Do We Proceed With An Appeal?

[Spanky]

My husband received his rating decision dated 9-29-07. In this decision they gave him 0% for jungle rot for his feet and ordered an at once C&P. They stated they would evaluate after the at once exam and assign a higher percentage if warranted. He went to the C&P a couple days ago.

He has a gunshot wound on his arm and burns to his right hand for which he received 2 of his 3 purple hearts and he has tried to get these service connected even if it is 0% - the VA stated in this last decision these were not related to his military service and service connection remains denied. We just don't understand why the VA won't recognize his purple hearts as proof of his wounds. He has a 3 or 4 inch scar across his forearm due to the gunshot wound, but he does not have any scarring from the burns but it is noted in his personnel file that he had burns to the right hand and he has his purple heart for it. He originally applied in 1978 and didn't appeal. He just wrote a letter stating he disagreed. He wants to appeal this so the question is do we proceed with the appeal or do we need to wait until he gets a decision on his feet from this last C&P?

Thanks

[Berta]

Are the PHs on his DD 214?

Did he call to VA's attention that one of the PHs is mentioned in his SMRS?

"the VA stated in this last decision these were not related to his military service and service connection remains denied"

Now I understand why the vet rep wants to see the citations-

I suggest he apply for a DD 215- a correction of the DD 214 whether the PHs are on it or not and attach letter asking them to send him copies of the citations.

Just put Not Applicable at the questions about the 'injustice' part.

I will attach the DD 149.

[Berta]

He should tell them any info and details at all that could help them find proof of his 3 PH awards- The form says where to send it-

dd0149.pdf

[Philip Rogers]

Not sure but I don't think they give PH's for burns, unless he bled. As for the other wound it doesn't surprise me. I've seen the VA deny a vet with shrapnel in him. jmo

pr

[Spanky]

Thanks for everyone's help.

Yes, the purple hearts show on his DD214. It shows as "Purple Heart w/2d OLC" OLC meaning Oak Leaf Clusters which is how the orders for PH #2 & PH#3 are shown - Award of the Purple Heart, First Oak Leaf Cluster and Second Oak Leaf Cluster. This was confirmed by a different VSO when we first began this claim in 2005. I am sending a request for records specifically asking about the PH citations though.

The problem may be that we have never found anything in his service medical records regarding the gunshot wound & the burns. His medical records are very illegible but I have scanned, darkened, enlarged, etc and we have now been able to read most of them. He was not hospitalized for either the burns or gunshot wound, he was treated in the field and went back to fighting. He said the burns were not 3rd degree burns, the medic put ointment on it and bandaged it and like I said he went back to fighting. My husband questions whether the medics would keep good records when they are treating so many wounded in the field. His wounds though are listed in his personnel record on form DA20 -- Enlisted Qualification Record and it also gives the date which corresponds to the date of the PHs. He has pointed this out to the VA by indicating each wound on a separate Statement in Support of claim and attaching relevant documents and highlighting. He has also written a statement how he obtained his wounds and had it notarized.

[rentalguy1]

The VA has a regulation that states in effect, that if a vet says it happened in combat, then it happened in combat. VA cannot deny it. This is due to the reason you stated below about combat medics not being able to keep adequate records in the field. I will try to find the exact reg and post it here, but if someone else finds it first, please post. You have a CUE here based on procedural error, if nothing else. Once again, I am almost positive that the pH did not come with a citation because it is a very specific award. The GCM is the same way, because of the specificity, there is no need for a citation.

Now, off to find that reg (right after a smoke break...lol)

[rentalguy1]

This is definately another clear cut case where the VA doesn't follow it's own regulations. Please fight it, casue you WILL win.

From 38 USC 1154:

(In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full.

and from 38 CFR 4.3:

It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. See §3.102 of this chapter.

and from 38 CFR 3.102:

It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships.

Hope this helps. Good Luck!