1973 Decision Awarding Service Connection

[broncovet]

I am helping a Veteran who has been trying to get his benefits more than 35 years. I saw with my own eyes a 2007 RO decision which states that the 1973 Atlanta RO decision awarding service connection was "in error". Isnt it true that a decision becomes final after one year? Isnt it also true, that, if the VA was trying to prove CUE, that they would have to go through the lengthy process WE have to

I would note that this Vietnam Veteran, who I discussed in other posts (waiting 35 years for benefits from the Cleveland Regional Office), actually had military service AFTER the 1973 letter.

I also saw letters from this Veteran which said the Veteran was waiting a DRO Review in April, 2008.

Since this Veteran has been in contact with Congressman Turner since at least April 2008, it would appear that, in this Veterans instance, contact with this Senator did not help the Veteran. What do you guys think?

I will be seeing this Veteran tommorrow evening, and may be able to post more details at that time.

[carlie]

I am helping a Veteran who has been trying to get his benefits more than 35 years. I saw with my own eyes a 2007 RO decision which states that the 1973 Atlanta RO decision awarding service connection was "in error".

bronco,

If a disability was SC'd in 1973 and has remained SC'd all these years

then not even a CUE on the part of VA would allow it to be severed.

VA can only sever SC after 10 years if there was fraud ON THE PART OF THE CLAIMANT.

jmho,

carlie

10/20 Year Service Connection/Ratings Protection

The 10 year mark for is for service connection. A condition that has been service connected for 10 years can not be severed unless fraud is involved. The clock starts ticking for conditions based on the effective date(s). This does not mean compensation can't be reduced.

The 20 year mark protects ratings. Absent fraud, disability ratings can not be reduced after they have been going 20 years. See your award letter for effective dates on each disability. Combined ratings are also protected after a 20 year period.

Example: You have been rated 50% for Condition A since 1990. You apply for SC for 4 more conditions and VA grants them in 2007. Because of VA granting them your new combined rating is 100% as of 2007. Condition A is protected from severance in the year 2000 and protected from reduction in the year 2010. The new service connected conditions would be protected from severance in 2017 and reduction in 2027. The clock started ticking on your combined 100% in the year 2007 so it would be protected from reduction in the year 2027.

If you apply for an increase for Condition A and are bumped from 50% to 70%, the 50% number is still protected from 1990 but the new 70% would start a new clock ticking (using the dates above). Meaning until you have held that 70% rating for 20 years, the lowest they can reduce you is back to 50% based on the fact that it was in effect for 20 years.

Even if a rater plugged the wrong numbers and wrongly awarded a combined 100%, they still can't reduce. Again, this is all assuming no fraud is involved. You can do the math by using the effective dates on your award letters.

"P&T" can be established at any time regardless of how long ratings have been held (via 100% scheduler or TDIU). If VA plugs all of your conditions and there are no future exams scheduled, then entitlement to Ch. 35 and ChampVA will be granted. If VA determines that there is a chance of improvement, there will be a future exam scheduled and "P&T" will not be established.

[sharon]

Maybe I am reading something into this that is not there, but when did the veteran go back into the military and how long did he stay? He had to be rerated when he came back out of the military.

TITLE 38 - PENSIONS, BONUSES, AND VETERANS' RELIEF

CHAPTER I - DEPARTMENT OF VETERANS AFFAIRS

PART 3 - ADJUDICATION

3.654 - Active service pay.

(a) General. Pension, compensation, or retirement pay will be discontinued under the circumstances stated in 3.700(a)(1) for any period for which the veteran received active service pay. For the purposes of this section, active service pay means pay received for active duty, active duty for training or inactive duty training.

( Active duty. (1) Where the veteran returns to active duty status, the award will be discontinued effective the day preceding reentrance into active duty status. If the exact date is not known, payments will be discontinued effective date of last payment and as of the correct date when the date of reentrance has been ascertained from the service department.

[carlie]

broncovet posted,

" actually had military service AFTER the 1973 letter".

Good catch Sharon - that one flew right past the thing

I'm supposed to have - I think they call it -

a brain. :)

carlie

[deltaj]

I typed in the phrase decision severing service connection into google and came up with all sorts of useful BVA, COVA, and Federal Circuit decisions, regulations, and laws. The government uses that phrase frequently. Let me start by telling you that V.A. General Counsel Precedent Opinion 6-2002 is useful. It mentions 38 USC 1159 and 38 CFR 3.957. Other cases mention 38 CFR 3.105 (d). 38 CFR 3.105 (d) as it exists now mandates that there be clear and unmistakable error in the prior rating decision in order to sever service connection. I suspect there was similar wording of this regulation in 1973 when this decision was made but a copy of the regulation as it existed in 1973 needs to be obtained. I suggest the veteran obtain a copy of his C file and then you both review the rating decision severing service connection was made because of a decision that a clear and unmistakable error was made in granting service connection in the earlier decision. I found several cases where V.A. had used new medical opinions by nontreating doctors who reviewed the prior medical records and used those as a basis for determining that there was clear and unmistakable error in the prior decision which granted service connection. The courts took issue with this practice by V.A. and in several cases I found reversed decisions which severed service connection. I suspect this is because 38 CFR 3.105 (d) uses the term examining physician.

Edited March 28, 2009 by deltaj

[allan]

here's the link to the general councel opinion 6-2002

http://www.va.gov/ogc/docs/2002/PREC_6-2002.doc

[deltaj]

I might be wrong but I think V.A. comp is eliminated while a veteran receiving V.A. comp is on active duty. After military service a new claim needs to be received by V.A. in order for the veteran to receive V.A. compensation again.