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

[Berta]

Broncovet asked:

"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."

A vet can certainly use any unchanged General COunsel Opinion to support any legal premise in their claim.

I attached one to my CUE claim for SMC.

The VA was trying to say Sec 1151 disabilities don't fall under SMC guidelines.

I used a VA OGC pres op that supports that they do,

I also used reference to a local vet whose claim I helped him win -he got 100% P & T and SMC under Section 1151,

I used SMR considerations and guidelines in M21-1, and I used a bunch of other legal stuff,

whatever it takes.

Often a GC Precedent Opinion arises with a legal question presented as to a specific veteran's issue.

The opinion however can apply to almost any veteran similiarly situated.

ROs might ignore OG Pres Ops attached to claims.

The BVA however will read them.

Sometimes the BVA refers to OGC Pres Ops in their decisions.

Edited September 17, 2009 by Berta

[Berta]

forgot to add the three Prongs of CUE-

years ago they called them prongs- the BVA says it differently here-"three part test":

The three-part test to determine CUE requires the claimant to

show that: (1) "[e]ither the correct facts, as they were

known at the time, were not before the adjudicator (i.e.,

more than a simple disagreement as to how the facts were

weighed or evaluated) or the statutory or regulatory

provisions extant at the time were incorrectly applied," (2)

the error must be "undebatable" and of the sort "which, had

it not been made, would have manifestly changed the outcome

at the time it was made," and (3) a determination that there

was CUE must be based on the record and law that existed at

the time of the prior adjudication in question. Damrel v.

Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v.

Principi, 3 Vet. App. 310, 313-14 (1992) (en banc));

Wilson v. West, 11 Vet. App. 383, 386 (1998).

As long as a CUE covers those three bases and defines the legal error or errors-

it can succeed.

[broncovet]

Berta..

I guess the reason I asked is that I know some court cases set a precedent, while others do not. It is unclear to me which cases I can cite, and which ones the CAVC, for example will ignore. I think the CAVC will pretty much ignore what a BVA said, but, of course, will comply with what the Supreme court says. Is there such a thing as a precedential OGC opinion..how about non precedential OGC opinion?

[carlie]

Here I sit still trying to make everything perfect.

Sure wish I had better computer skills.

carlie

[deltaj]

ISSUE:

Claim of Clear and Unmistakable on Rating Decision dated 10/31/1978,

In failure to grant service connection for headaches.

VA form 21-526 filed July 31, 1978 – less than two months after separation.

The 21-526 listed headaches and concussion as two of the several disabilities

listed on this form, for service connection.

Rating Decision dated 10/31/1978 states

Entered active duty:

Released active duty:

Rating Decision dated 10/31/1978 states:

Block 5 - Date of last examination 10-5-78

The findings on this rating decision show both headaches and post concussion syndrome

as shown in service medical records and provides the dates for both as such.

The 10/31/1978 Rating decision states that the reason for denial of headaches is,

“Not found on last examination”.

There is a record in the claims file :

VA form 21-2545 – Report of Medical Examination for Disability Evaluation

signed on 10/13/1978, signed by Rafael Santayna, M.D.

Box 17 – PRESENT COMPLAINT (symptoms only, not diagnosis)

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.

This report is not mentioned anywhere in the Rating Decision dated 10/31/1978.

I do not see anywhere in this rating decision where the VA form 21-2545 was ever before the adjudicator.

Diagnostic Codes are assigned as evaluation criteria for disabilities.

Separate diagnostic codes identify the various disabilities.

In 1978 Diagnostic Code 8045 provided:

8045, purely subjective complaints of headaches, recognized

as symptomatic of brain trauma, will be rated 10 percent and

no more under Code 9304. This 10 percent rating will not be

combined with any other rating for a disability due to brain

trauma. Ratings in excess of 10 percent for brain disease

due to trauma under Code 9304 are not assignable unless a

diagnosis of multi-infarct dementia associated with brain

trauma is made. 38 C.F.R. Part 4, Code 8045 ).

It is my contention that had the regional office, bothered to apply the schedule of rating disabilities, that was in effect at the time of this rating decision, to all of the medical evidence, an award of direct service connection for headaches under diagnostic code 8045 was clearly in order at the time the 10/31/1978 Rating Decision was promulgated.

38 CFR 3.303, 38 CFR 3.400, 38 CFR 3.105 (a), 38 USC 5110

The decision maker did not even ever get to the point of considering any statutory or regulatory provision for Diagnostic Code 8045 extant at the time of this rating decision

due to pre-maturely denying headaches and stating, headaches denied, not found on last examination. Evidence of headaches are clearly shown as present complaints.

The evidence of record at the time this decision was made clearly demonstrates

that my subjective complaints of headaches were recognized by medical evidence

as symptomatic of brain trauma, resulting from my military service.

But not for this error the result would have been manifestly different.

But not for this error service connection would have been granted, I would

have been in receipt of compensation at 10 percent and secured an effective date

of 7/31/1978, day following separation, for headaches.

My argument for clear and unmistakable error is not based on any weighing of the evidence or incorrect application of the statutory or regulatory provisions extant at the time of this rating decision, any difference of opinion nor presumptive conditions rating criteria.

Shouldn't that phrase be "at least a 10% rating."

[cowgirl]

deltaj, good catch, (cgho) do state something to the likes of requesting disability compensation rating of at least the minimum 10% shown in the rating schedule.(feed their own words back to them?)

No wriggle room. Wriggle reminds me, my neck gets stiff driving sometimes and thats a danger in itself for instant reflexes and safety. Love my truck mirrors!!

Best thoughts Carlie!

Cg'up2009!