Question On Rule Of Law If Any,

[Guest Jim S.]

It has always been a question in my mind, as to how the VA can rule an injury, that is clearly documented as having occured while in the service and having been the reason for the Veterans discharge, at the recommendation of a P.E. Board and/or Medical board, being released from service as unfit for further duty or medicaly discharged for same, whether it be rated as 0% or 100% disableing at time of discharge, should not have been found service connected.

Why then may the VA find the condition as not service connected, without first showing that the disease and/or injury having already been diagnosed and for which veteran was discharged for, was clearly and erroniously in error, before finding that the condition was not deserving of service connection?

Even injuries and diseases that are found to have occured prior to service are protected, if shown to have increased in severity because of and during service. Even a congenital disorder or defect may be found service connected if it's severity is as a result of a service connected disability and can be rule as one disorder.

All I am saying is, if a Veteran is discharge for medical or physical reasons that is listed as a disability within the laws that govern the VA, Why then must the VA say othewise without first finding that the diagnosis was CUE first. Why with out finding CUE in the diagnosis then, that all is left is for them to rate the disability as to its rate of severity for pension and/or compensation.

We all know from personal experience that diseases and injuries we recieved in service, may have been slight at the time but do to facters not contimplated at the time the disease and or injury for which we were discharged for may increase ti have a disabling efftect on our lives.

Should these diseases and injuries be rated as service connected, if only at 0% so that years down the road should these same injuries prove to cause increasing disabilities in our lives, could then be look at for increase, instead of have to prove a claim that should have been service connected, in the first place.

Sorry Guys and Gals, I'm in a misserable funk and I have a nasty Flu like bug I am fighting that makes for to much time for my mind to dwell on things I cannot change or understand.

Jim S. B)

[vaf]

OK, let's take the contentious tone of this down a notch, shall we? Please... We are all on the same side and need each other.

To explain by a particular example, I'll tell you about my husband's experience. He retired from the military with over 20 years served on a medical. He developed a pituitary brain tumor which we discovered after he had put his papers in for a regular retirement, but before he was actually discharged. We stopped the regular retirement process one month before he timed out (which was a major hassle and took U.S. Congressman Jim McCrery's intervention because no one at PEB/MEB would return our phone calls - they wanted the VA to deal with the issue). The pituitary tumor was removed before his discharge, he is now rated at 60% service-connected for the pituitary condition and separately for several residuals of that condition.

We don't think his military service "caused" this condition (unless something is discovered in the future in reference to AO exposure). The fact that he developed this condition while active duty, which necessitated a medical discharge (regardless of the fact that he was leaving the military anyway) made it service-connected and VA-ratable.

Hope that helps.

[Guest Berta]

Vicki- you explained that very well-using your husband's case-

Another way of direct SC involves Presumption for Chronic diseases listed in 38 USC 1112.

It can provide service connection for vets who were diagnosed within a presumptive period (ususally within one year after service if the disability manifested to at least 10% within that same year after service-

I copied the whole list from 38 CFR 3.309- I believe many vet reps often never consider this list for potential SC when looking at claims-

Electronic Code of Federal Regulations (e-CFR)

BETA TEST SITE

e-CFR Data is current as of December 6, 2005

Title 38: Pensions, Bonuses, and Veterans' Relief

PART 3—ADJUDICATION

Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation

Ratings and Evaluations; Service Connection

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§ 3.309 Disease subject to presumptive service connection.

(a) Chronic diseases. The following diseases shall be granted service connection although not otherwise established as incurred in or aggravated by service if manifested to a compensable degree within the applicable time limits under §3.307 following service in a period of war or following peacetime service on or after January 1, 1947, provided the rebuttable presumption provisions of §3.307 are also satisfied.

Anemia, primary.

Arteriosclerosis.

Arthritis.

Atrophy, progressive muscular.

Brain hemorrhage.

Brain thrombosis.

Bronchiectasis.

Calculi of the kidney, bladder, or gallbladder.

Cardiovascular-renal disease, including hypertension. (This term applies to combination involvement of the type of arteriosclerosis, nephritis, and organic heart disease, and since hypertension is an early symptom long preceding the development of those diseases in their more obvious forms, a disabling hypertension within the 1-year period will be given the same benefit of service connection as any of the chronic diseases listed.)

Cirrhosis of the liver.

Coccidioidomycosis.

Diabetes mellitus.

Encephalitis lethargica residuals.

Endocarditis. (This term covers all forms of valvular heart disease.)

Endocrinopathies.

Epilepsies.

Hansen's disease.

Hodgkin's disease.

Leukemia.

Lupus erythematosus, systemic.

Myasthenia gravis.

Myelitis.

Myocarditis.

Nephritis.

Other organic diseases of the nervous system.

Osteitis deformans (Paget's disease).

Osteomalacia.

Palsy, bulbar.

Paralysis agitans.

Psychoses.

Purpura idiopathic, hemorrhagic.

Raynaud's disease.

Sarcoidosis.

Scleroderma.

Sclerosis, amyotrophic lateral.

Sclerosis, multiple.

Syringomyelia.

Thromboangiitis obliterans (Buerger's disease).

Tuberculosis, active.

Tumors, malignant, or of the brain or spinal cord or peripheral nerves.

Ulcers, peptic (gastric or duodenal) (A proper diagnosis of gastric or duodenal ulcer (peptic ulcer) is to be considered established if it represents a medically sound interpretation of sufficient clinical findings warranting such diagnosis and provides an adequate basis for a differential diagnosis from other conditions with like symptomatology; in short, where the preponderance of evidence indicates gastric or duodenal ulcer (peptic ulcer). Whenever possible, of course, laboratory findings should be used in corroboration of the clinical data.

(:) Tropical diseases. The following diseases shall be granted service connection as a result of tropical service, although not otherwise established as incurred in service if manifested to a compensable degree within the applicable time limits under §3.307 or §3.308 following service in a period of war or following peacetime service, provided the rebuttable presumption provisions of §3.307 are also satisfied.

Amebiasis.

Blackwater fever.

Cholera.

Dracontiasis.

Dysentery.

Filariasis.

Leishmaniasis, including kala-azar.

Loiasis.

Malaria.

Onchocerciasis.

Oroya fever.

Pinta.

Plague.

Schistosomiasis.

Yaws.

Yellow fever.

Resultant disorders or diseases originating because of therapy administered in connection with such diseases or as a preventative thereof.

© Diseases specific as to former prisoners of war. (1) If a veteran is a former prisoner of war, the following diseases shall be service connected if manifest to a degree of disability of 10 percent or more at any time after discharge or release from active military, naval, or air service even though there is no record of such disease during service, provided the rebuttable presumption provisions of §3.307 are also satisfied.

Psychosis.

Any of the anxiety states.

Dysthymic disorder (or depressive neurosis).

Organic residuals of frostbite, if it is determined that the veteran was interned in climatic conditions consistent with the occurrence of frostbite.

Post-traumatic osteoarthritis.

Atherosclerotic heart disease or hypertensive vascular disease (including hypertensive heart disease) and their complications (including myocardial infarction, congestive heart failure, arrhythmia).

Stroke and its complications.

(2) If the veteran:

(i) Is a former prisoner of war and;

(ii) Was interned or detained for not less than 30 days, the following diseases shall be service connected if manifest to a degree of 10 percent or more at any time after discharge or release from active military, naval, or air service even though there is no record of such disease during service, provided the rebuttable presumption provisions of §3.307 are also satisfied.

Avitaminosis.

Beriberi (including beriberi heart disease).

Chronic dysentery.

Helminthiasis.

Malnutrition (including optic atrophy associated with malnutrition).

Pellagra.

Any other nutritional deficiency.

Irritable bowel syndrome.

Peptic ulcer disease.

Peripheral neuropathy except where directly related to infectious causes.

Cirrhosis of the liver.

(Authority:

38 U.S.C. 1112(B))

(d) Diseases specific to radiation-exposed veterans. (1) The diseases listed in paragraph (d)(2) of this section shall be service-connected if they become manifest in a radiation-exposed veteran as defined in paragraph (d)(3) of this section, provided the rebuttable presumption provisions of §3.307 of this part are also satisfied.

(2) The diseases referred to in paragraph (d)(1) of this section are the following:

(i) Leukemia (other than chronic lymphocytic leukemia).

(ii) Cancer of the thyroid.

(iii) Cancer of the breast.

(iv) Cancer of the pharynx.

(v) Cancer of the esophagus.

(vi) Cancer of the stomach.

(vii) Cancer of the small intestine.

(viii) Cancer of the pancreas.

(ix) Multiple myeloma.

(x) Lymphomas (except Hodgkin's disease).

(xi) Cancer of the bile ducts.

(xii) Cancer of the gall bladder.

(xiii) Primary liver cancer (except if cirrhosis or hepatitis B is indicated).

(xiv) Cancer of the salivary gland.

(xv) Cancer of the urinary tract.

(xvi) Bronchiolo-alveolar carcinoma.

(xvii) Cancer of the bone.

(xviii) Cancer of the brain.

(xix) Cancer of the colon.

(xx) Cancer of the lung.

(xxi) Cancer of the ovary.

Note: For the purposes of this section, the term “urinary tract” means the kidneys, renal pelves, ureters, urinary bladder, and urethra.

(Authority: 38 U.S.C. 1112©(2)).

(3) For purposes of this section:

(i) The term radiation-exposed veteran means either a veteran who while serving on active duty, or an individual who while a member of a reserve component of the Armed Forces during a period of active duty for training or inactive duty training, participated in a radiation-risk activity.

(ii) The term radiation-risk activity means:

(A) Onsite participation in a test involving the atmospheric detonation of a nuclear device.

(B) The occupation of Hiroshima or Nagasaki, Japan, by United States forces during the period beginning on August 6, 1945, and ending on July 1, 1946.

© Internment as a prisoner of war in Japan (or service on active duty in Japan immediately following such internment) during World War II which resulted in an opportunity for exposure to ionizing radiation comparable to that of the United States occupation forces in Hiroshima or Nagasaki, Japan, during the period beginning on August 6, 1945, and ending on July 1, 1946.

(D)(1) Service in which the service member was, as part of his or her official military duties, present during a total of at least 250 days before February 1, 1992, on the grounds of a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or the area identified as K25 at Oak Ridge, Tennessee, if, during such service the veteran:

(i) Was monitored for each of the 250 days of such service through the use of dosimetry badges for exposure at the plant of the external parts of veteran's body to radiation; or

(ii) Served for each of the 250 days of such service in a position that had exposures comparable to a job that is or was monitored through the use of dosimetry badges; or

(2) Service before January 1, 1974, on Amchitka Island, Alaska, if, during such service, the veteran was exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests.

(3) For purposes of paragraph (d)(3)(ii)(D)(1) of this section, the term “day” refers to all or any portion of a calendar day.

(iii) The term atmospheric detonation includes underwater nuclear detonations.

(iv) The term onsite participation means:

(A) During the official operational period of an atmospheric nuclear test, presence at the test site, or performance of official military duties in connection with ships, aircraft or other equipment used in direct support of the nuclear test.

(B) During the six month period following the official operational period of an atmospheric nuclear test, presence at the test site or other test staging area to perform official military duties in connection with completion of projects related to the nuclear test including decontamination of equipment used during the nuclear test.

© Service as a member of the garrison or maintenance forces on Eniwetok during the periods June 21, 1951, through July 1, 1952, August 7, 1956, through August 7, 1957, or November 1, 1958, through April 30, 1959.

(D) Assignment to official military duties at Naval Shipyards involving the decontamination of ships that participated in Operation Crossroads.

(v) For tests conducted by the United States, the term operational period means:

(A) For Operation TRINITY the period July 16, 1945 through August 6, 1945.

(B) For Operation CROSSROADS the period July 1, 1946 through August 31, 1946.

© For Operation SANDSTONE the period April 15, 1948 through May 20, 1948.

(D) For Operation RANGER the period January 27, 1951 through February 6, 1951.

(E) For Operation GREENHOUSE the period April 8, 1951 through June 20, 1951.

(F) For Operation BUSTER-JANGLE the period October 22, 1951 through December 20, 1951.

(G) For Operation TUMBLER-SNAPPER the period April 1, 1952 through June 20, 1952.

(H) For Operation IVY the period November 1, 1952 through December 31, 1952.

(I) For Operation UPSHOT-KNOTHOLE the period March 17, 1953 through June 20, 1953.

(J) For Operation CASTLE the period March 1, 1954 through May 31, 1954.

(K) For Operation TEAPOT the period February 18, 1955 through June 10, 1955.

(L) For Operation WIGWAM the period May 14, 1955 through May 15, 1955.

(M) For Operation REDWING the period May 5, 1956 through August 6, 1956.

(N) For Operation PLUMBBOB the period May 28, 1957 through October 22, 1957.

(O) For Operation HARDTACK I the period April 28, 1958 through October 31, 1958.

(P) For Operation ARGUS the period August 27, 1958 through September 10, 1958.

(Q) For Operation HARDTACK II the period September 19, 1958 through October 31, 1958.

® For Operation DOMINIC I the period April 25, 1962 through December 31, 1962.

(S) For Operation DOMINIC II/PLOWSHARE the period July 6, 1962 through August 15, 1962.

(vi) The term “occupation of Hiroshima or Nagasaki, Japan, by United States forces” means official military duties within 10 miles of the city limits of either Hiroshima or Nagasaki, Japan, which were required to perform or support military occupation functions such as occupation of territory, control of the population, stabilization of the government, demilitarization of the Japanese military, rehabilitation of the infrastructure or deactivation and conversion of war plants or materials.

(vii) Former prisoners of war who had an opportunity for exposure to ionizing radiation comparable to that of veterans who participated in the occupation of Hiroshima or Nagasaki, Japan, by United States forces shall include those who, at any time during the period August 6, 1945, through July 1, 1946:

(A) Were interned within 75 miles of the city limits of Hiroshima or within 150 miles of the city limits of Nagasaki, or

(B) Can affirmatively show they worked within the areas set forth in paragraph (d)(4)(vii)(A) of this section although not interned within those areas, or

© Served immediately following internment in a capacity which satisfies the definition in paragraph (d)(4)(vi) of this section, or

(D) Were repatriated through the port of Nagasaki.

(Authority: 38 U.S.C. 1110, 1112, 1131)

(e) Disease associated with exposure to certain herbicide agents. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of §3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of §3.307(d) are also satisfied.

Chloracne or other acneform disease consistent with chloracne

Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes)

Hodgkin's disease

Chronic lymphocytic leukemia

Multiple myeloma

Non-Hodgkin's lymphoma

Acute and subacute peripheral neuropathy

Porphyria cutanea tarda

Prostate cancer

Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea)

Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma)

Note 1: The term “soft-tissue sarcoma” includes the following:

Adult fibrosarcoma

Dermatofibrosarcoma protuberans

Malignant fibrous histiocytoma

Liposarcoma

Leiomyosarcoma

Epithelioid leiomyosarcoma (malignant leiomyoblastoma)

Rhabdomyosarcoma

Ectomesenchymoma

Angiosarcoma (hemangiosarcoma and lymphangiosarcoma)

Proliferating (systemic) angioendotheliomatosis

Malignant glomus tumor

Malignant hemangiopericytoma

Synovial sarcoma (malignant synovioma)

Malignant giant cell tumor of tendon sheath

Malignant schwannoma, including malignant schwannoma with rhabdomyoblastic differentiation (malignant Triton tumor), glandular and epithelioid malignant schwannomas

Malignant mesenchymoma

Malignant granular cell tumor

Alveolar soft part sarcoma

Epithelioid sarcoma

Clear cell sarcoma of tendons and aponeuroses

Extraskeletal Ewing's sarcoma

Congenital and infantile fibrosarcoma

Malignant ganglioneuroma

Note 2: For purposes of this section, the term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset.

(Authority: 38 U.S.C. 501(a) and 1116)

[41 FR 55873, Dec. 23, 1976 and 47 FR 11656, Mar. 18, 1982, as amended at 47 FR 54436, Dec. 3, 1982; 49 FR 47003, Nov. 30, 1984; 53 FR 23236, June 21, 1988; 54 FR 26029, June 21, 1989; 57 FR 10426, Mar. 26, 1992; 58 FR 25564, Apr. 27, 1993; 58 FR 29109, May 19, 1993; 58 FR 41636, Aug. 5, 1993; 59 FR 5107, Feb. 3, 1994; 59 FR 25329, May 16, 1994; 59 FR 29724, June 9, 1994; 59 FR 35465, July 12, 1994; 60 FR 31252, June 14, 1995; 61 FR 57589, Nov. 7, 1996; 65 FR 43700, July 14, 2000; 66 FR 23168, May 8, 2001; 67 FR 3615, Jan. 25, 2002; 67 FR 67793, Nov. 7, 2002; 68 FR 42603, July 18, 2003; 68 FR 59542, Oct. 16, 2003; 69 FR 60089, Oct. 7, 2004]

[Jay Johnson]

Berta,

Thank you. That was a mature, civil way of correcting someone's post.

If you want to provide "constructive criticism" then you address what was said that is wrong, give reasons why it is wrong and move on. A reply like "well you were partially right in that not all illnesses in the military are service connected, but chronic diseases such as cancer are typically service connected regardless of military nexus......here's the regulation that cites some of the diseases that fall into this category.......". This is how you constructively criticize someone.

P.S. - I have no problem being corrected, but I do take issue when an individual sends me PM(s) stating 1) stop responding in political forum...2) no, really, stop responding to roger in the political forum...3) You need to watch what you say in the vet's forums....then goes on to tell me how I am not giving good advice in several back to back responses to me in two different threads. There's a line and YOU crossed it. (oh yeah, you also corrected one of my posts for grammar)

P.P.S. - Calling me immature, yet again, isn't helping the situation.

[Jay Johnson]

Keep up the fight, and try not to let anything someone might say or ensenuate get under your skin, Their are days I want to lash out and it isn't necessarily anyones fault, It has to do more with my problems and the medications I take or even how I feel when I get out of bed in the morning. Waiting to hear that their is movement in your claim process seems to depress me more and highten my anxiety more than anything else.

Keep on posting,

Jim S. :)

Thanks jim.....This isn't really the time of year to push my buttons:-) The wife has seasonal depression linked to issuse that occured right before and after christmas while in the military. What is normally really bad is ten times worse during this time of year and I'm doing everything I can to keep her out of a mental hospital during christmas. If my responses seem a bit blunt, then please keep this in mind...I know it's not an excuse though <shrug>.

[hjunker]

I see this may be a dead subject but couldn’t help from responding after reading it this morning. I don’t understand how someone could be providing advice to fellow veterans and fail to understand the basic principle that: “““Veterans may be entitled to VA disability compensation for ANY MEDICAL CONDITION or injury that was incurred in or aggravated by their military service if they were released from active military duty with anything other than a dishonorable discharge.”””

For someone to say this: “““For example, one could come down with cancer while in the military and said cancer could lead to a medical discharge, but that doesn't mean the military "caused" the cancer in the first place””” suggest lack of understanding of the above. Then follow up with: “I'm a nurse by profession, so please don't talk down to me about cancer. Cancer is not CAUSED by the military and to insinuate otherwise is lunacy “ would suggest the need the for additional training. Tell that to the thousands who participated in nuclear testing and tell that to other service members who have occupations or exposures to cancer causing agents.

Service members are exposed to some of the most horrific conditions in the world. Some service members have been inadvertently exposed to health robbing conditions long before the general public or medical science suggest the exposure is a health risk. Some must be exposed to such conditions under emergency conditions due to spontaneous responses to accidents or other world events. Responders should not become offended with more experienced members when they point out others limited knowledge of qualifying disabilities. In this case and other causes, it doesn’t matter if the Cancer was caused by military service, the premise that the military caused the cancer or aggravated the cancer will apply and the evidence would provide the degree of compensation.

If I receive advice form a lawyer for several complicated issues and then one day I mention the constitution and the lawyer say he has no knowledge of said document, I would suspect all his previous advice. That said, why would someone come here to provide advice or to assist vets in obtaining benefits and fail to understand the above basic premise that the service member entered service WHOLE and discharged broken in some way? Congress said they would pay for the broken parts.

[10thFO]

I could care less about the pissing contest going on here. I'll add my .02 right now though.

Did the military cause my bad back? No not really but they did admit me when I passed the fall on your knees test at the Richmond Virginia induction place. I also kicked arse through basic and advanced training. But theorectically my back problems are from family issues???? Yeah right, I guess that's why the military subcumbed to the fact (after a year of me bitching) that it was actually caused by a fall in Haiti with a 180# ruck on my back off of a 5 ton while conducting night manuevers. Now maybe to Mr. Buyer this wasn't combat, but as far as I can tell I wasn't in Haiti on a freaking training mission. Later evidence may prove me wrong, but all I know is that I got off of the U.S. Eisenhower (which happens to be nuclear powered) I didn't know any better, after all I went in locked an loaded with a 48 Hours news crew right behind me off of the Blackhawk.

But to be honest, I really don't care, my PTSD is what get's me down most days and that was from Somalia, but then again, I guess Mr. Buyer doesn't consider that combat either.

Bottom line is this, all my injuries in the military happened during and "because" of my tenure in the military. Not to say maybe I wouldn't have hurt my back sitting in a chair, but I'm trying to be, well realistic here.

People here offer up good advice. If you didn't learn this in the military then maybe you should shake out the cobwebs. Screw me once, shame on you. Screw me twice, shame on me. It's not the military's, or the gov'ts place to take care of you. so learn for yourself and protect your rights.

All advice given here is given with a Caveat Emptor, or "Buyer Beware". Take it or leave it but don't bitch about it or put others down. We don't need pissing matches on this website. There are enough people trying to stick it to Vets without us knocking each other down.