Help - Help

[carlie]

OK - the way I've always understood this is :

To establish service connection, the record must contain:

(1) medical evidence of a current disability,

(2) medical evidence, or in certain circumstances, lay testimony, of in-

service incurrence or aggravation of an injury or disease,

and

(3) medical evidence of a nexus between the current

disability and the in-service disease or injury.

In other words, entitlement to service connection for a particular

disability requires evidence of the existence of a current

disability and evidence that the disability resulted from a

disease or injury incurred in or aggravated during service.

BUT...........

A notice of denial I got from VARO dated Nov 15, 1978 states:

Your disability compensation claim has been carefully considered.

To establish entitlement to this benefit, the evidence must show:

(a) that you have a disability incurred or aggravated in service,

in line of duty; and (b) must be 10 percent or more disabling.

Question:

Does anyone know if this was truly the correct criteria for establishing

service connection in 1978 - that a disability had to be 10 percent or more disabling ?

Still preparing for BVA Hearing this Friday AM.

Thanks,

carlie

Edited September 16, 2009 by carlie

[Pete53]

Carlie:

My prayers and best wishes on your Friday encounter with the VA

[broncovet]

I think the post by "hurryupandwait" has some very good stuff. That is, it is possible to present a CUE for an incorrect disability rating percentage. I always thought that a rating percentage is a judgement call, and not subject to attack by CUE. However, there are certain criteria, and if you look closely at the rating criteria, you can sometimes find CUE as in this post.

However, I must ask another question, that the legal eagles may be able to answer. Is a General Council Precedent binding on the court, that is, of course, unless the General counsel Precedent has not been updated or even eliminated, in some cases? In other words can you cite this Precedent, expecting the court to concur, similar to the way you may cite a Precedential CAVC or Federal court case.

[cowgirl]

Carlie, okay, you'll do fine. I see the code 8045 you listed. IF thats the code the VA should have assigned in the first place? when does it show correctly, if ever, in your records for sc? does the code on the rating sheet and decision letter match? How about the title? Did that ever change later? Well, don't answer me - you go get em.

For example, one of my sc conditions was listed correctly by a raters 'subcategorized' title and but correct code. But, the stupid title in front of the code kept my sc 0% for years and more. The rater, I or my vso didnt look further and I thought the ship sunk at that. A doctor saw through the 'haze' years later, the facts I needed saying the title read wrong for the condition.

SO, I had to clarify, SHOW the details spelled out one word and a number at a time, exhibits from my SMRs VA records - what could have been a CUE was a EED.

Go for it, your're on, I got yer back. and if ya need to - make a powerpoint slide showing the code and description, records, side by side, year by year, may help.

Cg'up209!

[carlie]

What I posted earlier in the thread was the notification letter I

had received from the VARO.

I'm going to try and post the actual rating decision from 1978 in here

and then come back in the thread by the edit feature and add more info.

I am sorry these decisions posted so big I know it makes them a bit harder

to read. I thought by saving them under low quality that would make them

post smaller - but apparently this is not the case.

Remember in 1978 DC 8045 provided a 10 % rating for subjective

headaches due to brain trauma.

The rater never even went to diagnostic codes, he pre-maturely denied

everything stating "not found on last examination".

If you notice all claimed disabilities were denied as not found on last examination.

Ha - Ha what a joke. Maybe down the road when things settle down I might file a C&UE

on the denial for neck condition (as not shown on last exam) as the exam showed

limitation of motion due to pain and muscle spasms.

I want to thank everyone so mush for any help, guidance

and all of the well wishes for success.

I guess like many, my nerves get all rattled up going to any kind

of hearing or legal proceeding, I'm real shy talking to more than

a person or two at a time.

carlie

Edited September 17, 2009 by carlie

[Ricky]

I came in kinda late but good luck and knock them dead. And to this: I'm real shy talking to more than

a person or two at a time. I say just close them eyes and pertend you are a typing away at the computer on Hadit, cause shy here at Hadit you are not!!!!!!!! hahahahaha

[Ricky]

Carlie, you have all of the points. I would just simply present it in this manner as it is a bit more logical in that it provides the legal deficiency first, the background outlining the evidence of the claim, how the cue came about, how it hurt you and what you want done. This is what a cue has to have in it. If you have not filed it yet then I would send it in this form. If you are going to present it at a hearing I would read it slowly into the record as is and provide a written copy to be entered into your file.

Hope this helps you a bit. Maybe others will chime in on my recommendation. Good Luck.

ISSUE:

You have to state up front the legal deficiency that caused the cue (note delete my ital notes)

Clear and Unmistakable Error on Rating Decision dated 10/31/1978 in which the statutory and regulatory provisions extant at the time of the decision were incorrectly applied resulting in the denial of my request for service connection of headaches due to a head trauma (concussion) resulting from my active duty service from _______ to _________.

You need to add basic back ground here such as:

As evidenced in my SMR’s dated_________ and present in my VA Claims File at the time of the 10/31/1978 rating I suffered a concussion due to ________________. Also available to the rater were SMR’s dated_________, ___________, and ___________ add as many dates as needed providing that I sought medical attention for my headaches and dizziness which provide that I received treatment for headaches and dizziness which were attributed to my concussion.

31 July 1978, less than two months after my release from active duty, My VA form 21-526 was submitted to the VA. On this 21-526 I listed and requested service connection for my headaches due to an in service concussion.

13 October 1978, a VA medical Examination for Disability Evaluation was conducted as evidenced by VA Form 21-2545, Dated 13 October 1978 and signed by Rafael Santayna, M.D. The VA Form 21-2545 provided the following:

Box 17 – PRESENT COMPLAINT S

1) Pain in back of the neck

2) Low back pain

3) Hearing loss

4) Headache and dizziness

Box 46 – DIAGNOSIS

1) Otitis media and hearing loss.

2) Concussion – headaches and dizziness.

3) Lumps on neck, nor present at time of examination.

4) Neck condition, mild spasms in muscles of neck and some limitation of motion,

5) Pending X-ray.

6) Low back condition, pending X-ray.

On 31 October 1978 a rating decision was made on my claim for headaches and dizziness. Although the rater provided in the decision in Block 5 an incorrect last date of examination (listed as 5 October 1978), he did state in the findings that treatment for both headaches and post concussion syndrome were shown in my service medical records on __________, ___________ and ___________. Once again add as many dates as you need

However, he continued in the rating decision and denied my claim. He made no mention of the 13 October 1978 VA Medical Examination which provided a diagnosis of “ Concussion – headaches and dizziness”. He simply used as his reasons for denial the words “Not found on last examination” which is completely unfounded as the evidence shows.

Based upon the above evidence the rater failed to apply and/or incorrectly applied the provisions of CFR 38, Sec. 4.124a Schedule of ratings--Neurological Conditions and Convulsive Disorders, Rating Disability Code 8045, Brain disease due to trauma which provides that purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under diagnostic code 9304.

If it had not been for this Clear and Unmistakable Error committed by the rater of failing to comply with the provisions of CFR 38, Sec. 4.124a, Disability rating code 8045 I would have been awarded a 10 percent disability rating for my headaches and dizziness due to Concussion (Brain Trauma) effective the date of my release from active duty.

Therefore, I request that the board correct this Clear and Unmistakable Error and favorably adjudicate my claim by awarding me a 10 percent rating under Disability Rating Code 9304 effective ____________.

Edited September 17, 2009 by Clown Man