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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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carlie

Reconciliation Of Moody V. Principi, 360 F.3d 1306 (fed. Cir. 2004), And Case Law On Cue Claims

Question

Department of Memorandum

Veterans Affairs

Date: May 28, 2004 VAOPGCPREC 4-2004

fillin "Please type the 'Date' line information."

From: General Counsel (022)

Subj: Reconciliation of Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004), and Case Law on CUE Claims

To: Chairman, Board of Veterans

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Thanks Carlie - saved it for further study.

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I hope I am using the correct place for help,if not I am sorry.Thank you for any help.I got one of the nehmer lrtters and replyed to it and got a denial. That is what I expected but I was thinking maybe the would consider my claim for other conditions.When they sent my records back they only sent two dd 214 and I sent four. Also they told me on phone that they had all four.But on the page where they listed evidence they only listed two.I just cannot understand this.They acknowledge that I sent a statement of military service showing all four periods of service.They call it a document which it is, it is not just a statement from me.They also kept the statememt in support of claim.I had 11 service connected conditions and 14 secondary.They also kept all four dd214.On last page of denial they stated...".You contend on your statements received on 14 Feb.2011 that you served on the dmz in Korea.This review is based solely on in country service in viet nam. The va regional office in your home state will make another determination regarding service connection for your heart conditions based on your service in Korea."Does this mean they will automati

caly do that?

Another Question Please. In 2001 I was denied service connection for four conditions.In this letter they also said they did not have the dd 214 for the last two periods.In 2004 I was granted !00% non service connected pension.Again no record of last two periods of service.In the service connected claim I submitted four conditions Hypertension,Heart flutters-PVC's,chronic anxiety,copd,.In the anaylis of the denial they acknowledge that I sumitted evidence showing I was diagnosed with these conditions and dates during last two periods of service.In the analysis of all four they say they neither occured in or was caused by military serviceI SUSPECT the reason they denied them was because of no dd214's but that is not what they said.Word for word in the anaylis of all four they say (Servication may be granted for a disability which began in military service or or was caused by some event or experience in service.Service connection for...... is denied since this condition neither occured in nor was caused by service.) I type with one finger but I have finally arrived at the question! Do I at this point have any standing for cue or anything else? At the beginning of the anaylis they stated that the veterans service medical records were requested from the national personnel records center on March 3,2000.NPRC advised that they mailed the records on August 4 ,2000,but they have not been received.If they are subsequently received,the claim will be reconsidered with date of claim protection.I have found records I had to support all thtclaims ,plus some I think came from St Lewis. Thank you for any Advice ,opion etc. Walt

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"You contend on your statements received on 14 Feb.2011 that you served on the dmz in Korea.This review is based solely on in country service in viet nam." Right-the Nehmer reviews are only for incountry veterans.

"The va regional office in your home state will make another determination regarding service connection for your heart conditions based on your service in Korea."Does this mean they will automati

caly do that?"

No. Have you formally filed claim for AO exposure in Korea that caused your IHD with your VARO?

Do you completely fall into the Korea AO regulations as to the Unit lists and dates?

That info is in our AO forum here.

You mentioned you claimed four conditions.

"At the beginning of the anaylis they stated that the veterans service medical records were requested from the national personnel records center on March 3,2000.NPRC advised that they mailed the records on August 4 ,2000,but they have not been received.If they are subsequently received,the claim will be reconsidered with date of claim protection."

"I have found records I had to support all thtclaims ,plus some I think came from St Lewis. Thank you for any Advice ,opion etc." Walt

Send copies of the records you have found (I assume they are from the SMRs?) to the VA and get proof of mailing them and send then a cover letter reminding them of above statement (maybe best to send them copy of the decision in which they said that)and copy of this regulation (this is from a doc I saved on my PC so I suggest to find this reg in 38 USC instead of this printout- I am sure we have a direct link to the reg here.

This is not a CUE basis, they are saying they will reconsider your 4 issues based on receipt of the missing service records.

If the missing records cause the claim to now succeed-as the regulation states-your EED is protected:

(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.

-----

Title 38: Pensions, Bonuses, and Veterans' Relief

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Again I am assuming you have found missing service records such as your SMrs that reveal a documented nexus to your present 4 other disabilities.

Either one of these print outs will be be good to send with your Request for VA to reconsider based on their past statements:

http://cfr.vlex.com/vid/3-156-new-and-material-evidence-19776250

38 CFR

http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=e1ca5025eb146090cb157b37450fb5c5&rgn=div8&view=text&node=38:1.0.1.1.4.1.59.65&idno=38

38 CFR as it refers to 38 USC 501

I think you should check via IRIS Contact US system at the Main VA web site to see if perhaps the Korea AO IHD claim was formally accepted by your VARO.

If not -you should file it ASAP.

Edited by Berta

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Thank you kindly Berta. I am going to have a lot to sort out in my mind I guess.I really do not want to go to the vfw or any of the others because the two that have been involved did not seem to really want to or care but it may be best if I do.This time I have 11 conditions I was diagnosed with and treated for while in service and 14 more since I got out, I was diagnosed with and treated for prostate cancer this past summer. I left Korea in November 67 and they reconized agent orange in april 68 I IHINK so I do not have any hope there.But yes I do have records now and plan on getting some IMO.I just could not understand why in the anaylis they said treatment records showed the condition and at same time said it did not occur in service. That is why I asked You because I know you have been doing this a long time and know what you are talking about.Thank you again Walt Thank you for helping everyone.

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