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Found 5 results

  1. My thanks go out to everyone here on hadit.com! In September 2019, I filed two CUE claims. One was granted and the other was denied, but will be appealed. In 1995, I filed a claim for rhinitis/sinusitis (38 CFR 4.97 DC 6501/6522) and it was granted on appeal in 2000 due to aggravation of pre-existing disability. 30% was awarded, but it was reduced by 10% to 20% due to the C&P examiner's opinion: “OPINION: In my opinion, the veteran obviously had allergic problems before entering the service which got worse while he was in the service…” After fighting for five years, I was elated and took the VSO's advice not to rock the boat. In 2009, I found hadit.com and began educating myself. I always felt something was not quite right and began researching this issue. I was still worried about rocking the boat, but in 2019 I finally got the courage to move forward after having a heart attack and realizing life is short. I performed extensive research and filed the CUE claim in September 2019. Because of the ridiculously strict CUE rules, I was required to use laws in effect at the time the rating decision was made, which were found in old copies of the Federal Register. Another challenge was boiling it down to just the facts, removing emotional factors, and presenting the error from the perspective of a reasonable person (i.e. 8th grade reading level, if that). The VA failed to properly apply this pivotal law from 1961: Two key factors apply: 1. VA must determine the level of disability existing at the time of entrance into active service 2. If the VA cannot determine the level of disability existing at the time of entrance into active service in terms of the rating schedule, they are not allowed to reduce the rating. I then looked up the rating criteria in effect in 2000: My entrance exam was "normal". The C&P found polyps to justify the 30% rating. Can "normal" be ascertained in terms of the rating schedule? No. Other than including a copy of the evidence, relevant laws in effect at the time, and showing how the VA failed to follow the laws when making the decision, this summarizes the entire situation: After the VA received my CUE packet, it took them 127 days to complete the request. Six weeks were wasted by the VA requesting copies of relevant medical records from the VAMC, despite those records already being present in my claims file. Considering the fact that my claims file was partially scrambled and even contained other veterans documents, I kind of don't blame them for re-requesting the records so they have them contiguously. One week was wasted by someone at the VARO asking if a CUE needed to be submitted on a specific form (as of today, not required per M21-1). As for my other CUE, it was for TMJ and failing properly apply DeLuca and ROM laws. The rating decision contained even less detail than the original decision. In effect, they made the exact same error again, so I will be appealing.
  2. Hello everyone, I have been chewing on this one for quite a while and believe this final draft CUE is ready to be submitted to the VA. The decision maker failed to follow the laws in effect at the time. No judgement call factors. Please feel free to tear it apart and offer any suggestions. I wanted to keep it down to about two pages, explain the error, include excerpts from evidence, and include laws in effect at the time.
  3. Hello again everyone. I recently received my records from the National Archives. My case goes all the way back to 1988 when I first filed with VA for back pain and was denied (reason - preexisting condition), and again in 2006 and was denied again (reason - preexisting condition). I was hoping I would have been awarded due to a service aggravated condition. I've attached my MEB and PEB findings from 1988 and was hoping Berta, Asknod, along with any others, could take a look and give an opinion. I had no issues during basic training and AIT. I was injured two weeks prior to the start of active duty, after being in the reserves two years, in a motorcycle accident. I was injured again during field training a few months after being deployed into Germany. From there I have a clear record of treatment afterwards thus leading to the MEB/PEB findings and discharge. This past year I was finally granted medical care access by VA after 27yrs. The VA had kept saying I wasn't eligible prior to this because of the 24-months of service rule even though my discharge or DD214 clearly says "Physical Disability with Severance Pay," which nullified that rule. So I'm finally getting treatment for my back, anxiety, depression, sleep apnea, and a number of other issues for which I'm grateful. When/IF I get the C-File, I'll post those earlier VA decisions and more information. Five months ago DAV sent a FOIA request to VA for my C-File for which I am still waiting a copy and status update. Neither the VA nor the DAV Cleavland office has responded to my emails or messages left. Ebenefits shows the request was closed in August of this year so I'm not sure what else I can do to get them to give me a copy. As always, thank you all for your input. This site is an incredible resource in navigating the VA maze. I have learned so much here. Thanks again and I look forward to your help. MEB P1.tif MEB P2.tif MEB Proceedings.tif PEB Proceedings.tif
  4. There are 5 ways of obtaining Service connection, and not 2 like most VSO's state. The ones most VSO's often state are Direct and presumptive. However, there are 5: 1. Direct 2. Presumptive (this means there was an "act of law" which means you get service connection if you meet the criteria for the law). 3. Secondary. This means your service connected condition somehow caused another illness/injury. 4. Aggravation. This means you while you may have already had an injury in service, your military service "aggravated" and made worse your condition. 5. 1151. This means you sought medical treatment and one or more of your VA treatments caused an injury or illness. If you like, please give your example of how you won your claim with one of these. For example, I think Berta won an 1151 claim as the Va apparently caused her late husband's illness or even death.
  5. Hi all, I was given 10% for tinnitus and 0% rating for my T.B.I. that is documented but the examiner said that there were no "residual complications" as a result of the T.B.I. Stated that in my medical records the T.B.I. had resolved itself and that I was fine. This flies in the face of the fact that after this injury I had a dramatic shift in my moods, became severely depressed, had violent outbursts and even a suicide attempt. My T.B.I. occured in 1982 and after I left the service in 1984 I couldn't hold a job and ended up living on the streets in Mpls. until I went into a private treatment facility. I had no idea at the time that I could recieve any medical treatment through the V.A. until 2003! I have been in and out of treatment centers and hosptials. I am now currently living in subsidized housing, on food stamps, and struggle on a daily basis just to function being on a variety of anti-depressants and anti-psychotics. My question is, a year before I enlisted, I was involved in a motorcycle accident and then two weeks after that I was involved in a car accident both of which resulted in moderate T.B.I.'s where I was knocked unconscious for 12 hrs. and then 24 hours respectively. I reported these facts and are on my records when I first enlisted. I have since researched the medical findings of what is called "cumulative concussions" which increase in their severity over each subsequent injury. That the third or more T.B.I.'s can be the "Straw that broke the camels back" so to speak. My behavior after this T.B.I. in service was "crazy" I did things that I still don't remember but others do and that caused me allot of disciplinary actions. I was arrested numerous times by police and began having allot of problems with alcohol abuse. My sister became so concerned about my behavior that she drove to San Diego where my ship was stationed and had a conference with my C.O. who expressed to her his frustration and concern about my erratic behavior but didn't know what to do. She recently wrote a statement to this effect and I also have a friend who is a retired CWO3 that I was stationed with who is also writing a statement about my erratic behavior. I complained numerous times that I thought I needed some sort of help to my Leading P.O., 1st lietenant, and finally my C.O. but I never got any. I never recieved any medical or pyschiatric examinations and so my medical records don't reflect any of this. The examiner was a total dick and he said I was "fine" and that there was no evidence of any problems. three months before my examination for the T.B.I. I had an examination from a Psychologist and she said that I was 100% disabled, but the V.A. is saying that this is due to my congential psychological issues! Well....duhhh, I started having these "issues" after my T.B.I. in the service. I also found out that there is also a legal precedent that is called the "Thin Skull Rule" where if a person in the civil court system is found to have had a "predisposition" to a disease or injury becasue of earlier problems, such as previous head injuries, etc. then the court is to award the plaintiff full compenstation. In other words, like a carton of eggs that you don't open and look at before you buy them, you get them the way they are, broken or not. Would this also apply to an "aggravation"? I am in the process right now of a Decision Review Officer process and I am just really mad right now that all my problems I started to have are just not being taken into consideration. I have really struggled all these years. Any suggestions?
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