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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.
I had infant asthma with all signs and symptoms of asthma gone by the time I was 9 or 10 years old. On my pre-enlistment questionnaire, I marked I that I had had asthma (question says do you have or have you had) I had it as a kid and it was gone. I enlisted in the Navy in 1979 and based upon all the research I have been able to find, with any history of asthma, I don't think I should have been allowed to enlist. I have my service records and they are silent of any respiratory testing to enlist. The best I understand is they accepted me with a presumption of soundness. I had not had any sort asthma symptoms for at least 8-10 years prior to service. During rigorous running and physical training in boot camp, I had an asthma attack and had to go to the dispensary. I filed a claim recently for service connection for asthma because it was aggravated in service and I was treated for an attack in service. I also have a 40% rating for a knee condition and have not been able to do much to be active over the years. At my most recent yearly VA physical, my cholesterol and weight were both going up so I figured I needed to do something to get some exercise. Swimming laps is something suggested to me so I tried that and after about 20 minutes of laps I had to quit because I was having asthma breathing problems. I told my VA doctor who treated me with a daily inhaler and a rescue inhaler. Both have helped improve symptoms. The VA denied my claim for asthma saying it was preexisting. I had been asthma free for almost a decade prior to service. If regulations at the time I enlisted say I should have been disqualified for service, but they let me in with a presumption of soundness, what steps do I take in my appeal? My mother has written a lay statement of the chronology of my childhood asthma and when symptoms were gone. How do I show aggravation v exacerbation? What should a doctors IMO say? Thank you.
Good day Good people of Hadit: I recently reviewed my medical records from MEPS and discovered I was documented to having mild pes planus as a pre-service condition. With all of the lower extremity issues I have had throughout my service (and continue to have), none of my in-service records beyond MEPS indicated I had flat feet. Recently, I was diagnosed with severe flat feet by my physical therapist during my initial evaluation. I was also told from my podiatrist that I have moderately severe flat feet and plantar fasciitis in my left foot which that got me looking into claiming this disability with the VA in the first place. I am currently service connected with Right Ankle Achilles tendonitis and bursitis 10%, Left knee injury postoperative residuals 10%, and Left Knee meniscal tear with ACL tear 10% for my lower extremities. Other issues I do have is weakness in my thigh muscle from the ACL surgery that has not healed or developed properly, continued pain in both feet, bilateral knee aches, and back spasms (all in which I have been to the doctor and referred to attend physical therapy sessions). If I have this pre-existing condition recorded from MEPs and it is worst now than it was when I entered the service, can I claim it. Also, how would it effect the other lower extremities I am currently service connected for? Will it lower, increase, or not effect them. I want to make a wise claim, and not something that will complicate it even more. Any thoughts, guidance, or experience with favorable or unfavorable results? Thanks.
Manonfire posted a question in Entitlement - Veterans Compensation Benefits ClaimsHello 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