My Dro Statement Of The Case, For Lack Of A Better Term

[Cruinthe]

Glenn XXXXXX

7557 XXXXXXXX

Roanoke, Virginia

2XXXX

XXXXXXX

(540)204-XXXX

This is a clarification of the issuesto be introduced during the Decision Review Officer hearing to beconducted at the Roanoke Virginia Veterans Affairs Regional Office onAugust 10th, 2010 at 1:00PM.

1. A Decision Review Officer hearing has been requested regarding my request for an Earlier Effective Date for Chronic Fatigue Syndrome, currently evaluated as 60-percent disabling.
   
   
   
   A copy of the original VA Form 21-4138 Statement In Support Of Claim, received by the Philadelphia Department of Veterans Affairs Regional Office and dated March 9^th, 1993 are a matter of record. The symptoms described are consistent with those of Chronic Fatigue Syndrome.
   
   

The subsequent denial of service-connection issued by thePhiladelphia VARO dated August 13^th, 1993, and ongoingapplications for service-connection for Chronic Fatigue Syndrome arealso a matter of record.

1. A VA Form 21-4138 was submitted in response to a Training Letter issued by Eric Shinseki, Secretary of the Department of Veterans Affairs dated February 4^th, 2010. This Training Letter stated, in part, the following;
   
   
   
   “VA Secretary Eric Shinseki said the decision is part of a "fresh, bold look" his department is taking to help veterans who have what's commonly called "Gulf War illness" and have long felt the government did little to help them. The VA says it also plans to improve training for medical staff who work with Gulf War vets, to make sure they do not simply tell vets that their symptoms are imaginary - as has happened to many over the years.”
   
   
   
   The above training letter, and statements made by Secretary Eric Shinseki on the matter, confirm beyond any doubt that a problem exists regarding Gulf War related issues. The Department of Veterans Affairs is taking steps to rectify these problems, to include a review of previously denied claims for compensation.
   
   
   
   Therefore it is requested that my claim for service-connection for Chronic Fatigue Syndrome be reopened in accordance with Training Letter 10-01 titled Adjudicating Claims Based on Service in the Gulf War and Southwest Asia. Special note should be given to the fact that this is a request to reopen an existing claim, and not to be considered a new claim.
   
   
   
   There are two primary issues that must be given consideration during this request to reopen an existing claim.
   
   
   
   First, it should be noted that the original request for service-connection for Chronic Fatigue Syndrome is dated March 9^th, 1993. The subsequent Rating Decision and denial from the Philadelphia VARO was dated August 13, 1993.
   
   
   
   However, the condition of Chronic Fatigue Syndrome was not added to the Schedule of Ratings until November 29^th, 1994 as §4.88a under Infectious Diseases, Immune Disorders and Nutritional Deficiencies.
   
   
   
   Second, a Rating Decision denying an Earlier Effective Date for Chronic Fatigue Syndrome was issued by the Roanoke VARO on May 20^th, 2010. The Reasons For Decisions included the following statement; “You were not shown to have a diagnosed disability while you were on active duty, symptoms of fatigue were denied prior to your release from active duty, and there was no medical evidence showing the clinical diagnosis of a disability at the time that you first filed your claim for chronic fatigue.”
   
   
   
   However, in a previous Rating Decision issued by the Philadelphia VARO dated March 19^th, 2004 on the matter of service-connection for Chronic Fatigue Syndrome the following statement is found; “Service connection may be granted for specific diseases which are presumed to have been caused by service if manifested to a compensable degree following military discharge. Although not shown in service, service connection for chronic fatigue syndrome has been granted on the basis of presumption.”
   
   
   
   Initial Chronic Fatigue Syndrome symptoms were consistent with a 20 percent rating from March 9^th, 1993 to May 23rd, 1999, and 40 percent from May 23rd, 1999 to January 26^th, 2001.
   
   
   
   On May 23^rd of 1999 a military medical evaluation found the veteran unfit for duty due to “failure to meet medical requirements”, thus forcing an end to any further military service. Evidence of this fact is the Form 268 and is a matter of record.
   
   
   
   The forced termination of military service due to a failure to meet medical requirements should be considered the equivalent of an absolute minimum rating of 30 percent, as defined in Army Regulation 635-40 Personnel Separations, Physical Evaluation for Retention, Retirement, or Separation, Section 7-11. See extract below.
   
   
   
   (1) Permanent retirement. If the Soldier meets the criteria below, the Soldier will be removed from the TDRL, permanently retired for physical disability, and entitled to receive disability retired pay:
   
   (a) The Soldier is unfit.
   
   (b) The disability causing the Soldier’s name to be placed on the TDRL has become permanent.
   
   © The disability is rated at 30 percent or more under the VASRD, or the Soldier has at least 20 years of active Federal service.
   
   In closing, and in addition to all of the above issues, consideration must be given to Benefit of the Doubt as defined in 38 U.S.C. § 5107, and Reasonable Doubt as defined in 38 C.F.R. § 3.102. All statements are true to the best of my knowledge.
   
   
   
   Please render a decision as soon as possible.
   
   

Glenn XXXXXX

7557 XXXXXXXX

Roanoke, Virginia

XXXXXX

XXXXXX

(540)204-XXXX

[Berta]

This is Very well written.

Here is the training letter you refer to:

http://www.vawatchdog.org/10/nf10/nfmar10/nf030310-8.htm

and the second link.....

http://www.vawatchdog.org/10/nf10/nffeb10/nf022610-6.htm

In part:

WASHINGTON — The Veterans Affairs Department will re-examine the disability claims of what could be thousands of Gulf War veterans suffering from ailments they blame on their war service, the first step toward compensating them nearly two decades after the war ended.

I need to think about what you posted here and get back here tomorrow.

The nine new GWV presumptives are covered in the Gulf War vet forum and we did a SVR show on them.

This is different-

their denials were obviously wrong.

I am not sure they can grant an EED prior to the publication date of the regs-(the April 1993 denial) but it is worth trying to get a better EED here due to the new training letters.

"On May 23rd of 1999 a military medical evaluation found the veteran unfit for duty due to “failure to meet medical requirements”, thus forcing an end to any further military service. Evidence of this fact is the Form 268 and is a matter of record.

The forced termination of military service due to a failure to meet medical requirements should be considered the equivalent of an absolute minimum rating of 30 percent, as defined in Army Regulation 635-40 Personnel Separations, Physical Evaluation for Retention, Retirement, or Separation, Section 7-11. See extract below."

You made excellent points here.

I assume and have no evidence to the contrary (and sure feel neither does the VA have)that you were MEBed out due to Chronic Fatique Syndrome.That would be Direct SC of the CFS.

Is this correct as-did you deny fatique in service?

"You were not shown to have a diagnosed disability while you were on active duty, symptoms of fatigue were denied prior to your release from active duty, and there was no medical evidence showing the clinical diagnosis of a disability at the time that you first filed your claim for chronic fatigue.”

Did they actually review your SMRs?How could they misconstrue the MEB stuff?

Then again there was no CFS in the rating schedule at that time.

Excellent the way you laid this all out for them-concise and without any extemporaneous stuff.

[john999]

Would Nehmer apply or is that only for AO claims? A claim was filed for a condition the VA did not recognize so it was denied. Years later it did recognize it and the vet was compensated. This seem similar to a vet getting denied for anxiety and depression a few years after combat in Vietnam. He is denied since PTSD does not exist. A few years later he is SC'ed for anxiety and depression. Years later he makes a claim for PTSD. The symptoms of his anxiety and depression are consistent with PTSD. Shouldn't he have been SC'ed for PTSD back to the time he filed for his anxiety claim. In fact shouldn't he be compensated from the date he was DX'ed with symptoms consistent with PTSD?

[LarryJ]

I concur with Berta, a very well written and presented case.

And, with John, a certainly entertaining, or maybe I should say, intriguing (sp?) concept, and worth the effort to follow this. Another Nehmer? Heck, why not?

[Cruinthe]

Thanks for the comments Berta. Going over your questions.

I have printouts of stuff, like Shinseki and his training letters and press statements, they will be submitted.

Since the new regulations are not specific, I think it would be best to initiate a preemptive strike to force the issue. Better to ask forgiveness than to ask permission. Who knows, we may set a precedent with this later on

At the time of my 8-year physical, I was in the national guard. I failed the physical, thus I was not allowed to reenlist another 8 years. At the time I had no idea what an MEB was. I still have no idea if one can MEB out of the reserve component. Once the current issues are resolved, I plan to file for a retroactive retirement from DoD, but that is at least a year down the road.

Two of the stronger issues are 1) the Philly VARO granted me service-connection for CFS on the grounds of "presumption", and stated no medical evidence from active duty was needed. The Roanoke VARO did the exact OPPOSITE and DENIED my EED (even with the original 4138 as a matter of record) due to lack of active duty treatment records, and the ignored the issue of presumption. As for 2) its a no-brainer, the condition did not officially exist in 38 CFR yet. Both conditions scream Benefit Of The Doubt and Reasonable Doubt. Even if the Roanoke VARO denies this, the BVA or CAVC will approve it.

Either way, I will find out of Senator Webbs office is still in my corner on this cut and dry, clear as day decision. If not, no sweat, there is more than one way to skin a cat.

As to john999s question, once I am done with this claim, I will be re-opening my claim for Chronic Prostatitis because I came back from the war with a Line Of Duty Injury Report. Current rating is 40% and I will assert that, upon review of the rating scale, my symptoms were consistent with 40% back in 1991.

Thanks again for all the comments, all!

I will let ya know how it goes tomorrow.

[LarryJ]

Oh, and, no thanks, I don't want a mint....................however if you have one of those uselss little pillows and a ratty little stinky blanket and if someone would dim the cabin lighting, that would be nice! GEE, but I HATE these overseas flights!

G-d but we had a terrible flight the last time we went to Tel Aviv. An El Al flight (one of the MOST terrorist-free and secure airlines in the world, BTW). But, what did we get, we get the flight that has nothing, NOTHING, but us and 100 Chasidic Rabbis and their Wives and their minimum of 6 kids apiece.

I will SWEAR (and we don't do that, at least very often), I WILL SWEAR there were more people (kids included, oh YEAH, kids included) than there were actual SEATS on the plane. YOU COULDN'T TELL, OF COURSE, BECAUSE THE LITTLE SHAZITS NEVER SAT DOWN. The WHOLE plane was their personal little "jungle gym".

Had one of the kids sitting RIGHT IN FRONT OF ME, okay? He spent the total trip, leaning over the back of HIS seat, with his face in mine, waiting for me to close my eyes. SO, he could announce to his BRAIN-DEAD MOTHER, "LOOK MOMMA, THE BIG MAN IS GOING TO SLEEP!"

, NO, you little shazits I am NOT going to sleep, I am just closing my eyes and picturing, imagining, kidacide!

And, all I could get was a day-old bagel. What............ever!

[Cruinthe]

Have a mint larry, I insist. Safe journey and lay off the coffee.