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.

[carlie]

Sandy,

You posted that your friend was a POW for 8 years. That would be the main evidence I would

push forward with in working his claim out.

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§ 3.309 Disease subject to presumptive service connection.

© 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.

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With all of his cervical and spinal problems he surely shouldn't have any problem with a doc very willingly provideing a nexus to active duty.

You said his claim was denied in 2001, was that his first claim for SC disability he ever filed with VA ???

What specifically did he claim ???

What specifically did the Rating Decision state in the Reasons and Bases section for the denial.

You stated he was not shown as having combat status -- did VA show him as POW status, if so -- showing combat status is moot -- so is a lot of other barriers to SC.

Does his DD214 show POW status?? -- What are the SPN codes listed on his DD214??

jmho,

carlie

[Vike17]

Sandy,

It looks like there was documentaion of the accidents in the SMR's, but no documentation of any "chronic residuals" of any injury(ies) from the accident. As Berta and Jbasser said, you'll need to re-open your claim by submitting "new and Material" evidence, which could be any records from the chiropractor from the 70's and 80's and/or a strong IMO from a doctor.

The doctor doing the IMO should include any of the studies you indicated that 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"

This will help exaplain his/her rational for their opinion. One thing to keep in mind the doctor must also use objective findings to further justify the opinion.

The VA isn't trying to wiggle out of anything. It just looks like there isn't the needed medical evidence to support the claim. It appears the "nexus," which is one of the three main protions of any valid claim with VA, is missing.

Vike 17