Filing A Second Claim

[rattattat]

I am trying to help out a friend with his claim. I am new at this and I am sure this has been asked before.

He has a CUE claim at the DRO now.

He was just diagnosed with prostate cancer and skin cancer. He was blue water Navy and served in Vietnam as a pilot.

I want to make a claim even if there is a lawsuit going on about the boots on the ground issue. It won't hurt to try. What I don't know is does he have to fill out another claim form , or append the original claim? I don't want to slow down anything.

I am unsure of the procedure because of what is going on with the original claim. His VSO was not too swift and really screwed up the original claim ,that is why I am doing this now.

I have learned a lot on Hadit and am thankful that this site exist because until I started reading your insightful information, I did not have a clue as to what a veteran was up against. Thank goodness for the internet ! We aren't blind anymore.

My husband was 100%, but only got it a short while before he died. If we had been armed with the information then, that we have now, I believe he would have gotten his rating years sooner.

Thanks for being here.

[Berta]

Can you clarify- he was Blue Water aboard a ship in the pacific during the Vietnam War and also as a pilot he landed and took off from air bases in Vietnam?

Please take note of the Agent Orange update I posted here this AM- also the Blue Water Navy site will give much info too.

ALso this Wednesday at 6:30 EST I will be speaking on the Blue Water AO situation at the veterans SVR broadcast/podcast at:

http://www.stardustent.com/

and will give any further updates I have-

He has prostate cancer and this is presumptive to AO_ he should file a claim ASAP-

if he did not appeal the last claim and it was for AO-

he could refer to Haas and ask them to re-open based on the Haas decision-

or the Blue Water Navy site as well as the NVLSP site will have suggestions as to the wording of the claim-

I am very interested in his CUE claim- can you tell us more on that-

Also-the past claim-

did the VA ever deny him for prostate cancer as SC and then list it as NSC on the decision?

He should dig out that old claim- he could potential succeed in the re-opened claim and then the Nehmer court order should kick in more retro back to the older claim- if the cancer was listed and acknowledged by VA in the older decision- but that depends on many other factors too-

I say this is possible but I dont have all the info-

Maybe this was the point of his CUE claim.

"What I don't know is does he have to fill out another claim form , or append the original claim"

Only one 21-526 is required if that is what you mean but is this a new claim or a re-opened claim-

WHat exactly was the older claim for and I assume he did not appeal their denial?

If he was incountry Nam boots on ground even for a 15 minute pit stop while flying- he satisfies boots on ground- if he was aboard ship in the Pacific ,7th fleet or whatever during the Vietnam war- that too should satisfy Haas when it becomes Law of the land again-

I am optimistic-

This is an issue that I spend most of my time on---------

as many others advocates are doing too----Blue Waters deserve to get back Haas.

The skin cancer-they sure didnt provide sun screen protection during the Vietnam war and the decks reflected considerable sun as well as the sun itself-

is there anything at all in his SMRs or that he was treated for one year after service that can support direct SC of the skin cancer.

Sailors have gotten SC for skin cancer.

Also if it is any type of skin cancer as a soft tissue sarcoma cancer falling into the AO STS cancers- available at Cybersarge's site and NVLSP- this too can be associated to Agent Orange exposure-

please let us know more about the older claim and the CUE.

Edited July 1, 2007 by Berta

[rattattat]

Berta,

The CUE is on his original claim for neck injury. He did not know anything about the claim process at the time (2000)and when it was denied he did not pursue it past NOD. It was only when I read the SOC that I saw a possible CUE.

I have a friend that is a lawyer (just does criminal defense)I had him look at the SOC, a few pages of medical records, and gave him some CFR rules and BVA decisions so he would know what I was talking about.

I am paraphrasing what he said.

Anyway he said that applicable statutory and regulatory provisions extant at the time of the 2000-2001 decisions were overlooked or incorrectly applied, and the decision was not supported by the evidence of record at the time of the decision.The VA failed to apply or incorrectly applied the appropriate law or regulations. A claimant may assert that failure to follow a procedural directive involved clear and unmistakable error because that procedure involved a substantive rule.

He said "therefore 38 U.S.C.A. § 1154( a substantive rule, becomes relevant, and has a legitimate influence or bearing on the decision in the case."

Evidence used to rebut was not based upon the full record at the time, relevant evidence in medical records were not considered.

RO failed to explain it’s conclusions against medical treatise evidence. RO failed to provide clear and convincing evidence to rebut claim.

The RO's reasons and bases were inadequate.

The government has the burden to rebut by “clear and convincing proof” the presumption of service-connection.

Rebuttal did not use all evidence of record.

All medical evidence in the records at the time were not used and this affected the outcome of the case in a substantive way.

A finding of clear and unmistakable error in a decision may be based upon a prejudicial failure to consider evidence which was actually before the AOJ.

In other words they did not use all of the evidence that was before them at the time and if they had followed 38 U.S.C.A. § 1154(B) a substantive rule the outcome of the case would have been positive.

His injury was combat related and they failed to give him combat status even tho the proof of combat was before them, and they did not use 1154(B). They did not mention the medical evidence that supported his claim. They only used one statement in a file that sounded negative, but actually was taken out of context.

As for the AO claim. There is a mention of a leison on his arm in the SMR's, and it is the same location of the cancer that he just had removed.I am not sure about the specific type of tumor.

He said he did land in Vietnam two times, but was in the air everyday. The contaminated air should mean something in AO cases.

If I understand you correctly , I should just send in a statment that he is claiming AO prostate cancer and Skin Cancer due to exposure in Vietnam ?

Thank you for your help.

[Berta]

He should absolutely file the claim and claim both as due to Agent Orange exposure.and see below-

The lesion- I hope it was described better in the SMRs and he has some documentation that this was the beginning of a skin cancer lesion-it sounds to me that -based on what you mentioned-he would have little trouble in getting this lesion directly associated to his present skin cancer- then again I am not a doc-

the only other avenue to go would be to see what specific type of cancer it is and if it falls into the AO STS list- there are about 35 types of cancer on this list- a veteran has to specifically identify their cancer- there are so many medical terms for various cancers and the VA does not compare them all to this list--

I posted this list here at hadit as well as finding it at Cybersarge or NVLSP-available under a search

see below part- I also feel he should raise the issue of how he was sun-exposed in service and that no protective sun screen was issued -and that this factor to was the potential cause for his skin cancer. He can expand on any potential reason for service connection possible.

I feel a veteran should raise any reasonable cause or etiology at all for potential SC-

He should make sure the VA is aware that he landed in Vietnam.

He should have (or could get from NARA) his SRB- at least that is what they call it in the Marines so probably Navy too-

This is a NAVMC 118 form and it is the record of his Sea and Air Travel Embarkation Slips.

This will prove his boots on the ground -then again- he will be covered again by Haas if the court finds favorably for Blue Water AO veterans.

Re the CUE- I dont know how the injury is combat related- but then again he probably laid all this out in his CUE.

Do you know how the VA stated the reason for denial that he cued?

[rattattat]

Berta,

The Soc basically denied him combat status and also said "symptoms only started 3 years ago" That statement in his VA medical records was taken out of context. There are several other pages in the medical file that state symptoms have been chronic for 35 years, but in the denial they say since his "symptoms have only been present for 3 years, and could not be service related."

It is in his SMR that he had 2 airplane crashes and was off duty Post accident. They did not use that record at all.

His service records show that he was in combat by his medals and commendations. It clearly shows the combat "V" on his medals.

I found 2 BVA cases that were almost identical to his ,one remanded back to the RO, and the other was granted outright. I included copies of these cases with his CUE to demonstrate how the outcome would have been different if the law had been followed and all evidence of record had been used. Both cases were decided at the same time that his had been denied.

Because they did not give him combat status they did not use 1154 (. When the injury is incurred in combat the rules are more favorable to the claimant and the injury is presumed to be service connected unless they can show with clear and unmistakable evidence that it was not incurred in service. There is absolutely no evidence that shows his injury happened anywhere except in service.

His SMR's only tell where the leison is located and the size, nothing else is mentioned. His other medical records may name the type of tumor. I'll have to get them all and look.

Thank you for all of the information. You have helped a lot of folks.

[betrayed]

DO NOT FILE ANOTHER CLAIM! FILE A STATEMENT IN SUPPORT REQUESTING THE ORIGINAL CLAIM BE AMENDED TO INCLUDE WHAT EVER YOU WANT TO ADD...................THIS WILL GET YOU THE EED DATE OF THE FIRST CLAIM AND PREVENT ALLOT OF PROBLEMS, BEEN THERE DONE THAT! LEARN FROM MY MISTAKE!