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Please - Need Advice On Filed Claim

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I'll try to keep this as brief as possible but I'm looking for any advice out there on how my claim will likely be handled.

I was medically discharged in 91 with 20% - 10% right knee and 10% back (herniated disc). In my SMR's there is further notation of medical care for my left knee and hearing test (for which I requested) that states 'soldier demonstrates hearing loss and needs further evaluation'. Neither hearing nor left knee was approved for disability at time of discharge. I filed a new claim to add the hearing and left knee in 2003, with requests to increase the back and right knee due to my conditions progressing. I was denied and without proper guidance, did not file an appeal. I have resubmitted my claim in March of this year and based upon follow up last week, was informed it had gone through the rating board and was approved. During the follow up stages, I received comments that made me even more curious of the outcome --Initially, I contacted the 1-800 # and the rep informed me that the rating board was finished and it had been sent for approval, indicated 'yours will have to be looked at closely' -- not sure what she was trying to say. At that time, I contacted my rep at the regional office who confirmed it was up for approval but he could not see the file but was informed it was 'promising'. This previous Friday is when I confirmed with the 1-800# that approval had been completed earlier in the day but the computer was not updated yet with the details. He went on to inform me that back pay is quick if you are on direct deposit (which I am). I feel it sounds promising but some of you may have experienced this before without a good outcome. Advice?

Background - I included lengthy documentation from my SMR and reports from my personal physicians. For my back, the MRI states multilevel spondylosis with degenerativ disc disease. Based upon various responses on your site, it sounds like they will sustain my 10% rating with no further increase. However, wouldn't spondylosis (arthritis of spine) be a result of the prior injury (heniated disc that was combat related) and be considered for a secondary rating?

My hearing tests both recently and in my SMR reflect tinnitus and hearing loss. Would they not owe me back to 1991? Someone at the 1-800 # indicated it would only go back to my claim in March of this year (if approved) as I did not appeal it in 1991 or 2003. My thought is there was an error on the Army's part. Would that be a CUE?

Same for my left knee? CUE?

Further records show osteoarthritis and cartilage wear in both my left and right knee. How would that be considered? And, do they give you a rating for each knee or combined?

Although I did not claim either, I have been diagnosed as type II diabetic and bipolar. I made reference to the fact I cannot exercise which does not aid in losing weight and improving my diabetes. Should I have claimed it as a secondary condition?

Sorry to be so lengthy but want to be prepared in advance of the outcome. I'm certainly ready this time to fight if necessary.

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If you filed a past VA claim for the hearing loss and prior back injury which was denied and then not appealed -this reg below might apply to you and perhaps this is a basis for a CUE claim-

but we cant CUE the Army-

they (VA)could be actually be cueing their 2003 decision themselves -

If they dont give you 2003 date as EED- you could raise CUE on that-I am sure- based on what I see here-

"Further records show osteoarthritis and cartilage wear in both my left and right knee. How would that be considered? And, do they give you a rating for each knee or combined?"

They will surely combine this as a bilateral rating-

"Although I did not claim either, I have been diagnosed as type II diabetic and bipolar. I made reference to the fact I cannot exercise which does not aid in losing weight and improving my diabetes. Should I have claimed it as a secondary condition? "

If you are not in country Vietnam vet ( DMII is presumptive to Agent Orange)-by all means claim these disabilities too as you raised a good argument-

your service connected conditions have aggravated a NSC condition-

but if there is chance for direct SC on the diabetes -claim it that way too-a vet can raise any potential reason or more reasons for service connection.

Is there any nexus at all between your bi polar and your service?if so claim that too- I would wait until you get the award on what you have there now and then if you need to file NOD on the EED you can add these claima issues.

Are you able to work with these conditions?

"wouldn't spondylosis (arthritis of spine) be a result of the prior injury (heniated disc that was combat related) and be considered for a secondary rating?" if a doctor says it and it's documented this would play into the SC rating you have -as secondary-if it is at a ratable level-

"(q) New and material evidence (§3.156) other than service department records —(1) Received within appeal period or prior to appellate decision. The effective date will be as though the former decision had not been rendered. See §§20.1103, 20.1104 and 20.1304(B)(1) of this chapter

Title 38: Pensions, Bonuses, and Veterans' Relief

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Section Contents

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

From 3.400 (q) 2006


§ 3.156 New and material evidence.


(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(B) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(B)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

© Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph © of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph ©(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph ©(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))Cross References:

Effective dates—general. See §3.400. Correction of military records. See §3.400(g).

[27 FR 11887, Dec. 1, 1962, as amended at 55 FR 20148, May 15, 1990; 55 FR 52275, Dec. 21, 1990; 58 FR 32443, June 10, 1993; 66 FR 45630, Aug. 29, 2001; 71 FR 52457, Sept. 6, 2006]"

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Thanks so much Berta for the input, I was hoping you would pick this one up.

The tinnitus and hearing loss was denied in 1991 and 2003. Would they not have to go back to 1991? Would the VA recognize this and maybe go ahead with backpay? The dialogue between me and their offices does seem favorable in some way....could just be ratings though or bs for me to go on.

This is going to sound really ignorant on my part, but what exactly do we mean by bilateral rating for my knees? My assumption would be seperate ratingx...?

No I was not in Vietnam and I will definately seek a claim for my diabetes. Initially I thought I would go ahead and include it but was concerned they would think I was being overly aggressive which could hurt my case. Any chance the VA may go ahead and recognize this without the need of a another claim? They have been treating me for this at least 2-3 years.

My bipolar was diagnosed in 1998. For anyone out there with bipolar knowledge, it is a disorder that is apparent from childhood up but goes undiagnosed -- often never diagnosed. There is nothing recorded in my records but I did seek medical care at one point for my temper and depression. I was told 'just divorce your wife and everything will be okay'. Unfortunately, I was not able to locate anything in my SMR to substantiate my visit on this topic.

Yes, I'm currently working and actually want to continue as long as possible. That's not to say it hasn't been difficult at times. At the very minimum, I hope to get a rating of 50% as this would cover my extensive co-pays. 100% employable would be wonderful but I don't think likely.

Thanks again Berta!

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I forgot to ask if they would rate osteoarthritis for my knees as a rating seperate from the cartilage wear or are they combined?

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Not sure on that one-I think it is all combined in the rating-not sure- others here will chime in-

"The tinnitus and hearing loss was denied in 1991 and 2003. Would they not have to go back to 1991? Would the VA recognize this and maybe go ahead with backpay"

If they were at ratable level then (and obviously they were)the VA could CUE itself on the old decisions- it is difficult to expect them too- and there might be more to the older decisions than we are discussing here- still- if they dont go that far back- when you get the award -I am sure you would have a good basis for a CUE claim.

The claim would have to be legal error as to not giving you the proper diagnostic code and ratings at the time of the denials.

Once a medical problem is documented- then only the legal evidence is considered for CUE.If they give wrong diagnosic code and thus wrong rating- and it cost you $$$$ in retro -that is a CUE.

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You bet Carlie-

see Bentley V Derwinski, and VBM (NVLSP) 2007 edition pages 1052 to 1056-

Also one of my favorites- CUE due to failure to assign proper %-

Myler V Derwinski-

retro back to 1953- I posted Myler at least twice before here and should be at hadit under a search

This is wht one of my CUE claims is based on.

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