Lamontino Appeal Process

[lamontino]

Goodmorning to all peoples,

Starting a New Thread if anyone needs help please refer to old thread and than come back here to seek answers. I will try to post some of the answer from mems and me in the near future....God BLEss

[lamontino]

The PDA is a Department of the Army agency that has final approval authority for disability cases adjudicated by the PEB. Meaning, Now the BVA and COVA are ruling in favor of vets whom or had rating at the exiting processing done by PEB etc.....

Departing from generally accepted medical principles to adjudicate a case would, for instance, constitute error on the part of the PEB

The Army rates an unfitting condition for present level of severity whereas the VA rates for future progression, that is the prognosis of the illness or injury, and for adverse impact on employability within the civilian job sector.

This creates a very difficult standard of proof, especially for reserve component members who must establish a nexus between their unfitting condition and military service.

In reference to CUE Claim, a vet can estblish a cue claim base on presumption of soundness because it had failed to apply 38 C.F.R. § 3.303(, which governs determinations of service connection relating to chronic diseases, and 38 C.F.R. § 3.304(, which provides for the presumption that a claimant was sound before entering the service.

VA is revising its interpretation of section 1111 to provide that,if a condition is not noted at entry into service, the presumption of sound condition can be rebutted only if clear and unmistakable evidence shows both that the condition existed prior to service and that the condition was not aggravated by service.The VA has to repeat HAS to prove both not just one of the above things.See Wagner v. Principi, 370 F.3d 1089, 1097 (Fed. Cir. 2004).

CUE is not only a failure to apply the law but must also be accompanied by a condition that was ratable based on the evidence in the file at the time the law was not applied

Take for instance you get out the military and they say. "Hey you got spondlysis of the L5 area which existed prior to service. so they let you out the military. Than you find out you had points of tenderness of the L2-L5 which the PEB or MEB failure to address in a "attacking CUE with adding that the PEB,MEB, And now, THe RO failed to applied base of presumation of soundness and failed to adjudicate the other compounds of the back.

If the L2, L3, L4 were diagnosed in service is the VA obligated to adjudicate it if the medical reports did not associate any chronic symptoms nor stated that such symptoms were shown to be chronic in service/

There is also certain language the physician needs to use when opining whether or not the disability(ies) at hand is/are related to the veteran’s service. The following phrases are from the Department of Veterans Affairs “Clinician’s Guide for Disability Examination;”

"Is due to" (100% sure)

"More likely than not" (greater than 50%)

"At least as likely as not" (equal to or greater than 50%)

"Not at least as likely as not" (less than 50%)

"Is not due to" (0%)

Failure to follow this procol could lead to a CUE but that depends on your claim. 20. A CUE is based on the accuracy of the decision made by the decision maker on the basis of whatever evidence is in front of him/her. Duty to Assist” except in the most extraordinary cases where evidence available at the time of the decision to let me out of the service were clearly shown that there was no doubt in any ones mind that the claim would have been decided differently if it had not been for the failure of the “Duty to Assist”

Veterans claims assistance act of 200 (VCAA) applies in this case clearly (38 U.S.C.A 5100 et seq. West 2002. It is written, VCAA applies to any claim for benefits received by VA on or after November 9, 2000, as well as to any claim filed before that date but not decided by the VA’s duty to assist a claimant in developing facts pertinent to his claim, and expanded VA’s duty to notify the claimant and his representative, if any, concerning certain aspects of claim development. VA promulgated regulations that implement these statutory changes. See 38 C.F.R. 3.102, 3.156(a), 30159, 3.326(a), (2005). The case added the requirement that VA must tell the veteran how they will rate the disability per the Schedule of Ratings and also how they will determine the earliest effective date if the claim succeeds. From day one, VA hasn’t done this in any of the letters addressed to me (Dingess-Hartman)

Did Va to just that in your case? Or did you they just let you know half? If half, than you can or should applied that Va error in the law per statutue of its own very law or regulation. Its tricky on how to connect it but I could explain if you would like to know.This doesn’t mean that the decision maker simply stated something that was not accurate, but that the decision itself turned on an erroneous statement of fact as was known at the time of the decision. A CUE must be based on the laws and regulations in effect at the time of the decision.

I know alot of peoples feel also that they cant get an congenital abnormalties rated but Congenital or developmental defects may not be service-connected because they are not considered "injuries" under VA

law and regulations. 38 C.F.R. § 3.303© (2002). However,congenital or development defects may be service-connectable where a superimposed injury occurs during, or as a result of, active service. VAOGCPREC 82-90. So dont fall for the bull that it isn't.

Goodmorning to all peoples,

Starting a New Thread if anyone needs help please refer to old thread and than come back here to seek answers. I will try to post some of the answer from mems and me in the near future....God BLEss

[Jay Johnson]

PEB (Definition please)?

MEB (Medical Evaluation Board - definition?)

PEB = Physical evaluation board...they are just different levels in the medical boarding process. MEB says you're broke and PEB says how broke you are...that's it in a nutshell.

[lamontino]

Goodevening,

PEB=Phyiscal Exam Broad:::::(PEB) relies on the NARSUM (and Addenda) to determine whether the Soldier is fit or unfit for each of the Soldier’s condition(s). The PEB also relies on these documents to obtain the information required to assign the correct rating for those conditions for which the PEB determines the Soldier is unfit and entitled to disability compensation.

A. For purposes of determining the correct rating, the NARSUM and addenda must include the relevant “condition-specific information.”defined as less than six months old if no major change has taken place in the Soldier’s medical condition. See AR 40-400, para 7-10. The DA Form 3947 lists the Soldier’s conditions and, for each condition, whether the Soldier meets medical retention standards.

B. PEB adjudicators consider the entire evidence of record in the context of the PDES regulatory framework. It is beyond the examiner’s authority or expertise to speculate on how the Soldier’s case should be adjudicated. Similarly, the examiner must not recommend a rating within the report. If the Soldier has questions regarding the adjudicatory aspects of the case, the examiner may refer the Soldier to the PEBLO

MEB=Medical Evaluation Broad::::(MEB) regulatory requirements to assure that each Soldier’s case is accurately adjudicated by the Physical Disability Evaluation System (PDES). Once the examiner has become familiar with its contents, the Physician’s checklist (aka MEB Checklist) may, because of its relative brevity, be more useful. See Physician’s Checklist at https://www.hrc.army.mil/site/active/tagd/pda/pdapage.htm

A. MEBs are composed of two or more physician members. One member will be a senior medical officer with detailed knowledge of directives pertaining to standards of medical fitness and disposition of patients, and disability separation processing. See AR 40-400, para 7-3

B. The NARSUM(narrative summary) is very important. Incomplete, inaccurate, misleading, or delayed NARSUMs may result in injustice to the Soldier or to the Army. See AR 635-40, para 4-11. The NARSUM will include a summary of available prior medical records and information from the HREC and the SF 88 prepared at the time of entry into Service. See AR 40-400, para 7-8. If a Soldier does not meet retention standards, the specific reason(s) why should be stated. See AR 40-400, para 7-24 e.

C. DD Forms 2807-1 and 2808 are components of the MEB. To assure these forms are properly completed, the MEB examiner must be familiar with AR 40-501. The Soldier’s medical history will be summarized and elaborated upon and all items checked in the affirmative by the Soldier will be clarified. See AR 40-501, para 8-13, report of medical history forms. Further, the examiner is required to fully describe all abnormalities including those of a non-disqualifying nature. This is important because the MEB will properly rely on this information to prepare DA Form 3947 which requires the MEB list all of the Soldier's conditions, whether or not they meet retention standards.

Thee above mention adjudicatiors,prior to you getting out of the service(sepration for military)whom let you out because of either an injury while in the military or reclass you in a different MOS, or has the authority to either get you benefits or give you 0%.In formulating opinions with respect to EPTS, natural progression and military service aggravation, the report must include relevant evidence and medical literature citations (when indicated). Opinions are not acceptable when based on mere personal opinion, speculation, or conjecture.

In my case, the PEB gave me a permanent L3 Profile with no running or lifting Physical profile. See AR 40-400, para 7-24, g.The physical profile should agree with the severity of the medical impairment(s) as expressed in the NARSUM. The physical profile of the DD Form 2808 should agree with that of the DA Form 3349 physical profile form.

13 through 29 of DA Form 3947

The MEB prepares Block 13a based upon its review of the Soldier’s clinical records, laboratory findings, and physical examination. The MEB must list all the Soldier’s medical conditions.

Block 14.

For cases sent to the PEB, Block 14 should (only) indicate that the MEB recommends that the Soldier be referred to a Physical Evaluation Board (PEB). For cases forwarded to the PEB, the MEB should not be recommending that the Soldier be returned to duty; returned to duty with the following limitations; or other.

P.S. When a veteran's disabilities do not meet the percentage

requirements of 38 C.F.R. § 4.17 (1993), applied to pension cases

through 38 C.F.R. § 4.16 (1993), the Board must determine whether

the veteran would be eligible for pension benefits based upon

subjective criteria, including consideration of the veteran's

age, education and occupational history, and unusual physical or

mental effects. 38 C.F.R. §§ 3.321, 4.15 (1993).

If you need more information let me know. But this info above is for Army. Dont know what service you where in. You will have to tell me more of your situ. You might want to visit here http://www.army.mil/usapa/epubs/pdf/r40_501.pdf and http://www.access.gpo.gov/nara/cfr/waisidx_03/38cfr4_03.html

Alot of peoples on here dont know that failure to adjudicate, apply the correct statute or regulation on the seperation exit can also present a claim For CUE

Sincerely,

Lamontino

PEB (Definition please)?

MEB (Medical Evaluation Board - definition?)

Thanks for the early morning read, took the whole cup of coffee and your post to wake me up. I have a few irons in or that need to be in the fire for processing.

1.I see the differences in the first two statements you posted. chronic disease and condition You mention a VA revision, has that taken effect yet or is there a date? CUE is a challenging animal for me to understand and process. I am thinking there are three or more responses to consider when a claim is denied or underserved an expected rating. New evidence, appeal, CUE, etc,right??

2. My C-File,SMR, C&P and SOC have an occasional statement of *existed before service, occured prior to service, history shows, etc. I have always wondered how to process these typed or written statements that seem to say I've said or provided proof of prior conditions. I guess statements like those probably block and lock my current health conditions from being SC correctly.

your statement "VA is revising its interpretation of section 1111 to provide that,if a condition is not noted at entry into service, the presumption of sound condition can be rebutted only if clear and unmistakable evidence shows both that the condition existed prior to service and that the condition was not aggravated by service.The VA has to repeat HAS to prove both not just one of the above things.See Wagner v. Principi, 370 F.3d 1089, 1097 (Fed. Cir. 2004)."

3. Thanks for helping and offering to help to interpet. The disability claim SOC and replies I've read from VA "seem" to mean one thing or the other, but in a different language that we work hard to understand let alone speak. cg

.

Edited September 18, 2007 by lamontino

[Jay Johnson]

That's what I said....show-off:-)

Edited September 18, 2007 by Jay Johnson

[Ricky]

PEB = Physical evaluation board...they are just different levels in the medical boarding process. MEB says you're broke and PEB says how broke you are...that's it in a nutshell.

Jay's two liner says the same thing your one page post says. Thats all he meant.

[Jay Johnson]

Aye, lighten up; I was just kidding:-)