Bva - Info I Am Unfamiliar With - A New One On Me

[carlie]

This looks to me like it could open up some additional claims at the BVA level.

Going by this, the vet sprung out a new claim, although it is in relation to the issue at hand.

What is your opinion ?

http://www4.va.gov/v...es3/1021541.txt

The appellant has also submitted additional diagnoses of

pseudomonas pneumonia and bronchiectasis which were not

previously considered by the RO.

***** The Board notes that, in certain circumstances, a new claim

can be raised with the submission of a diagnosis not previously considered.

See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008).

The appellant alleges a pseudomonas pneumonia infection incurred

during service resulting in bronchiectasis. As these

allegations and diagnoses were not previously considered by

the RO, the Board determines that finality does not attach to

these diagnoses.

[68mustang]

This looks to me like it could open up some additional claims at the BVA level.

Going by this, the vet sprung out a new claim, although it is in relation to the issue at hand.

What is your opinion ?

http://www4.va.gov/v...es3/1021541.txt

The appellant has also submitted additional diagnoses of

pseudomonas pneumonia and bronchiectasis which were not

previously considered by the RO.

***** The Board notes that, in certain circumstances, a new claim

can be raised with the submission of a diagnosis not previously considered.

See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008).

The appellant alleges a pseudomonas pneumonia infection incurred

during service resulting in bronchiectasis. As these

allegations and diagnoses were not previously considered by

the RO, the Board determines that finality does not attach to

these diagnoses.

This reminds me of the adenovirus vaccine testing that I was subjected to in Navy bootcamp in 1967. I did not find out about being a lab rat for the vaccine testing until until many years after the end of my enlistment. I was looking through copies of my military medical records and there was a notation about the testing ,which I never agreed to. I remember that we had some recruits who got very sick after getting some vaccines. I don't know if it was because of those vaccines,but they did get respiratory illnesses. After I got out I got very sick with respiratory illnesses,but I don't know if it was due to the vaccine.

68mustang

[john999]

You know the BVA actually changed my diagnosis in my CUE claim. They changed my DX from residuals of schizophrenia to chronic, undifferentiated schizophrenia. For this I was awarded 10%. Who has ever heard of someone with chronic schizophrenia being only 10% disabled? They still denied my CUE. The VA had not considered the DX of chronic, undifferentiated schizophrenia until they looked at the evidence from my doctor 40 years ago which had been excluded from the record in my rating.

[jbasser]

I can see the Pnumonia being the onset of your chronic bronchitis. They most likely will rate the current chronic condition.

You keep reading. The more you read the more you will find.

Hang in there. You are about done.

John

[Stretch]

For some reason the link did not come up....I think it is because it is gov4 site.

FYI, about the adenovirus, I had that also vaccine also. Some information about this is on Wiki here:

http://en.wikipedia.org/wiki/Adenovirus_infection

[carlie]

For some reason the link did not come up....I think it is because it is gov4 site.

Stretch,

The link is OK - the BVA search site went down for about 15 hours yesterday.

[Berta]

It looks to me that in 2006 the VARO still denied and did not re-open the claim (maybe by saying the evidence was redundant or cumulative) and the veteran appealed to the BVA who determined not only was the evidence relevant and nor cumulative but they did grant the disability as SC (mayve the VARO jurisdiction had been waived)

This is a key part of the decision:

“The appellant has also submitted additional diagnoses of

pseudomonas pneumonia and bronchiectasis which were not

previously considered by the RO. The Board notes that, in

certain circumstances, a new claim can be raised with the

submission of a diagnosis not previously considered. See

Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). The

appellant alleges a pseudomonas pneumonia infection incurred

during service resulting in bronchiectasis. As these

allegations and diagnoses were not previously considered by

the RO, the Board determines that finality does not attach to

these diagnoses.”

In this synopsis of Bogg V Peake:

http://caselaw.findlaw.com/summary/opinion/us-federal-circuit/2008/03/26/156437.html

the site states:

“A decision denying a veteran's 2002 claim for service connection for hearing loss in one ear is reversed and remanded for further proceedings where the Court of Appeals for Veterans Claims applied the wrong legal standard in determining that a 2002 claim was the same as his 1955 claim that had already been denied. The "factual basis" of a claim for purposes of 38 U.S.C. section 7104(b) is the veteran's disease or injury rather than the veteran's symptoms of the disease or injury. A properly diagnosed disease or injury cannot be considered the same factual basis as distinctly diagnosed disease or injury. “

I am sure pondering over that point.

http://www.law.cornell.edu/uscode/38/usc_sec_38_00007104----000-.html

In part:(38 USC 7104 (b)

(b) Except as provided in section 5108 of this title, when a claim is disallowed by the Board, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered.

I recall the VARO years ago tried to say I re-opened something on the same factual basis as a previous denial.And would not consider it as “re-opened”.

The BVA did re-open the clam and sent it back to the VARO for adjudication as it was Not the same factual basis as a past claim.

Still I am not sure what this decision means and there is a link to Bogg in the caselaw hyperlink.

Perhaps the whole case re Bogg will explain this all better.

I sure wish we had a copy of the original decision.