turn, claim that no regulations are being broken and the senator's office says there's nothing more that can be done because the VA knows more then I do. A true waste of time, unless you can somehow get a one on one with the actual senator (good luck with that).