What Is The Issue To Be Decided

[kathyred]

I wanted to pose this question to all you wonderful people out there.

First a little back ground

My husband initially filed a claim for chronic asthma in Dec. 2005 after being denied for emphysema in1994.

6/06/2006 RATING DECISION the medical description was Chronic Asthma.

2/03/2007 SOC ISSUE was service connection of lung disorder. In the reasons and bases it states “Your report of asthma in service is not a medical finding. Your bronchitis in service was acute. You do not now have chronic bronchitis. Based on the VA examiner’s finding, service connection for a lung disorder is not shown….”

05/17/07 Filed VA-9 On his VA9 he checked the box that states “I Want To Appeal All Of The Issues Listed On The Statement Of The Case And Any Supplemental Statements Of The Case That My Local Va Office Sent To Me.”

6/04/2007 SSOC ISSUE was service connection of lung disorder. In the reasons and bases it states “…the evidence does not show that the veteran’s current lung condition, chronic obstructive pulmonary disease was incurred in or aggravated by his military service…”

10/12/2007 SSOC ISSUE was service connection of lung disorder. In the reasons and bases it states “…chronic obstructive pulmonary disease is not caused by or a result of the veteran’s military service….no formal diagnosis of asthma by a medical care provider…..no documentation found of a diagnosis or treatment of bronchitis…..”

May 2009 The case was remanded to the AMC for developing additional evidence on “...you appeal for a respiratory disability, to include as due to asbestos exposure.”

9/29/2009 SSOC from AMC ISSUE Service connection for a respiratory disability, to include as due to asbestos exposure. In Reasons and bases “….we are unable to establish service connection for a respiratory disability. For the most part, the evidence of record indicates your emphysema is not related to your period of military service.”

Jan 2011 In the denial from the BVA the Board “defines the current issue on appeal as entitlement to service connection for respiratory disability other than COPD/emphysema to include chronic asthma and pulmonary disease due to asbestos exposure.” And goes on to state “….In this regard, to the extent that the clinical evidence indicates that the Veteran’s COPD/emphysema was aggravated by his alleged exposure to diesel exhaust fumes in service, the Veteran is hereby advised at this juncture that as service connection was previously denied in a prior final rating decision and as he has expressly stated that he present claim on appeal is for VA compensation for a respiratory disability other than COPD/emphysema, he may wish to pursue a claim for new and material evidence and apply to reopen his COPD/emphysema claim, per 38 CFR 3.156 (2010).”

The Va first referred to this claim when we filed the claim in Dec 2005 as Chronic Asthma and then in Feb 3 2007 on SOC referred to the claim as lung disorder. On 5/17/2007 we filed VA-9 and wanted to appeal all of the issues listed on the SOC and SSOC that were sent to me. Even the remand on 5/19/09 the Issue was entitlement to service connection for a respiratory disability, to include as due to asbestos exposure. The last time this claim was being referred to as Asthma was 2006 and now in 2011 on the BVA decision it was referred to as "respiratory disability other than COPD/emphysema to include chronic asthma and pulmonary disease due to asbestos exposure.”

The main question I have is when the VA started referring to this claim by names other than Chronic Asthma did that open a claim for all respiratory disabilities. Especially since this was done on the SOC prior to the VA-9 being filed?

Thanks for any help you can give me on this Issue.

[Berta]

This is my take on this:

'Jan 2011 In the denial from the BVA the Board “defines the current issue on appeal as entitlement to service connection for respiratory disability other than COPD/emphysema to include chronic asthma and pulmonary disease due to asbestos exposure.”

I assume they denied COPD as related to asbestos exposure. Asbestos claims almost always need an IMO unless the issue is mesothelioma.

They will use any smoking history as well as any post service occupation to try to show the veteran's asbestos exposure was Not due to service for COPD claims unless there is significant evidence to the contrary (or a strong IMO)

And goes on to state “….In this regard, to the extent that the clinical evidence indicates that the Veteran’s COPD/emphysema was aggravated by his alleged exposure to diesel exhaust fumes in service, the Veteran is hereby advised at this juncture that as service connection was previously denied in a prior final rating decision and as he has expressly stated that he present claim on appeal is for VA compensation for a respiratory disability other than COPD/emphysema, he may wish to pursue a claim for new and material evidence and apply to reopen his COPD/emphysema claim, per 38 CFR 3.156 (2010).”

They are saying this claim is stronger- clinical evidence indicates potentially that diesel exposure aggravated his lung condition and since his present claim is

"for a respiratory disability other than COPD/emphysema" he should claim that as well as re-open the COPD /emphysema claim on the basis of the "alleged exposure to diesel exhaust fumes in service"

You asked:

"The main question I have is when the VA started referring to this claim by names other than Chronic Asthma did that open a claim for all respiratory disabilities. Especially since this was done on the SOC prior to the VA-9 being filed?"

I feel the answer is YES!

But the EED for any potential retro would be =- from what I see here- the date of actual claim for the specific disability(ies).

The BVA is saying that if he succeeds on a re opened claim- then his EED wold be that of the reopened claim.

It looks to me that he was locked into the asbestos claim and that was denied.

If he has significant evidence (I expect this will definitely take a strong IMO) that diesel fuel exposure caused a SC disability and/or aggravated ANY NSC condition he had (meaning the NSC COPD /emphysema) then in this way all disabilities could be considered in receiving a SC rating.

Does he have a vet rep to help him prepare a claim based on the statements of the BVA?

[LarryJ]

I agree with Berta. What they are in essence doing is they are actually conceding (or, at least opening the door, albeit just a little) ".In this regard, to the extent that the clinical evidence indicates that the Veteran's COPD/emphysema was aggravated by his alleged exposure to diesel exhaust fumes in service" then " he may wish to pursue a claim for new and material evidence and apply to reopen his COPD/emphysema claim, per 38 CFR 3.156 (2010)."

In other words, they have let him know that the stronger of his claim(s) is the original COPD/EMPHYSEMA claim and that he should simply file to RE-open this claim, however, in the request to re-open I would make sure and referr to the request as a request to re-open for a "respiratory disorder" and let THEM figure it out......do not even attempt, at this stage, to diagnos his disability. They will most likely be scheduling a C&P exam (or at least I would think that they would), and you do not indicate if this has been done prior to this stage of the game and what the C&P outcome was vis a vis a diagnosis........................

and, if the C&P diagnosis IS emphysema then I believe that you have a good basis for claiming the earliest effective date as being the date of claim in 1994, but, don't hang you hat on it.

Edited February 13, 2011 by LarryJ

[Chuck75]

Given the way the VA does(or doesn't) do things - - With potential retro going back to 1994. I'd sure consider a lawyer. There is a fair amount of money involved in retro, and, in my opinion, and personal experience, the VA will try to minimize things, even when and if they decide to award.

I agree with Berta. What they are in essence doing is they are actually conceding (or, at least opening the door, albeit just a little) ".In this regard, to the extent that the clinical evidence indicates that the Veteran's COPD/emphysema was aggravated by his alleged exposure to diesel exhaust fumes in service" then " he may wish to pursue a claim for new and material evidence and apply to reopen his COPD/emphysema claim, per 38 CFR 3.156 (2010)."

In other words, they have let him know that the stronger of his claim(s) is the original COPD/EMPHYSEMA claim and that he should simply file to RE-open this claim, however, in the request to re-open I would make sure and referr to the request as a request to re-open for a "respiratory disorder" and let THEM figure it out......do not even attempt, at this stage, to diagnos his disability. They will most likely be scheduling a C&P exam (or at least I would think that they would), and you do not indicate if this has been done prior to this stage of the game and what the C&P outcome was vis a vis a diagnosis........................

and, if the C&P diagnosis IS emphysema then I believe that you have a good basis for claiming the earliest effective date as being the date of claim in 1994, but, don't hang you hat on it.

[john999]

If you are talking about a decade of retro and their are legal questions I would hire a lawyer if I were going to go beyond basic VARO level appeals. The VA is apt to just deny the claim because they don't want to be the guy who makes an award of a couple of hundred thousand dollars. Even when they make gross errors the RO and even BVA don't want to be the ones to hand over multithousand dollar awards. When and if you get to the Court of Vet appeals you want the product that goes to the court to be perfected long before it gets there. Your claim is stirring debate here at Hadit,so you can imagine how the people at the VA see it. The first thing they want to do is CYA for a big award. From experience I can tell you nobody wants to grant huge awards. I can imagine some VA boss saying "I don't care if it is a good claim. I am not paying some damn vet 200,000 bucks on my watch".

[LarryJ]

If you are talking about a decade of retro and their are legal questions I would hire a lawyer if I were going to go beyond basic VARO level appeals. The VA is apt to just deny the claim because they don't want to be the guy who makes an award of a couple of hundred thousand dollars. Even when they make gross errors the RO and even BVA don't want to be the ones to hand over multithousand dollar awards. When and if you get to the Court of Vet appeals you want the product that goes to the court to be perfected long before it gets there. Your claim is stirring debate here at Hadit,so you can imagine how the people at the VA see it. The first thing they want to do is CYA for a big award. From experience I can tell you nobody wants to grant huge awards. I can imagine some VA boss saying "I don't care if it is a good claim. I am not paying some damn vet 200,000 bucks on my watch".

BINGO!

darned good advice

[broncovet]

On another board I asked a similar question to the one John brought up: Rating specialist are "afraid" of approving 200 grand plus retros. The senior rating specialist on the other board that answered the question denied there was any thought to whether the retro was $200 or $200,000...that any rating specialist can approve or deny either.

But in other places the rating specialist basically admitted that the VA was always "robbing peter to pay paul" and they had to "find" things in the budget to pay for this or that by cutting something else.

Some years ago the VA used to require multiple, multiple signatures even at VACO in Washington for retros over 10 years or 250k retro. Then the CAVC said that was illegal, that they could not do that any more. Someone else may even post the case for you to read it if you like.

There is no doubt in my mind that there is much more thought and approval levels now for 200 grand than there is for 200 dollars. You see this at almost every government agency. I pointed out that new, rookie contract specialists dont award 4.5 billion dollar contracts. They award 3 toasters for $14 each until they can prove themselves and work up the totem pole. I expect no difference at the VA. Tho they dont admit it, there is no doubt reluctance for a rating specialist to award two hundred grand retros. They have a name for this in government. It is called "pass the buck". You deny the claim, and it winds up with your supervisor.

In a nutshell, John is right. You are unlikely to collect two hundred grand without a lawyer.