Cue Claiming Res Judicata

[BasehorVet]

I was discharged from Air Force in 1985. I gave testimony at a Formal Physical Evaluation Board that determined my back was injured in the Line Of Duty, that the disability was permanent and gave me a 10% disability rating using the VASRD to provide identification of the injury.

AFI36-3212 Chapter 1 - GENERAL PROVISIONS

1.1. Purpose of the Disability Evaluation System (DES).

1.1.1. To maintain a fit and vital force, disability law allows the Secretary of the Air Force (SAF) to remove from active duty those who can no longer perform the duties of their office, grade, rank or rating and ensure fair compensation to members whose military careers are cut short due to a service-incurred or service-aggravated physical disability.

1.2. Responsibilities.

1.2.1. The SAF prescribes directives to carry out provisions of Title 10, U.S.C. These are used to decide fitness for continued military duty; percentage of disability in unfit cases; suitability for reappointment, enlistment or reentry on active duty; and entitlement to disability retirement or severance pay.

Since the SAF administratively acted according to the provisions above, the Department of Defense adjunticated the evidence presented within the hearing and approved my discharge from the Air Force effective April 15 1985. I notified the VA of my pending release and had copies of my DD214 sent to them from the Air Force.

USC 38 §17.34 (B) Tentative Eligibility Determinations.

USC 38 §17.102 Charges for care or services.

A letter from the VA denied my service connection because "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."

My question is do you feel that I have a claim to CUE the 1985 uncontested final decision from the VA based upon “RES JUDICATA".

The Supreme Court applied the rule of res judicata to administrative decisions which have become final. See Astoria Fed. Savs. & Loan Ass’n v. Solimino, 501 U.S. 104, 107-08 (1991).

“When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.” United States v. Utah Constr. & Mining Co, 384 U.S. 394, 422 (1996).

The Court, in deciding Hazan v. Gober, 10 Vet.App. 511, 521 (1997), found that the failure of the Board to address the 1989 testimony in its 1994 decision “as the sole basis for an earlier effective date is nonprejudicial error (emphasis in text) (citing Edenfield v. Brown, 8 Vet.App. 384, 390-91 (1995) (en banc)) because the Board was collaterally estopped from viewing that evidence any differently from the way it had in 1990, absent a finding that the Board had committed obvious error in its 1990 decision.” citing Chisem v. Brown, 4 Vet.App. 169, 177 (1993) (Board has “discretion to correct an ‘obvious’ error when one is found” and that discretion is not subject to review in this Court); (citations omitted).

See Black’s Law Dictionary 887-88 and 1305-06; cf. Collateral estoppel, Ibid at 1306 (“‘Res judicata’ bars relitigation between of the same cause of action between the same parties where there is a prior judgment, whereas ‘collateral estoppel’ bars relitigation of a particular issue or determinative fact.” Roper v. Mabry, 15 Vet.App. 819, 551 P.2d 1381, 1384.).

Under the doctrine of res judicata (‘issue and claim preclusion’), a judgment entered on the merits by a court of competent jurisdiction in a prior suit involving the same parties or their privies settles that cause of action and precludes further claims by the parties or their privies based on the same cause of action, including the issues actually litigated and determined in that suit, as well as those which might have been litigated or adjudicated therein. See McDowell v. Brown, 5 Vet.App. 401, 405(1993); see also Johnson v. Brown, 7 Vet.App. 25, 16 (1994)

My reasoning is that the SAF is a privie to the DOD and that the DOD is a Department within the US Government and since the Department of Veterans Affairs is also a Department within the US Government that the decision by the DOD to accept the findings of that I was discharged for a permanent disability, that the disability was permanent and that it occurred In The Line Of Duty and the VA was bound, in this case, by that adjudicated decision.

The requirement that the decision would have been manifestly different if not for the CUE is overcome because the Formal Physical Evaluation Board listed two findings of disability; they rated my hearing under the VASRD 6297 as 0% and my back disability under 5299-5295 as 10%.

Title 38 PART 4 § 4.31 —SCHEDULE FOR RATING DISABILITIES In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.

“It is also well-established that the law of the case doctrine is a rule of practice and not a limit on the court’s power, see, e.g., 18 James Wm. Moore et al., Moore’s Federal Practice § 134.21[1], at 134-46 (3d ed.1999)

‘law of the case should not be applied woodenly in a way inconsistent with substantial justice,’ United States v. Miller, 822 F.2d 828, 832 (9th Cir.1987).” Hudson supra, at 1363-64.

This would have allowed me to seek an increase instead of trying to reopen the case in 1990, 1999 and 2009 under "well grounded or/and new and material evidence.

[carlie]

1) 'so I went to see Psychologist at the VA Medical Center and we discussed that I may be suffering from PTSD due to the physical pain I suffer from since 1981

2) and that the depression is due a lot to the VA denying me compensation for so many years by denying service connection.'

BasehorVet,

1) you will not get SC'd for PTSD due to the physical pain you've suffered from since 1981.

2) you will not get SC'd for depression due to the VA denying you compensation for so many years.

[BasehorVet]

After re-reading what I wrote, I can see where the confusion begins about the PTSD, I was injured in 1982, I was 21 years old (I am now 50), and the injury was to my lower spine (blunt force trauma), it happened while working on the flight line, as an aircraft mechanic (crew chief) on a C-141, left me laying in pain for 2 hours, I could not move, it was late at night and no one was around and it was freezing cold. I crawled to where I could be seen and then was transported to the medical center at Fort Dix, I don't remember how I got there. Spent 7 days on bed rest and then went back to work humping a 50lb tool box in and out of planes, lifting 80lbs over my head was part of the job on a daily basis, not to mention the heavy pulling and pushing. After about 13 months of this, my legs were jumping like frogs at night when I tried to lay down and sleep, the muscle spasms were painful and I was angry all the time.

Ended up re-hurting my back when I slipped on a patch of ice in 1983 and they sent me to an Ortho surgeon in Philly, he diagnosed it as possible bilateral spondylosis, put me on a physical profile - no lifting greater then 15lbs, no sitting or standing longer then 15 minutes and no pushing or pulling, then on follow up he confirmed it. In 84 they flew me to Bethesda to the med center and I was seen by the chairman of the Ortho department and he stated that he could not be 100% positive of spondylosis without a ct scan and stated it could be a facet syndrome. On follow up he confirmed facet syndrome without ct scan and said I had myofacial chronic pain, in the MEB report the Dr. checked the box for unfitting and then said I should be crossed trained. It then went to a IPEB where on 14 Dec 84 they stated that "The member has an established non-disability date of separation of 22 Apr 85 and that the documentation does not clearly establish that the member's physical condition makes him unable to perform the duties of his grade. I appealed it on the grounds that my discharge date should not be used to deny that I had a permanent disability and went to a Formal PEB in Texas where the evidence on record and my testimony caused me to be found unfit for duty due to an injury that happened in the line of duty, that it was permanent and gave me a 10% rating with the narrative reading facet syndrome with chronic pain.

After the FPEB I applied for my VA benefits and on April 15 85 when I was out processing I found that the had put the wrong SSN# on my DD214 and they had me sign a request for a 214 to correct the error with my SSN (VA File #), on my form 100 "request and authorization for separation" They had in block 21 they wrote entitled to severance pay per USC 1203 and messed up by checking block c "chapter 61 10 USC disability - not entitled to benefits". I told them it was wrong and they checked my records and gave me a different form 100 that did not have that blocked checked and it states at the top corrected copy - destroy all others with an annotation on the right side bottom hand written that says 438 ABG/DPMPS Overprint.

The fun didn't stop there, last summer I was reading the dd214 again and it had a separation code of JFL which is a Navy/Marines code that provides no benefits, the Air Force code is specific to the Air Force and it is JFL1, it means with benefits. I have applied for another 215 to correct the code. The 214 also lists me as 2x meaning that I was considered for reenlistment by not recommended, I have a copy of my last APR and it states that my immediate supervisor did not recommend me for reenlistment because I was not Air Force material, medical condition did not warrant retention in the AF, I wouldn't agree and told him it was not his determination to make, it then wen to the Unit Commander who checked the block for "Selected for re-enlistment' and wrote in the remarks that "although he is being medically discharged, his behavior and duty performance have met AF standards for retention, No quality force issues would bar his reenlistment at this time".

When I got home after my discharge my 215 was waiting on me and I called the VA and went to my examination afterward I got my denial letter that stated that my reopened claim had been denied. This was in response to my original claim and I have no notification that they had denied and closed my original claim or that they had re-opened a claim for me, to which they then denied the claim.

After this happened I tried to live my life but within a year I had separated from my wife and shortly became divorced, we had been married for 8 months while I was in the service, we had a new baby and the pain caused me to lash out at her and the world. It eventually led me to the clinical depression and the psychiatrist attributed it to the pain from aggravating my in service back injury. My baby is now 24 years old and after being estranged for many years, we are working on trying to overcome the past.

I have never remarried and my relationships have always been volatile because of my flair ups, I have dreams where I wake up crying, talking about wanting to go home, home not really being a place but a place in time before I was injured. I have no friends accept my girlfriend who has dealt with my flair ups for 6 years, she is a strong woman and I love her for staying with me despite my anger, I don't think I could take some of the things that come out of me directed towards her if it was reversed. I have been arrested several times for outbursts and have had to attend court ordered anger management classes. I cannot work in an office setting because within a short time, I will get into a screaming match with a supervisor and get fired. I do not qualify for SSDI because my countable work hours do no add up enough to qualify for the required 28 blocks of work within the last 10 years.

The last denial VA compensation request letter that I got in July 2010 stated that in the 1990 denial that it had been determined that while I had injured my back in the service, it was acute, transitional and resolved itself without any residual.

As I stated above, I was 21 when I was injured, I am now 50 and have lived not only with the physical pain but also the psychological pain for 29 years.

[Berta]

"The last denial VA compensation request letter that I got in July 2010 stated that in the 1990 denial that it had been determined that while I had injured my back in the service, it was acute, transitional and resolved itself without any residual."

Have you been able to give VA any medical records that show your disability from the back injury is still current and can you prove you still get treatment for the back injury?

Does VA have a copy of the initial corrected DD 215?

"When I got home after my discharge my 215 was waiting on me and I called the VA and went to my examination afterward I got my denial letter that stated that my reopened claim had been denied. This was in response to my original claim and I have no notification that they had denied and closed my original claim or that they had re-opened a claim for me, to which they then denied the claim."

"I have applied for another 215 to correct the code"

Good , that could help resolve some of these problems to a degree.

Still the VA stated "it was acute, transitional and resolved itself without any residual."

The VA -if you do not have ample medical evidence to the contrary-and send it to them - will deny any claim for any injury that they think is transitional or acute and that they find no residuals for.

Only residuals can be rated and if there is no current medical documentation of treatment of the residuals- they have to deny as there is nothing to rate.

Others might disagree here and hopefully them will chime in.

It appears -if you can get the back problems service connected with medical documentation of consistent and current treatment of residuals then you could claim the depression as secondary and the doctor's statement you have on that due to the pain- will help you.

Are you being prescribed meds for the pain? Do yo have a private doctor who is treating the back injury residuals? If so VA needs to know that.

I dont see that as having any basis for a SC PTSD claim.

[Chuck75]

Remember that the VA's actions are mainly governed/based on laws that are unique to the VA. If they did not consider information that obviously proved that a condition was service related, and the information was a matter of record, it can be used as a basis for cue.

The services used different criteria than the VA in determining a level of disability. If the VA denied with out giving you the opportunity to have a VA "C&P" exam, this can also be a factor in your favor. (Personal opinion, not legal advice, etc.)

The problem can be that a condition disqualifies you for further military service, yet arguably was not caused by or in military service. The VA often cites "not duty related". You should also consider that the "intent" of compensation from the VA is to "compensate" for loss of income related to the service connected injury or disease. Pain, suffering, extra expenses, etc. are generally not compensated for until a veteran is severely handicapped (VA definition, not common sense definition) and meets the VA requirements for additional compensation.

I was discharged from Air Force in 1985. I gave testimony at a Formal Physical Evaluation Board that determined my back was injured in the Line Of Duty, that the disability was permanent and gave me a 10% disability rating using the VASRD to provide identification of the injury.

AFI36-3212 Chapter 1 - GENERAL PROVISIONS

1.1. Purpose of the Disability Evaluation System (DES).

1.1.1. To maintain a fit and vital force, disability law allows the Secretary of the Air Force (SAF) to remove from active duty those who can no longer perform the duties of their office, grade, rank or rating and ensure fair compensation to members whose military careers are cut short due to a service-incurred or service-aggravated physical disability.

1.2. Responsibilities.

1.2.1. The SAF prescribes directives to carry out provisions of Title 10, U.S.C. These are used to decide fitness for continued military duty; percentage of disability in unfit cases; suitability for reappointment, enlistment or reentry on active duty; and entitlement to disability retirement or severance pay.

Since the SAF administratively acted according to the provisions above, the Department of Defense adjunticated the evidence presented within the hearing and approved my discharge from the Air Force effective April 15 1985. I notified the VA of my pending release and had copies of my DD214 sent to them from the Air Force.

USC 38 §17.34 (B) Tentative Eligibility Determinations.

USC 38 §17.102 Charges for care or services.

A letter from the VA denied my service connection because "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."

My question is do you feel that I have a claim to CUE the 1985 uncontested final decision from the VA based upon "RES JUDICATA".

The Supreme Court applied the rule of res judicata to administrative decisions which have become final. See Astoria Fed. Savs. & Loan Ass'n v. Solimino, 501 U.S. 104, 107-08 (1991).

"When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose." United States v. Utah Constr. & Mining Co, 384 U.S. 394, 422 (1996).

The Court, in deciding Hazan v. Gober, 10 Vet.App. 511, 521 (1997), found that the failure of the Board to address the 1989 testimony in its 1994 decision "as the sole basis for an earlier effective date is nonprejudicial error (emphasis in text) (citing Edenfield v. Brown, 8 Vet.App. 384, 390-91 (1995) (en banc)) because the Board was collaterally estopped from viewing that evidence any differently from the way it had in 1990, absent a finding that the Board had committed obvious error in its 1990 decision." citing Chisem v. Brown, 4 Vet.App. 169, 177 (1993) (Board has "discretion to correct an 'obvious' error when one is found" and that discretion is not subject to review in this Court); (citations omitted).

See Black's Law Dictionary 887-88 and 1305-06; cf. Collateral estoppel, Ibid at 1306 ("'Res judicata' bars relitigation between of the same cause of action between the same parties where there is a prior judgment, whereas 'collateral estoppel' bars relitigation of a particular issue or determinative fact." Roper v. Mabry, 15 Vet.App. 819, 551 P.2d 1381, 1384.).

Under the doctrine of res judicata ('issue and claim preclusion'), a judgment entered on the merits by a court of competent jurisdiction in a prior suit involving the same parties or their privies settles that cause of action and precludes further claims by the parties or their privies based on the same cause of action, including the issues actually litigated and determined in that suit, as well as those which might have been litigated or adjudicated therein. See McDowell v. Brown, 5 Vet.App. 401, 405(1993); see also Johnson v. Brown, 7 Vet.App. 25, 16 (1994)

My reasoning is that the SAF is a privie to the DOD and that the DOD is a Department within the US Government and since the Department of Veterans Affairs is also a Department within the US Government that the decision by the DOD to accept the findings of that I was discharged for a permanent disability, that the disability was permanent and that it occurred In The Line Of Duty and the VA was bound, in this case, by that adjudicated decision.

The requirement that the decision would have been manifestly different if not for the CUE is overcome because the Formal Physical Evaluation Board listed two findings of disability; they rated my hearing under the VASRD 6297 as 0% and my back disability under 5299-5295 as 10%.

Title 38 PART 4 § 4.31 —SCHEDULE FOR RATING DISABILITIES In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.

"It is also well-established that the law of the case doctrine is a rule of practice and not a limit on the court's power, see, e.g., 18 James Wm. Moore et al., Moore's Federal Practice § 134.21[1], at 134-46 (3d ed.1999)

'law of the case should not be applied woodenly in a way inconsistent with substantial justice,' United States v. Miller, 822 F.2d 828, 832 (9th Cir.1987)." Hudson supra, at 1363-64.

This would have allowed me to seek an increase instead of trying to reopen the case in 1990, 1999 and 2009 under "well grounded or/and new and material evidence.

[BasehorVet]

I went to the VA med center in July 2009 before filing my claim and saw the only ortho doctor that they have and he wrote that my exam was amazing benign/unrevealing. The Dr. asked me if I had any problems since the discharge and I told him that I had aggravated it in 1990 and caused me to become clinically depressed. He stated in my progress report that my back pain is from a work related injury in 1990 that I received a 1 time cash settlement for signing away future medical care. He did say in an addendum that in retrospect that I told him that I had been discharged from the Air Force for a back disability and rated 10% but had been denied compensation by the VA. The doctor was 45 minutes late for the appointment and had an attitude with me as soon as I entered his exam room. He ended up trying to hurt me and told me so; I have filed a request to modify his medical progress report and asked that the following x-rays, EMG report and MRI be included in my medical report.

This was all found within 12 months after his examination.

In my claim file the C&P examiner noted the following findings.

Examination of muscles of the Spine.

Thoracolumbar

Spasms left and right - yes

Guarding left and right - yes

Pain with motion left and right - yes

Is the muscle spasm, localized tenderness or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour - yes

Range of Motion

Active Motion

Flexion 0 to 87 degrees

Extension 0-15

Lt Lat flexion 0-15

Lt Lateral rotation 0-28

RT Lat Flexion 0-9

RT Lat rotation 0-30

Is there objective evidence of pain on active ROM - yes

Repetitive Motion

Is there objective evidence of pain following repetitive motion - yes

Are there additional limitations after 3 repetitions of ROM - yes

What is the most important factor - Pain

ROM after repetitive motion

Flex 0-85

Extension 0-10

Lt Lat Flex 0-8

Lt Lat rotation 0-25

RT lat flex 0-9

RT lat rotation 0-27

Miscellaneous Questions

Is Lasegues sign positive - yes

Side of positive lasegue's - left

-Imaging Studies:

X-Rays of Lumbrosacral Spine dated 6-18-2009, reason for study Chronic Low Back Pain, Report: Three views of the lumbar spine are obtained there is relatively normal alignment of the lumbar spine. Mild facet hypertrophic changes are present at L5-S1. There is a mild wedging of the T11 vertebral body. I do not see and definite there fracture or dislocation. The prior examination from 1999 is off line and no longer available for comparison. The aorta is atherosclerotic. There is mild loss of height of intervertabral disc space at L5-S1.

MRI ordered by the C&P examiner dated July 12 2010. This is the same day that my recent claim was denied and is not included into the C&P report. They denied my claim even before they got the results for the MRI.

Findings:

Degenerative osteoarthritis of lumbar spine. Disc desiccation is at the level of L4 through S1 and to lesser degree L3-L4 and L1-L2. Vertebral heights and signal intensities and alignment are normal. Conus medullaris at the level of T12 and appears normal in signal and volume.

Disc Levels:

T12-L1: Unremarkable.

L1-L2: Minimal disc bulging at the right side of midline without spinal canal stenosis.

L2-L3: Unremarkable.

L3-L4: Minimal disc bulging with impression on dural sac without spinal canal stenosis.

L4-L5: Right paracentral disc protrusion with impression on dural sac and decrease AP diameter of sac to 6 mm.

L5-S1: Central disc bulging without spinal canal stenosis. Mild degree disc protrusion and possible sequestration projected slightly below L5-S1 disc level. Neural vertebral foramina are patent.

Impression:

Degenerative osteoarthritis of lumbar spine. No spinal canel stenosis is seen. Neural formaina are patent.

Borderline disc bulging at the level of L1-L2, L3-L4. Right paracentral disc protrusion of L4-L5 with decrease AP diameter of dural sac to 6 mm.

Mild degree disc bulging of L5-S1. Suggestion of sequestrated disc material adjacent to midline projected below the disc of L5-S1.

Diagnostic Code #6

Preliminary Diagnostic Code: ABNORMAL, ATTENTION NEEDED

I had a muscle spasm that knocked me out of my chair and I went to the VA med center and had them take x-rays of my lumbar and cervical spine because it hurt so badly after hitting the ground so hard.

Report July 28 2010

Note is once again made of minimal anterior wedging of T11. Minimal Spondylosis is noted throughout the lumbar spine. Mild degenerative disc disease is identified at L5-S1 unchanged from the prior study. There are mild degenerative changes of the facet joints at L5-S1.

Note is made of moderately extensive atherosclerotic calcification of the lower abdominal aorta and common iliac.

They did the cervical spine x-ray at the same appointment and it states:

Impression:

Kyphosis with mild dextroscoliosis of the cervical spine.

Old mild anterior wedging of c4 with mild spondylosis identified at c4, c5 and c6 along with mild degenerative disc disease at c4-c5 and moderately severe degenerative disc disease at c5-c6.

Primary diagnostic code: Abnormal

After this my VA PCP asked if I agree to an EMG and I did, here are the results.

Dated 8-6-10

Clinical examination: reveals normal strength. Both knee jerks, left ankle jerks normal. RT ankle jerk is absent. Sensory is decreased in the ankle areas. He also complains of right arm numbness for a couple of weeks.

There are a bunch of things written in the motor studies, sensory conductions studies and h reflex latency that I don't understand and don’t want to type out on here.

What it does say is " gastrocnemius muscles showed increased insertional activity and tibialis anterior lateral head and gastrocnemius showed a few polyphasic potentials. The lumbar lower paraspinal segments showed 1+ positive waves in the mid and low bilaterally. The left gastrocnemius, medial and lateral head, showed insertional activity.

Impression:

Mild increased insertional activity seen in parapinal lumbar area. This can be non specific and may suggest mild nerve root irritability at S1 segment bilaterally.

I have no idea what most of this means so any help in explaining it to me would be appreciated. I have no access to a VA ortho doctor because of the complaint filed and can't afford an ortho in the private world because I have no healthcare plan.

I take around two Vicodines a day for pain.

[BasehorVet]

I took the advice to submit a request for answers using the IRIS "Ask a question" link and got back the following notification. I think I may have an un-adjudicated original application for benefits from 1985, this could be that I am trying to read something into nothing so I thought I would ask other hadit members for additional thoughts in regard to the response that they sent back to me. I am also posting the "ask a question" e-notification letter that I sent in on Saturday night. They responded so fast to this request, I highly recommend this avenue to ask questions to the VA.

Response (Department of veterans Affairs)

Dear Mr. XXXXX:

This message is in response to your inquiry to the Department of Veterans Affairs on August 21, 2010, regarding your benefits. We see conflicting information regarding your original claim and there reopened claim in 1985, so we are forwarding this inquiry to our Wichita Regional Office, to research the matter, and send you the original rating decision. They will answer your questions regarding these claims.

The Air Force and VA are separate organizations. The Air Force granted service connection, but the VA didn't. The Air Force still considers those conditions to be service connected. Service connection was never severed by the VA, because it was never established by the VA.

We are still working on the Freedom of Information Act request you sent in. These requests are generally answered in the order in which they were received.

This is the question letter I submitted.

Inquirer (Victor XXXXX)

On January 18, 1985 an Air Force FORMAL Physical Evaluation Board (FPEB) made the determination that I had two permanent direct service connected disabilities that occurred while I was entitled to basic pay. The two service connected disabilities detailed on my form 356 had two separate VA diagnostic codes, the first was 5299-5295 for Facet Syndrome, lumbar spine, with low back pain and the second was 6297 Hearing loss, minimal, Row A Column A.

The form 356 states that the Facet syndrome, lumbar spine with low back pain was rated at 10% and the Hearing loss was rated at 0% with a combined compensable rating of 10%, it also states that both disabilities were permanent.

The recommended disposition in block 11 of the form 356 states Discharge with severance pay.

I did not appeal this decision and the case was sent to the Chief, USAF Physical Disability Division, HQ AFPC/DPSD where the recommended disposition of the FPEB was reviewed and final adjudication was determined which resulted in a form 100 "Request and Authorization for Separation" to be presented to me.

The form 100 is dated March 29, 1985 and the effective date of separation under the authority of AFR 35-4 is April 15, 1985. The copy of the form 100 that I have in my possession states at the top of the page above all other writing "CORRECTED COPY - DESTROY ALL OTHERS and it has in hand written print outside of the bottom right margin a statement that reads 438 ABG / DPM?S Overprint.

Within the form 100, block 3 states my grade as E-4, my name and my social security number. Block 7 for E-4 only states over 2 years service. Block 14 Character of Discharge states HONORABLE. Block 21 B states that I am ENTITLED TO SEVERANCE PAY PER 10 U.S.C. 1203 and that service for pay is 3 years 11 months and 23 days, Block 21 C is NOT checked.

Prior to my discharge date I spoke with a transitional representative and I submitted an application to the Veterans Administration so that my tentative benefits would begin on April, 16 1985, the day after my honorable (medical) discharge.

I have in my possession a copy of my DD214. Block 23, Type of separation reads Discharge, Block 24, Character of service reads Honorable, Block 25 Separation Authority reads AFR 35-4, Block 28 Narrative reason for separation reads DISCHARGE BY REASON OF PHYSICAL DISABILITY WITH ENTITLEMENT TO SEVERANCE PAY.

Block 3 on my DD214 contains an ERROR in my social security number; this error was identified and CORRECTED while I was still on active duty by the Air Force via a request to have a DD215 issued. The DD215 dated May 8, 1985 which I have in my possession states the item number to be corrected as Item 3 and it states "AS READS: xxx-78-xxxx CORRECTED TO READ: xxx-70-xxxx.

The DD214 states that copies were sent to the Kansas Veterans Commission, USDIC and the VA Data Processing Center.

The DD215 states that copies were sent to the VA Data Proc Ctr., Dept of Labor and to the Department of Veteran Affairs.

Upon returning to my home I contacted the VA Medical Center in Kansas City, MO and was scheduled for a compensation exam to establish a percentage of disability rating. I attended the disability rating exam and waited for a letter from the VA that established the combined disability rating for the disabilities that were determined as directly service connected and permanent by the Air Force FPEB and adjudicated by the Chief, USAF Physical Disability Division, HQ AFPC/DPSD.

I received a letter dated July 29, 1985 from the Veterans Administration Medical and Regional Office Center that read as follows:

Dear Mr. Dietz

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 for payment for benefits only for those disabilities which do result from disease or injury.

We do not find in your medical records or elsewhere any evidence of the existence of a hearing loss. If you have additional evidence to show your claimed condition does exist, please send it to us for consideration.

F. J. Gasser

Adjudication Officer

Please note that the only letter that I received from the VA in 1985 severing my direct service connection states that it applies to my reopened claim.

I have never received any notification that my original claim filed prior to my discharge from the Air Force for benefits upon discharge was denied and I have never been provided the reason for the denial nor any opportunity to provide information to correct the decision nor was I told of the rights that I have to appeal the decision.

I have never received any notification from the VA that they had reopened a claim for me in 1985 in regard to my adjudicated direct service connected disabilities and given the opportunity to produce well grounded evidence that supported the action to reopen a denied claim.

I do not understand why the VA stated that they could not find in my medical records or anywhere else the existence of a hearing loss. My hearing loss disability was permanent and the FPEB assigned a 0% rating that was adjudicated upon my acceptance of the FPEB findings as noted on the form 356 dated January 18, 1985.

I think that errors were committed in 1985 and that they could be Clear and Unmistakable Errors but I am unable to determine what this is because I have never been provided a notification as to why my original claim, filed why I was still on active duty, was denied.

Can you tell me why my original claim was denied and why my direct service connection was severed?

Can you tell me why a reopened claim request was made on my behalf by the VA in 1985?

Can you tell me why the reopened claim was denied in 1985 and what existing laws were used to make the determination that my direct service connected back disability could not be classified as a disease or injury?

Can you tell me why in the 1985 letter that denied my reopened claim stated that the hearing loss, which was final and adjudicated by the Chief, USAF Physical Disability Division, HQ AFPC/DPSD and evidenced on my form 356, could not be found by the VA Adjudication Officer?

I have had a request into the Wichita VARO since September 2009 requesting a copy of my C file but to this date I have not ever received a copy of my C file to review the information from 1985.