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Is This Cue? Denied Comp For In Line Of Duty Injury That Resulted In 35-4 Medical Discharge For Permenant Disability W 10% Rating

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BasehorVet

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I thought I would pose this question to the CUE experts and see what their thoughts and advice would be. Bottom line is that I was discharged from the USAF in 1985 under a medical discharge 35-4 with a narrative reason for separation on my DD214 as "Discharge by reason of physical disability with entitlement to severance pay". My original DD214 was replaced with a DD215 that is dated 3 weeks after my date of discharge because it had the wrong SS#, last week I filed for another change using a form 149 to correct the separation code on the DD214 from the incorrect JFL to the Air Force specific JFL1.

I was injured in the line of duty and have a Line of Duty Determination AFR 35-67 in my medical files and in my possession.

I have a Form 88 Report of Medical Examination for the MEB which states Recurrent back pain 1981 to present (form dated 02 Aug 84) due to fall, treated with back brace and physical therapy, diagnosed a facet syndrome with myofacial chronic pain pattern.

I have a AF Form 356 Findings and Recommended Disposition of USAF Physical Evaluation Board that states 1. Facet Syndrome, Lumbar spine, with low back pain. Unfitting yes, Due to misconduct No, Incurred while entitled to basic pay yes, Degree of impairment is permanent yes, Percent 10% Va diagnostic code 5299-5295.

I failed to appeal the decision dated July 28 1985 and according to my American Legion advocate it was then finalized after one year and it is not possible to claim back pay for compensation based upon the original denial of benefits.

The notification letter stated:

"We have carefully considered your REOPENED claim for service connection of hearing loss and back disability.

We have found it necessary to deny service connection for your back disability because this condition, under existing laws, cannot be classified as a disease or injury. The law allows payment only for benefits only for those disabilities which do result from disease or injury."

I do not know why it states reopened claim, this was the first claim filed upon separation from service.

I did some research and found this tidbit:

Title 38: Pensions, Bonuses, and Veterans' Relief

PART 3—ADJUDICATION

Subpart A—Pension, Compensation, and Dependency and

Indemnity Compensation

General § 3.1 Definitions.

(k) Service-connected means, with respect to disability or death, that such disability was incurred or aggravated, or that the death resulted from a disability incurred or aggravated, in line of duty in the active military, naval, or air service.

(m) In line of duty means an injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. A service department finding that injury, disease or death occurred in line of duty will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the requirements of laws administered by the Department of Veterans Affairs. Requirements as to line of duty are not met if at the time the injury was suffered or disease contracted the veteran was:

(1) Avoiding duty by desertion, or was absent without leave which materially interfered with the performance of military duty.

(2) Confined under a sentence of court-martial involving an unremitted dishonorable discharge.

(3) Confined under sentence of a civil court for a felony as determined under the laws of the jurisdiction where the person was convicted by such court.

(Authority: 38 U.S.C. 105)

To me this means that since the claim was denied that it conflicted with the rules established that the in the line of duty determination binds the VA to recognize the disability and compensate for it. After this decision was made which is in conflict of the laws and rules then anything after that should not have been adjudicated based upon:

§ 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not.

(a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.

I have a request to reopen the claim based on new and material evidence, I had a comp exam last week and scheduled for a MRI in two weeks. The exam nurse indicated to my doctor that I needed x-rays of my hips and I had them done on Friday. So it looks like my claim will be addressed as it should have been 25 years ago and I will be awarded some comp rating.

Any thoughts about my legal musings? Do you think that a clear and unmistakable error of fact or law exists?

Victor

You can find additional information such as the evidence I submitted to reopen my claim at the following hadit post.

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Thanks for all of your comments, I will try to address them.

What is the medical terminology that was used for this specific back disability?

The PEB stated Facet Syndrome Va diagnostic code 5299-5295

The diagnostic code 5295 is no longer used it was revised and moved to 5235–5243 September 26, 2003.

Codes 5235 - 5243

Spine

5235.............................. Vertebral fracture or dislocation.

5236.............................. Sacroiliac injury and weakness.

5237.............................. Lumbosacral or cervical strain.

5238.............................. Spinal stenosis.

5239.............................. Spondylolisthesis or segmental instability.

5240.............................. Ankylosing spondylitis.

5241.............................. Spinal fusion.

5242.............................. Degenerative arthritis.

5243.............................. Intervertebral disc syndrome.

The latest report that I got from the VA says "We previously denied your claim for service connection for Spondylolysis, L1, left, by our rating decision on of July 22 1985, because the diagnosed back condition at that time was of a constitutional or developmental nature.

While there was an injury to your back during service, it was of an acute and transitory nature which resolved without residual disability. You were notified of this decision by letter dated July 29 1985, and this decision became final after one year. Our subsequent rating decision dated November 6 1990 continued to deny service connection. You were notified of this decision on November 16 1990.

They state that the injury could have resolved itself quickly but I don't think any of these codes would suggest that this could have happened. When I was discharged I had 2 1/2 years of physical therapy and had physical profile's during the whole 2 1/2 years that stated no sitting very long, no standing very long no lifting, pushing and pulling. I had been seen by doctors at 3 different hospitals and countless doctor appointments for such things as being fitted with a corset brace. My medical file for my back injury is the size of a book.

What Evidence is listed in the Evidence Section of the Rating Decision?

I have never seen the evidence section from the claim, I am trying to obtain a copy of my C file from 1985.

This would just be a denial right out the door, there is nothing specific here, no 38 CFR reg, no 38 USC reg/law shown to support

a grant for a CUE claim.

The regulation that I feel was broken is 38 CFR PART 3 titled ADJUDICATION - Definitions - under paragraph (M) which specifically states "A service department finding that injury, disease or death occurred in line of duty will be BINDING on the Department of Veterans Affairs." To me this means that VA was bound to more then just CONSIDER the permanent disability determined by my service organization (USAF), they are forced to accept it and rate it, even if this results in a 0% compensation rating. Until I can see my C file, I can find no where they say anything other then that they deny service connection and by not recognizing the permanent disability determined by my service organization (USAF) they committed a clear and unmistakable error.

I had to look up the definition of the title of this regulation and the definition I found is "adjudication - is the final judgment in a legal proceeding; the act of pronouncing judgment based on the evidence presented"

How can a final judgment be rendered when by definition the adjudication of a claim requires a binding action that the VA must accept and act upon, but instead their decision was to ignore my service organization's determination of in the line of duty and deny service connection?

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Basehorvet,

First of all LOD isn't in question so no need to bother responding to that.

Apparently medical evidence of record contained in the 1985 and 1990 rating decision

must not have shown any residual disability - at least that's the way it reads.

Without you having that info there is no way to know for sure until then.

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You know Most of the problems you have I had and I only had a 10% rating for many years. My VSO was very successful in getting my rating raised to so far 60% disability and 100% un-employ-ability. She might be a good one to help you out. She is in Colorado and what really helps is a VSO that understands the laws and uses the Lexus Nexus and is very successful in helping our Vets here in Colorado. She has worked with other vets all over the US. If you interested in her information email me and I will send it to you. My wife was a real advocate and made sure my claim was expedited. There are ways so it doesn't take 5 years to get what is due to you.Email me

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  • HadIt.com Elder

I thought I would pose this question to the CUE experts and see what their thoughts and advice would be. Bottom line is that I was discharged from the USAF in 1985 under a medical discharge 35-4 with a narrative reason for separation on my DD214 as "Discharge by reason of physical disability with entitlement to severance pay". My original DD214 was replaced with a DD215 that is dated 3 weeks after my date of discharge because it had the wrong SS#, last week I filed for another change using a form 149 to correct the separation code on the DD214 from the incorrect JFL to the Air Force specific JFL1.

I was injured in the line of duty and have a Line of Duty Determination AFR 35-67 in my medical files and in my possession.

I have a Form 88 Report of Medical Examination for the MEB which states Recurrent back pain 1981 to present (form dated 02 Aug 84) due to fall, treated with back brace and physical therapy, diagnosed a facet syndrome with myofacial chronic pain pattern.

I have a AF Form 356 Findings and Recommended Disposition of USAF Physical Evaluation Board that states 1. Facet Syndrome, Lumbar spine, with low back pain. Unfitting yes, Due to misconduct No, Incurred while entitled to basic pay yes, Degree of impairment is permanent yes, Percent 10% Va diagnostic code 5299-5295.

I failed to appeal the decision dated July 28 1985 and according to my American Legion advocate it was then finalized after one year and it is not possible to claim back pay for compensation based upon the original denial of benefits.

The notification letter stated:

"We have carefully considered your REOPENED claim for service connection of hearing loss and back disability.

We have found it necessary to deny service connection for your back disability because this condition, under existing laws, cannot be classified as a disease or injury. The law allows payment only for benefits only for those disabilities which do result from disease or injury."

I do not know why it states reopened claim, this was the first claim filed upon separation from service.

I did some research and found this tidbit:

Title 38: Pensions, Bonuses, and Veterans' Relief

PART 3ADJUDICATION

Subpart APension, Compensation, and Dependency and

Indemnity Compensation

General § 3.1 Definitions.

(k) Service-connected means, with respect to disability or death, that such disability was incurred or aggravated, or that the death resulted from a disability incurred or aggravated, in line of duty in the active military, naval, or air service.

(m) In line of duty means an injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. A service department finding that injury, disease or death occurred in line of duty will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the requirements of laws administered by the Department of Veterans Affairs. Requirements as to line of duty are not met if at the time the injury was suffered or disease contracted the veteran was:

(1) Avoiding duty by desertion, or was absent without leave which materially interfered with the performance of military duty.

(2) Confined under a sentence of court-martial involving an unremitted dishonorable discharge.

(3) Confined under sentence of a civil court for a felony as determined under the laws of the jurisdiction where the person was convicted by such court.

(Authority: 38 U.S.C. 105)

To me this means that since the claim was denied that it conflicted with the rules established that the in the line of duty determination binds the VA to recognize the disability and compensate for it. After this decision was made which is in conflict of the laws and rules then anything after that should not have been adjudicated based upon:

§ 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not.

(a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.

I have a request to reopen the claim based on new and material evidence, I had a comp exam last week and scheduled for a MRI in two weeks. The exam nurse indicated to my doctor that I needed x-rays of my hips and I had them done on Friday. So it looks like my claim will be addressed as it should have been 25 years ago and I will be awarded some comp rating.

Any thoughts about my legal musings? Do you think that a clear and unmistakable error of fact or law exists?

Victor

You can find additional information such as the evidence I submitted to reopen my claim at the following hadit post.

If V.A. is refusing to give you a copy of your C file perhaps they didn't have the corrected DD214 in the record when they made the original decision or perhaps they made a request for records using the wrong social security number. It is also possible they didn't have the service medical records showing a line of duty determination in their possession when they made the original decision. V.A. has a regulation on newly discovered service records at 38 CFR 3.105 ( c ). I think you need to speak with another service officer about whether V.A. made a CUE in denying service connection for a disability incurred in the line of duty.

Edited by deltaj
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  • HadIt.com Elder

BasehorVet - I'd pursue the CUE claim but first, as deltaj points out, since they may have not had the DD215, I'd make an appointment to personally view my c-file, at my VARO. They could be continuing to make the same error. I believe the VA failed to follow the law which finds the PEB rating binding on the VA, period. jmo

pr

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