Cue Or New Claim?

[rattattat]

Hi folks,

New to the board but have been reading for awhile.

I am trying to help an old friend. His claim was denied in 2001. At that time he was in poor health (still is, but better) and had no help or advice from DAV rep. He knew nothing about the VA system and just let the claim go after he appealed and was denied. He was just to weak to take care of business.

VA had his SMR, VAMC Records, personnel records,his testimony about being injured in combat, copies of medals and commendation,DD214,and some scientific articles connecting his specific injuries to jet pilots.

I looked at his claim and it appears that he was not given combat status. That caused many of the rules relating to combat not to be used in his review.

He was in the Navy for 8 years and flew an A-4 Skyhawk. He had 130 combat missions , 2 Navy Commendations with Combat "V", and 13 air medals. He was in Vietnam in 1965 so the air medals did not have the "V" affixed to them. The Navy did not assign "V" until 1974.

He has a dianosed Cervical spine injury from C-2 down to T-1, and has had a disc fusion at C-5 C-6. He had two plane accidents in service which he can prove, but are not mentioned in his SMR. He told me his pain began after the last accident in 1964, but it got alot worse during his combat flights and never went away. None of this is in the SMR.

I did some research and found that the Navy and Air Force have done extensive studies on neck and back problems in pilots. It is a known documented fact that the G's pulled by these pilots produce compression fractures, intervertebral disc disorders, curvature of the spine,latent thoracic and lumbar arthritis and cervical neck injury.

What I am wondering is how should he proceed with this case ? Does he have a CUE , because they did not give him combat status even though in the evidence it showed the combat V and air medals? If the injury occurs or is aggravated during combat, doesn't that change the way they are supposed to review the evidence and apply the regs?

They said there was no symptomatology until 1996. It clearly states in VAMC records, "long term history of neck pain, but symptoms increased in severity 3 yrs. ago".

No nexus and not in service records was also sited in the SOC. No mention of combat. Reasonable doubt not used because preponderence of evidence was negative.

What do you guys think? CUE, Refile, or Reopen ? Any comments would be helpful.

Thanks ,

Sandy

I am the widow of a 100% service connected vet. It took him 10 years to get his rating. HE FINNALLY GOT IT 3 WEEKS BEFORE HE DIED.

Just a footnote. My friend was in the squadron VA-163 with James Stockdale and Harry Jenkins they were POW for 8 years. Sen. John McCain was also in his squadron but he was a year later.

[Berta]

Sandy- his combat or non combat status isnt the issue- the nexus is:

"He had two plane accidents in service which he can prove"

He can re-open with any new evidence to prove this-

and he will need a strong medical statement (such as an independent medical opinion)

to link the present disability with the accidents.

If the VA told him this info wasnt in his SMRs he has to get his SMRs himself from NARA and see what they really say.

Also if he does this I suggest that he ask for -on the SF 180 at the NARA site- for all personnel records too- possibly he was off duty and then got light duty for a while after these accidents-

also he should try to find his unit for a buddy statement to prove he was injured in the accidents.

The medical treatises are good but only to enhance a strong medical opinion.

An IMO doctor should see them if he gets an independent medical opinion.

I dont see this as a CUE claim. yet- Best to focus on a re-opened claim in my opinion-

Was he a member of the "Saints" who flew off the USS Oriskany?

It appears he might have been to me and there should be some info on the net regarding them.

I NEVER believe the VA about SMRS and personnel records-

best to get them himself.

I am glad your husband got his 100% but it is outrageous that he got it 3 weeks before he died.

Mine got his 100% three years AFTER he died.

This vets claim will be difficult but nothing is impossible with the VA.

I certainly feel he would need the IMO to raise to level enough to receive Benefit of Doubt consideration.

[jbasser]

This vet needs to re-open the claims for his neck. I agree with Berta that there is not much of a chance for a Cue unless the previous decision was erroneous. What he needs is a medical opinion. He may want to go outside the VA to get one. He may want to get an IMO from a Neurologist/neuro radiologist/Neurosurgeon. They may nexus his service for the vet.

Good luck.

[john999]

Does your friend have anything in his private medical records that would show continuity of symptoms since his discharge. I think it is very common for pilots to have back injuries especially if they had hard landings. If their is anything in his records to suggest he had accidents and he has records of treatment for a back injury since his discharge I think he should get the benefit of the doubt regardless of being in combat. If he had applied for a disability within one year of discharge I think he would have gotten it. It is the many years since discharge and his filing for disability that is giving the VA the wiggle room to attempt to deny his claim. I don't know if his being a combat vet and the VA not recognizing this is enough for a CUE. I sure would not give up on his claim, however. His injuries seem consistent with his flying 130 missions and all those landings. I think he needs something to account for the 30 years between the time of his discharge and his claim. If he was getting treatment for back pain it would make sense that the problems could have started with flying in the service. Also, since he was in combat if he claims a certain number of accidents the VA should accept his account if there is no evidence to the contrary. I think they are just playing games with him. He should get more evidence and reopen the claim. He may have a better shot this time around. Just my opinion.

[rattattat]

I will tell him that he needs to get an IMO, and to reopen the claim.

Berta, yes he was on the Oriskany with the Saints.

He went to a reunion last OCt. It made him sad. Most of his real close buddies died in Vietnam or have since died. He only knew a couple of the people at the reunion and I don't think they were with him in 65.

He gets all teary eyed whenever he talks about any of that stuff. I know he is still hurting. He says it never goes away.

Thanks for all the help. It is a real service for so many.

Sandy

[Pete53]

Sandy:

Welcome to Hadit and thank you for helping a Veteran. It really hurts that Veterans have to wait so long for the VA to do the right thing.

[rattattat]

Does your friend have anything in his private medical records that would show continuity of symptoms since his discharge. I think it is very common for pilots to have back injuries especially if they had hard landings. If their is anything in his records to suggest he had accidents and he has records of treatment for a back injury since his discharge I think he should get the benefit of the doubt regardless of being in combat. If he had applied for a disability within one year of discharge I think he would have gotten it. It is the many years since discharge and his filing for disability that is giving the VA the wiggle room to attempt to deny his claim. I don't know if his being a combat vet and the VA not recognizing this is enough for a CUE. I sure would not give up on his claim, however. His injuries seem consistent with his flying 130 missions and all those landings. I think he needs something to account for the 30 years between the time of his discharge and his claim. If he was getting treatment for back pain it would make sense that the problems could have started with flying in the service. Also, since he was in combat if he claims a certain number of accidents the VA should accept his account if there is no evidence to the contrary. I think they are just playing games with him. He should get more evidence and reopen the claim. He may have a better shot this time around. Just my opinion.

His SMR has a reference to the accident in 1964, no detail, just says post accident. When he was in flight training in 1963 his training folder has the accident and how much damage was done to the aircraft (extensive), but nothing about him.

He had almost 500 carrier launches&landings in 6 months. I understand that was close to a record.

He did see a chiropractor during the 70's and 80's, but he died sometime around 1995. The records were destroyed after his death.

Yeah, the VA wiggles whenever and however it can.

Thanks for your reply.

Sandy