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Spanky

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My husband is a Vietnam Vet with 3 purple hearts & 2 bronze stars, 1 with valor. I haven't posted very much, but I have been reading here for 2 1/2 years. I have learned so much from all of you to help my husband put together the paperwork for his claim. He also has help from a veteran's advocate who is working through a service representative for the VVA. First for the good news, he just received his rating decision and has been increased to 70% for PTSD and received 10% for tinnitus which adds up to 70% according to VA Math.

I have questions on the effective date the VA has used for the PTSD increase and for the denial of service connection for wounds he received purple hearts. First a little background of his claims.

He originally filed a claim in 1978 for his wounds and jungle rot of his feet through the mobile unit of the DAV. The VA service connected at 0% the wound in his right flank from RPG for which he received his 1st purple heart and the abdominal laparotomy with suture scars resulting from his surgery for this wound. They denied service connection for shrapnel wounds to the head which occurred at this time too. They denied service connection for the gunshot wound to his right arm and the burns on his hand/arms for which he received his 2 other purple hearts. This has always been a sore point for him that the VA couldn't recognize his wounds. He was also denied service connection for the jungle rot and for a wound to the right thigh where he fell in a pit and was impaled on a stake in Vietnam. The DAV was of no help - he had no idea what to do so wrote the VA that they were mistaken and if they would check his military records he had received purple hearts for the head wound, burns & gunshot. He also wrote that they could order his dr records for the dermatitis he had in the areas he was burned. Then in 1997-1998 he had help from the local Vet Center in obtaining his military personnel & medical records and was told all he needed to do to reopen the claim was send the personnel & medical records in to the VA with items pertaining to his wounds highlighted. They still denied service connection because this wasn't new & material evidence. He wrote the DAV what his next course of action should be and received no response, so he did not pursue the claim.

After hearing in the news about the VA denying Illinois Vets claims and lowballing them, in March 2005 we talked to a veteran's advocate who helped my husband file a claim in Sept 2005 for his wounds and PTSD. He received a 30% rating in May 2006 for PTSD. My husband's original PTSD claim included an evaluation from his counselor at the local Vet Center and an evaluation from a private psychiatrist. His counselor at the local Vet Center thought he should be at 50% to 70%.

After receiving the 30% PTSD decision in May 2006, the veteran's advocate sent my husband to get a 2nd evaluation from a different private psychiatrist on June 22, 2006. So when the VA increased him to 70% in this decision they only went back to June 22, 2006 -- quoting the VA, "the date of private treatment, because it shows an increase on this date and the treatment occurred and was received within one year of this date." All of our additional evidence for his wounds and PTSD was submitted in November 2006 within the year's time period we had to submit additional evidence. Should the VA have gone back to the original claim date of Sept 2005?

In the May 2006 decision and this latest decision, my husband also was still denied service connection for the gunshot wound & burns for which he received purple hearts. The VA did service connect the shrapnel wound to his head and the wound on his right thigh at 0%. The counselor at the Vet Center and the vet advocate say that the VA should recognize the purple hearts as proof of the wounds and they are also indicated on his personnel record which we submitted. The VA decision says, "You were previously denied service-connection for residuals of burn to right hand, internal fixation, right acromioclavicular joint, burns of both arms and were notified of the decision on May 17, 1978. The appeal period for this decision has expired and the decision is final. Your claim remains denied because you failed to furnish requested information. In order for us to reconsider this issue, we need "new and material evidence." Any ideas on how to get his wounds service-connected? Does he start the appeal process or is this a CUE? Does he go to our congressman, Senator Durbin? I guess if they service connect at 0% it really doesn't matter now - but it's the whole point the VA doesn't recognize the wounds. It seems to all go back to the 1978 claim where my husband was young and had no help.

We are meeting with the vet advocate to see where we go from here, but was hoping to get your point of views. Thanks.

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Spanky, is the veteran advocate or the VSO experienced in filing CUE claims? Ask them if they've ever filed any CUE claims, and their rate of success. If they try to discourage a CUE, come back to hadit, and you can file it yourself.

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  • HadIt.com Elder

Spanky:

If I was your husband I would be sore also. This case screams for justice. I guess I have gottne used to some of the VA stuff but when they treat a decorated Veteran like your husband like this it irks me that they can even get away with it.

That said they did the same to me use the date of the IMPO to establish a later effective date to cheat a Veteran out of money they deserve. Its really ludicrous and they don't expalin why when the Veteran asks either they just told me that its the law. I had to get my own Outside Medical Opinion to refute the insane BS that some Rater had and than they changed my date from June 1991 till Oct 1993 when I paid for a second opinion.

Next thursday I will know more and will post on Hadit thursday or Friday.

Hang in there it looks like you are getting help and you might talk to your VSO about a DRO Hearing to address the effective date. Also if your husband is not working or marginally employed you should look at TDIU 100%

Pete

PS Welcome to Hadit we have a special place in our hearts for spouses who stick with and help their Vets with claims

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  • HadIt.com Elder

Spanky, your post touched my heart and gave me goosebumps as well. You have good and valid questions that need answers. Between VSO, Hadit and your congressman, I hope you and your husband get whats due. Meanwhile, do you have a current IMO opinion regards the wounds and dating them back to his service days? I am also befuddled why the VA hasnt service connected those injuries if listed in his service records for the medal award and show in his SMR. my best for now,cg.

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"Should the VA have gone back to the original claim date of Sept 2005?" Yes if the evidence warranted the increased rating at that time.

What did VA say about TDIU/ Is he still working?

GSWs and residuals-these are rated by muscular damage and also by length of scaring and whether the scarring is painful or visible- etc-

A vet won a GSW CUE going by to 1953 a few years ago- by proving the VA erred in their assessment and Diagnostic code.

Although the GSW was clean through and through with fairly minor entrance and exit wounds the VA insisted for over 4 decades that the vet received no muscular danage. But he did.

I posted that claim here- I think the vet's name is Myler- it is available under a search here.

I dont see CUE basis in your husband's case-you can NOD the recent decision and raise these factors- also if he isnt working I can attach the TDU form to a post but I am curious why VA did not award him TDIU yet. What did they say about that in the last decision?

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Spanky,

I am only addressing the wounds issue, not the PTSD.

Whatever else you do, I suggest you write a letter to Senator Durbin about this immediately. You don't beed to worry about it "slowing down your claim" because you really don't have one yet because you're trying to determine what to do NOW re: an earlier decision getting wounds SCed from a claim closed in 1978 (if I am understanding it right), so just send off the letter right away.

Personally, I prefer to "shotgun" my efforts, i.e., have several things going at the same time -- several simultaneous attacks if you will -- rather than doing one thing at a time, waiting for results, then trying something else. This wastes time, especially for vets who may not HAVE a lot of time.

In your letter to Senator Durbin, keep things clear, plain and very simple:

1. State that your husband received combat wounds while on active duty in service in the RVN and he has the Purlpe Hearts to prove it (and probably entries in his SMRs so mention that also if the SMRs show treatment/hospitalization for the particular wounds in question, i.e., those wounds not yet SCed).

[iIRC, wounds that have no residuals NOW would not have any rating other than 0% but that's all you want anyway]

2. Despite this, the VA has SC-ed only SOME of said documented wounds, not ALL of them as would have been the CORRECT decision. Consequently, the VA erred in its original 1978 decision to SC ALL these wounds.

3. Also admit that the erroneous [i like to repeat certain words for clarity and association in the mind of the reader] original 1978 decision was, for whatever reason, not appealed and so the claim was closed and the said erroneous decision was therefore made permanent. Still, it was a WRONG decison then becasue the VA DID have the evidece to decide it correctly but failed to do so.

4. Ask Durbin to get a clear answer from the VA why it did not SC ALL your husbands wounds when it had the Purple Hearts and SMRs proving ALL the wounds were received in combat during active duty service in the RVN. Why were SOME wounds SCed but others NOT SCed? Any reasonable person would at least find this contradictory or arbitrary.

Make a brief closing statement, scan and save a copy for your records, and then mail it off ASAP.

The lack of an appeal back in 1978 hurts your case big-time because the claim was closed and it's harder to open NOW because of requiring "new and material" evidence...or proof of a CUE back then (as you already know). The claim should have been appealed THEN, but it's too late to worry about that now so you have to deal with the present.

So RIGHT NOW I would send that simple one-page letter to Senator Durbin to start the ball rolling there and, not waiting for results with that quarter, try to determine if what the VA ALREADY HAS -- the Purple Hearts and any SMRs re: hospitalization, etc., for these wounds truly IS "material" evidence (it's not "new" evidence but if it's "material" it's enough) then it SHOULD have resulted in a VA desision to SC ALL the wounds back in 1978 instead of denying some of them and therefore is grounds for a CUE claim.

I am not a VSO or even close, just a vet, but my understanding is that "material" evidence is evidence that is persuasive enough to alter a decision, i.e., change a denial to a grant. I would think that the "material evidence" -- the Purple Hearts and SMRs -- was ALREADY THERE for the VA to consider in 1978 so why the decidsion NOT to SC the wounds? Sounds like a big error on the part of the VA in that it disregarded "material" evidence...and I sure don't know how the VA missed it if it used the same evidence to SC the OTHER wounds. This sounds like a CUE to me because *I* would argue that had the VA PROPERLY considered those two pieces of evidence back in 1978 -- Purple Hearts and SMRs -- it would have rendered a grant of SC rather than a denial, therefore, it committed a CUE in its earlier decision.

Someone correct me if I have this wrong as I am no CUE expert.

Whatever, my MAIN point of my response here is to suggest that you send off the letter to Senator Durbin immediately and then keep the pressure on him (call his office at regular intervals to check on any VA responses...get the know the particular Durbin's office staff member you will be working with) to get some answers from the VA which you can then cite in rebuttal if you pursue a CUE claim now or end up at the BVA later on.

Good luck,

-- John D.

Edited by cloudcroft
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Thank you all for your replies. It is very much appreciated. I realize how much time you all put into helping others - this is all so time consuming.

In answer to some of your questions:

My husband did not apply for TDIU. He is still working as a letter carrier at the post office. He worked part-time for 6 years and has been full-time the last 2 1/2 years. Buying back his military time, he is eligible for retirement and would love to retire since his job effects his PTSD. It would be 4 or 5 years before Soc Sec kicked in though, so he doesn't consider retiring an option at this point.

My husband's GSW and burns are noted in his Military Personnel Record on his (DA 20)? Enlisted Qualifications Record in section 40 - wounds, as well as the wound to his right flank. These two wounds he also received purple hearts for. We submitted the Enlisted Qualfications Record and the orders & certificates for his purple hearts to the VA. We have been unable to find any reference to the gunshot wound & burns in his medical record and I have looked hard at these records. So many of his medical records are illegible - I scanned them and darkened, sharpened them on a photo editing program and we have deciphered most of them. That his how we got service connection for his "jungle rot" this time and for the wound to his right thigh.

My husband says he was in the field and didn't even realize he'd been hit from the bullet until after the firefight and he could lay his finger in the GSW. The wound was cauterized from the bullet. He did see the medic but did not require stitches, etc. He does have an obvious scar 1 1/2 to 2 inches long on his forearm. As for the burns, my husband remembers burns to the arms not the hand. He said the medic gave him some salve to put on the burns - they were not severe burns - not blisters - forearms & inside of elbow were very, very red.

Our family doctor wrote a letter indicating his scar from the gunshot wound and the pains he was having in his right arm as well as tenderness associated with his other scars. After X-rays, an ECG, sonogram and MRI they have been unable to diagnose the sharp pain in his right arm. Two doctors have told us that the nerve studies don't always show the problem. The vascular surgeon did indicate that he thought the pain might be from the ulnar nerve from the gunshot wound, but he did not put that in his records - so it remains undiagnosed. He does not have a noticible scar from the burns, but he has had lots of dermatitis problems in that area since he's been home from Nam which the doctor says is reaction to heat, dust & perspiration.

The VA writes, ".....we received and considered the personnel record which noted the right arm, however, there is no treatment or findings of a gunshot wound or residual scar and the denial was continued....." and goes on to say that the evidence was not new and material. The VA also writes, "the evidence does not address any treatment or findings of residuals or scar from a gunshot wound to the right forearm. Your VA treatment records do not address complaints or findings." The statements for the burns read about the same.

We attached our doctors statement & medical records directly to each statement of claim highlighting the appropriate statements. We attached a very clear picture of his GSW scar. As far as the VA treatment records, my husband pointed out the gunshot wound to the VA doctor last April when he went to the local VA clinic and the problems he was having with his right arm - that doctor who is no longer working there sent him off to Danville for several tests which our private doctors ran a year ago. He also pointed it out to the C&P doctor because he specifically told her the problems he was having & what the surgeon had said. Honestly I can't believe they won't service connect these and for them to write the statements they did - I don't understand. I also can't believe that some of his wounds - they call them scars - doesn't at least qualify for 10% disability - I've looked up the schedule of ratings and evaluation for muscle injuries which I'll be looking at.

Berta - I am definitely looking up that Myler claim. Thanks

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  • HadIt.com Elder

looks like you are on the way, contact the powers that be and have at it.

I believe 0% is rather common rating for scars, I have heard of peacetime appendectomy or arm surgery type scars get at least 0% SC! All in all, with the combat data and follow through care you mentioned I believe you are on track. Have you spoken to a VA counselor to see what the heck else do they need? Interesting enough, your statement mentions only one GSW, does it specify which or where it was? Is there a "decoration letter" or description of the event for the GSW ?

"My husband's GSW and burns are noted in his Military Personnel Record on his (DA 20)? Enlisted Qualifications Record in section 40 - wounds, as well as the wound to his right flank. These two wounds he also received purple hearts for. We submitted the Enlisted Qualfications Record and the orders & certificates for his purple hearts to the VA."

I second the recommendations Cloudcraft and Berta offer, as well as give Pete a hug.

Do you have a current copy of your husbands C File? (be sure to request all VA claim data as well as SMR copies). I hope those records are easier to read if at all possible. I was able to get a copy of my SMR before leaving the service and another copy from the VA Cfile, less pages in the latter one, hm.

"your VA treatment record do not address complaints or findings" Well, looks like your husband been treated by the VA for investigation of GSW and other issues? Most intake interviews; (questions medical personnel ask and respond to on a computer program) ask for patient input for PTSD, injuries, health issues, etc.

"my husband pointed out the gunshot wound to the VA doctor last April when he went to the local VA clinic and the problems he was having with his right arm - that doctor who is no longer working there sent him off to Danville for several tests which our private doctors ran a year ago. He also pointed it out to the C&P doctor because he specifically told her the problems he was having & what the surgeon had said"

So, its possible that discussion and "complaint" of issues i.e. GSW could be in the CFile.

God Bless,cg

Edited by cowgirl
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Here is Myler:

http://www.hadit.com/forums/index.php?showtopic=6058

there is more discussion on this case under the search feature put Myler CUE into the hadit search browser.

I think he should send in a DD 149 for a correction and if he was eligible for the PH this would get the PH on his DD 214.(they send a DD 215)

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Yes, Cowgirl -- Cloudcraft, Berta & Pete deserve a big hug, and you deserve a big hug, too. You are all so wonderful to offer your help.

Berta -The 3 purple hearts are listed on his DD214 as Purple Heart w/2d OLC.

He has the PH certificates but we have been unable to find a decoration letter or anything that describes the events. He has one for his Bronze Star w/valor but nothing like that for any of his purple hearts.

We don't have copies of his C-file. That is definitely next on my agenda. Easy enough to request.

The Enlistment Qualification Record dated in Aug 69 specifically lists his wounds & dates of his wounds in Sec 40. The dates listed are the dates of his purple hearts:

FW: ® Flank 18Aug68

Burn: ® Hand 23Feb69

GSW: ® Forearm 5Mar69

Both the Vet Center counselor, the VSO and I thought this was a "no brainer" for the VA since we had the appropriate pictures, private medical records, military records stapled to each claim statement.

We are meeting with the VSO this week - hopefully Wednesday - and we'll decide how we proceed after that. I am all for contacting Durbin & Obama at this point, but we'll talk to the VSO first. Durbin has helped a couple guys my husband knows here in town, so.... The Vet Center counselor actually mentioned this to us a while back. We were trying to have faith in the system before doing this. Actually when we started all this we joked about contacting the Sun Times who exposed the VA practices in IL and also joked about contacting 60 Minutes, Primetime, Dateline.

Both the VSO and Vet Center counselor said that usually having a purple heart is 10% which is what we heard from people in the past. Our VSO showed my husband the statement in his big manual indicating this. I have always felt my husband was wrongly denied back in 1978. He has so much anger built up from the VA not service connecting the wounds and not being granted 10% back then. It's so funny that the 2 new claims - PTSD and tinnitus - were granted but we can't wounds for purple hearts acknowledged and it's in his military record and was back in 78.

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  • HadIt.com Elder

Spanky, questions for thought and no need to answer them here. Did your husband have a VSO at the time he filed for disability compensation in 1978? Its possible that an appeal was submitted, who knows? Again, the Cfiles should shed light on submitted claims and compensation examination history, as it were. Looking at the dates, did your husband stay on in the military until 1978? or have a reason he didnt file until then? For what it matters, I believe your Purple Heart Hero deserves service connection to the day! cg

Edited by cowgirl
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