Terry- What Do You Think Of This

[Guest Berta]

Your SC disability was awarded by Presumption-

ie: manifested to at least 10 % within one year after service and/or while in service:

M21-1, Part III April 5, 2005

Change 132

d. Development of Evidence for Presumptive Service Connection. The issue of service connection for a chronic or tropical condition must be considered on both a direct basis and a presumptive basis. A substantially complete claim must be of record before the following applies:

(1) The possibility of entitlement to presumptive service connection will always be held to exist when the veteran alleges inception within the limiting periods contained in 38 U.S.C. 1112 or, when appropriate, 38 U.S.C. 1133.

(2) The veteran need not establish that the condition in question was definitely diagnosed within the presumptive period.

(3) Evidence should show that manifestations of the condition, disabling to the degree of at least 10 percent, became apparent prior to the expiration of the presumptive period shown within 38 CFR 3.307.

OK----there are some key statements there

your diagnosis did NOT need to be definitively established within the presumptive period

and "manifestations of the condition (disabling to at least 10%) became apparent prior to "

etc----

This would be MMPIs and 1976-1977 'manifestations' as documented-

(the diagnosis did NOT have to have been established)

Then if one reads this:

Sec. 1113. Presumptions rebuttable

(a) Where there is affirmative evidence to the contrary, or

evidence to establish that an intercurrent injury or disease which

is a recognized cause of any of the diseases or disabilities within

the purview of section 1112, 1116, or 1117 of this title, has been

suffered between the date of separation from service and the onset

of any such diseases or disabilities, or the disability is due to

the veteran's own willful misconduct, service-connection pursuant

to section 1112 or 1116 of this title, or payments of compensation

pursuant to section 1117 of this title, will not be in order.

(;) Nothing in section 1112, 1116, or 1117 of this title,

subsection (a) of this section, or section 5 of Public Law 98-542

(38 U.S.C. 1154 note) shall be construed to prevent the granting of

service-connection for any disease or disorder otherwise shown by

sound judgment to have been incurred in or aggravated by active

military, naval, or air service.

Source

(Pub. L. 85-857, Sept. 2, 1958, 72 Stat. 1120, Sec. 313; Pub. L.

102-4, Sec. 2(:), Feb. 6, 1991, 105 Stat. 13; renumbered Sec. 1113

and amended Pub. L. 102-83, Sec. 5(a), ©(1), Aug. 6, 1991, 105

Stat. 406; Pub. L. 103-446, title I, Sec. 106(:), title V, Sec.

501(B)(1), Nov. 2, 1994, 108 Stat. 4651, 4663.)

--------------------------------------------------------------------------------

(I went back as far as I could on this reg but need to check the sole amendment (Pub L 102-83) haven't found it yet-I dont feel it altered this much---)

One can see that

1. Presumptive conditions can only be rebutted with affirmative evidence to the contrary-

The VA has only found that you are SC and presumptive----they have no contrary evidence to that fact-

and

2.within b it clearly states that presumptive designation is synonymous with occurence in service-

IE: you had schizophrenia manifested in service by symptoms-as granted by the VA under presumptive-

This Sec of Title 38 is interesting in that it infers that the VA has to use 'sound judgement'-

I think the VA failed to properly rate you for a Presumptive condition-I think this is the regulation they broke-

Does this make sense to you?

This helps too:

http://webisys.vetapp.gov/isysquery/irld457/1/doc Buford V. Motley-

"Schizophrenia is a psychotic disorder and is considered a "chronic

disease" for purposes of establishing service-connected VA benefits within the statutory presumption period. 38 U.S.C. 1101. In the case of any veteran who served for ninety days or more during a period of war, service connection for chronic, paranoid schizophrenia can be established by

proving that it became "manifest to a degree of 10 percent or more within one year from the date of separation from such service." 38 U.S.C. 1112 . VA regulation 38 C.F.R. 3.303(B) establishes that the chronicity provision applies where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Under the Court's caselaw, medical evidence is necessary to support chronicity unless the condition at issue is one that lay observation can identify. Savage, 10 Vet.App. at 495-97.

(WHERE EVIDENCE REGARDLESS OF ITS DATE- my emphasis)

The record reflects that Mr. Motley provided to the RO and the Board lay evidence, specifically his testimony and lay statements from family members, that he experienced symptoms of schizophrenia within the

presumption period under section 1112. Moreover, he advised VA that he had been treated during service for migraine headaches, hearing voices, and sleep problems. R. at

118-21, 299-301, 668. However, there is no indication that the Board considered these manifestations of schizophrenia and applied them to the

presumption available under section 1112. See 38 U.S.C. 1112. Further, VA regulation 3.307© states in pertinent part:" etc----

I think this case has bearing on yours----too---

What do you all think?

I dont believe that the BVA used "sound judgement" (Sec 1113,38 USC)but that is not a CUE- I do believe it was a factor that caused a CUE by their failure to consider legal presumption at that time since it has been accepted as fact since.

There is and was no affirmative evidence contrary to Terry's actual documented disability.

Edited November 15, 2005 by Berta

[Guest Jim S.]

Berta: What do they mean by lay observation, as stated below

medical evidence is necessary to support chronicity unless the condition at issue is one that lay observation can identify. Savage, 10 Vet.App. at 495-97.

Would this be an observation from a close friend or family member? What would they have had to observe in order to show they observed the Veteran with schizophrenia? Or is this a condition that lay observation would not be aloud.

Jim S. ;)

[Guest phubai70]

where to find Savage 10 Vet App.....

This along with 38 CFR 3.304(d)

may be instrumental in my (and others)

claims.

[Angela]

Terry,

In BVA decision, Citation Nr: 0403497

VA's General Counsel demonstrated that specific errors in weighing evidence may indeed constitute CUE in that they may demonstrate “whether the correct facts were before the Board”.

[SLEDGE]

I can't find that??

(BVA decision, Citation Nr: 0403497)

sledge