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Master Chief Petty Officer
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Vync last won the day on January 17

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About Vync

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    E-9 Master Chief Petty Officer
  • Birthday October 15

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  • Military Rank
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    Ft.Living Room, AL
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    Family, fishing, movies, video games, gardening, hot rods, computer programming, electronics, music

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  • Service Connected Disability
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  1. For your sinuses, it might be worth it to comb through your medical records (military or otherwise). Maybe get your doctor to fill out a DBQ and write an IMO. For allergic rhinitis, the current criteria is very simple. Mine was confirmed with an x-ray and CT scan. 6522 Allergic or vasomotor rhinitis: With polyps 30 Without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side 10 For the diagnosis within a year of discharge, did they have those records initially? There are different rules for STRs vs. private records. If you had new STRs that they didn't have, then the claim can be reopened under N&M evidence. If the records were from the VA, they are considered to be in "constructive receipt" of the records, even if they were not physically before the rater. If they were from a non-VA doc, and the VA did not have them when they made the decision, then they will discount them as inapplicable. It gets a bit tricky.
  2. You're right. Unfortunately, most veterans don't truly understand the importance of the one year appeal window until it is too late. The VA happily takes advantage of this fact. I'm glad that you and others make posts to remind other veterans of the importance. Hopefully, it will help them to not fall for the same mistakes we made.
  3. That's called aggravation of a pre-existing disability. If they just closed it, you can expect to receive the rating decision within the next couple of weeks. If you filed via a VSO, they should be able to pull up the rating decision letter. I was told recently that you can also go to the VARO in person and request a copy, but I have never tried this (call before you waste a trip).
  4. I also started seeing this same vague statement for the first time yesterday. In fact, I had three on the same date. I called 1-800-827-1000 and they said someone was likely working items on their checklist. They would not tell me what each one meant specifically, claiming they don't have access.
  5. You make a good observation. The VA tends to focus on STRs to determine if it was diagnosed in service. However, when it comes to determining the percentage based on specific criteria, they disregard STRs in favor of what is determined during a C&P exam. Please keep in mind that the current migraine criteria is very specific. You might want to check the Federal Register to see if it differed back when you left the service. The 50% criteria includes "severe economic inadaptability" which is cryptic. It was challenged in Pierce v. Principi (2004) https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000015346/Pierce-v-Principi-Oct-28-2004-18-VetApp-440?query="severe economic inadaptability" It goes on to talk about the VA trying to say that it means you are unable to work, but the court didn't buy it because inability to work would warrant a total disability rating. As far as CUE vs. increase, that's something you will need to determine. For an increase, you merely need to show the proof you qualified for an increase within the past 12 months. The VA might send you for a C&P. For a CUE, you'll need to go back and review the medical evidence, C&P, and rating decision to see if they really did make an error. You'll need to use the laws and the rating criteria in effect at the time the decision was made.
  6. Here are some old rulings. I'm not certain if these are precedent or single just decisions, but they might be helpful. I found them in some older BVA rulings from 1995 through 2000. Of course, they were likely for active appeals, not CUE. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990) (holding that the Board's statement of reasons or bases is adequate when it is sufficient to enable a claimant to understand the precise basis for the Board's decision and to facilitate review in this Court) https://www.uscourts.cavc.gov/documents/Gilbert11-2355.pdf https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000058568/Gilbert-v.-Derwinski,-Jul-25,-1990,-1-Vet.App.-49-(1990) The Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review in the Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990). https://www.uscourts.cavc.gov/documents/Webb_00-340.pdf To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). https://www.uscourts.cavc.gov/documents/Harris_99-53.pdf https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000061412/Caluza-v.-Brown,-April-12,-1995,-7-Vet.App.-508-(1995)
  7. Hmm... Let's take a step back and look at this in perspective: 1. VA takes heat for initial claims taking forever, makes changes to tackle the initial claims backlog 2. VA hastily processes the initial claims backlog, but causing the appeals backlog to swell 3. VA pats self on back for wiping out the initial claims backlog 4. VA clears an average of about 6,000 backlogged appeals claims per month over a 33 month period from March 2016 to December 2019. Pats self on back. Appeals backlog swelled about 260% during same timeframe. 5. At that rate, the VA will have the appeals backlog wiped out in about 16 months... 6. No information about how many hastily processed appeals were submitted for BVA review... The light at the end of the tunnel is getting closer. Let's hope it is not another rubber stamp denial train.
  8. It would depend on how "service connection" is used. Can you give us an example? (feel free to substitute any disability name). For example, the VA may state for for "service connection", you would need to show X, Y, and Z. They can also say "service connection"... "is granted" or "is denied". They would need to explain their decision. Here are the elements of service connection: https://www.law.cornell.edu/cfr/text/38/3.303 Here are the elements of secondary service connection: https://www.law.cornell.edu/cfr/text/38/3.310 -- Secondary is referred to as "proximately due to" -- Aggravation also applies Keep in mind you can get secondary SC if it is due to an existing SC disability or the side effects of medication used to treat it. I hope this helps!
  9. The ultimate statement would also scold the VA for being stupid. "Additionally, medical devices, such as CPAP machines, are not prescribed unless they are medically required for treatment."
  10. Soft tissue injuries can be a bit cryptic. Not having a paper treatment trail could be a problem.
  11. Welcome to Hadit! When the decision letter arrives, please read it carefully. They are supposed to describe the evidence they considered and the "reasons and bases" for their decision. Did you send in a supplemental claim because you filed previously and were denied? Service connection requires three things (may be referred to as Caluza elements): 1. Event/injury in service (or existing service connected disability) 2. Current diagnosis 3. Medical nexus connecting 1 and 2 My initial claim was denied. I knew evidence was in my service treatment records (STRs). They had my STRs, but claimed the records were silent for the conditions. Eventually, they reversed themselves based on what was in those records. In many cases, the VA may just go through your service treatment records first. If they don't find any complaints of it in service, they often deny the claim. This happens all the time and the VA is often wrong. If you were a combat veteran, it could be related. The only catch is the VA likes to have their own doctors verify the diagnosis.
  12. That is lay testimony (i.e. known as evidence). I didn't send my pre-service medical records to the VA. They accepted what I verbally told them. I don't think me checking the box on the entrance exam had any bearing because of the presumption of soundness. However, you do have a doctor stating you have the pre-service injury. Isn't there some provision allowing doctors to opine about a pre-service injury without having actual medical records in front of them? I vaguely recall that. It had to do with the veteran describing the circumstances, the examiner performing an exam, and coming to a conclusion. I recall examples like an x-ray showing proof of healed fracture, etc...
  13. @Ramp Ape Do you have proof that you submitted your claim in Nov 2018? I always recommend using return receipt/certified mail so you can have a hard copy to verify they signed for and received it. I also submit by fax and keep a copy of the confirmation sheet/communications log. Submitting them online is a bit tricky. I did an online claim in 2018 and uploaded all the documentation. They could see where I submitted the intent request, but all the documentation I uploaded disappeared. Of course, they claim they could not see any documents I uploaded.
  14. Correct. In my case, error #2 was a straight case of not properly considering the DeLuca provisions (painful motion = limited motion). The issues with #4 were from the VA not considering the effective dates of initial claims, despite evidence was present. They just didn't go back. And I didn't know to ask for an EED during the appeal window.
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