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.

[kathyred]

I want to thank everyone for your input. I am in the process of hiring a lawyer. It seems the VA has everyone confused on this one. Berta I do have 3 very strong IMO's connecting COPD to begining while in service and 2 strong IMO's connecting Diesel exhaust to aggravating his COPD. I had assumed that since the VA started referring to the claim as for lung disorder in 2006 that is what we have been working to prove. The asthma claim has been incorporated into his diagnosis of COPD with asthmatic component. I will keep you posted as to the outcome.

[Berta]

Has VA received these 3 IMOs yet?

A claim in the system since 1994 is troubling to me.I assume you mean this same claim has been continuously prosecuted (with no lapse at all in appellate status) since 1994.

John -you always have a correct and profound take on this stuff- I sure agree with you.

When I proved SC death in 2009, the VARO fought me for almost a year on an FTCA offset refund that was established by VA case law and the FTCA regs (and even the BVA in a past denial I had many years ago)said was Mine- and not theirs. You would think I was asking for the VARO to send me their personal money they had put into college funds for their kids!

You are right. No one-not even the regional counsel up here-wanted to take the responsibility to send me my money.I couldnt believe how he got so dumb on FTCA law.

He was the same RC that got them to CUE themselves when they withheld years of DIC to the tune of 40 thousand. He ordered them to pay me that but I guess he was unwilling to order them to pay me the offset refund (FTCA).

Very few offsets to FTCA are ever refunded- I might still be the only case.

I know I gripe about this here a lot.It still pisses me off and I even had to argue with the General Counsel lawyers over this until finally some honcho read my etters to them with the FTCA regs re: offsets and Bingo-the VARO was ordered to shell out the dough.

I dont know if it is because they think I must be some defenseless widow or the fact I had no lawyer for the FTCA matter-

so maybe they thought I would buy what they were selling when they argued against my right to this money- in any event-

John is right-

the recent VA employee Bonus amounts are at VAWatchdogtoday this AM and it shows how VA pays bonuses yet many VA employees take no responsibility over awards that might even be higher then the bonuses they get.I think they are afraid to sign off on many awards.

Compensation sure isn't a Bonus to any of you- it is due to your sacrifice.You all justify their jobs.They need to remember that.

Edited February 14, 2011 by Berta

[Berta]

"It seems the VA has everyone confused on this one. Berta I do have 3 very strong IMO's connecting COPD to begining while in service and 2 strong IMO's connecting Diesel exhaust to aggravating his COPD"

I saw a similiar claim some time ago- the veteran had to specify the exact type of diesel fuel and then prove exposure to it.

The VA will also try to use post service occupations to deny claims like this.Like if he worked in a full service gas station after service.or if he smoked.Best bet is sending them the IMOs.

[kathyred]

Has VA received these 3 IMOs yet?

Yes they have all of them. I believe that is why in the BVA denial they 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 the 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).”

A claim in the system since 1994 is troubling to me.I assume you mean this same claim has been continuously prosecuted (with no lapse at all in appellate status) since 1994.

No that claim was denied and never appealed. This claim began in Dec 2005.

John -you always have a correct and profound take on this stuff- I sure agree with you.

When I proved SC death in 2009, the VARO fought me for almost a year on an FTCA offset refund that was established by VA case law and the FTCA regs (and even the BVA in a past denial I had many years ago)said was Mine- and not theirs. You would think I was asking for the VARO to send me their personal money they had put into college funds for their kids!

You are right. No one-not even the regional counsel up here-wanted to take the responsibility to send me my money.I couldnt believe how he got so dumb on FTCA law.

He was the same RC that got them to CUE themselves when they withheld years of DIC to the tune of 40 thousand. He ordered them to pay me that but I guess he was unwilling to order them to pay me the offset refund (FTCA).

Very few offsets to FTCA are ever refunded- I might still be the only case.

I know I gripe about this here a lot.It still pisses me off and I even had to argue with the General Counsel lawyers over this until finally some honcho read my etters to them with the FTCA regs re: offsets and Bingo-the VARO was ordered to shell out the dough.

I dont know if it is because they think I must be some defenseless widow or the fact I had no lawyer for the FTCA matter-

so maybe they thought I would buy what they were selling when they argued against my right to this money- in any event-

John is right-

the recent VA employee Bonus amounts are at VAWatchdogtoday this AM and it shows how VA pays bonuses yet many VA employees take no responsibility over awards that might even be higher then the bonuses they get.I think they are afraid to sign off on many awards.

Compensation sure isn't a Bonus to any of you- it is due to your sacrifice.You all justify their jobs.They need to remember that.

[Berta]

I am glad you clarified this:

"A claim in the system since 1994 is troubling to me.I assume you mean this same claim has been continuously prosecuted (with no lapse at all in appellate status) since 1994."

"No that claim was denied and never appealed. This claim began in Dec 2005."

The earliest effective date for retro-if the claim succeeds-is Dec 2005.

The BVA often gives us clues.

For example sometimes they (BVA)will deny a CUE claim without prejudice-meaning if the veteran rewords and re-files the CUE there is possibility the newer CUE will succeed.

In your case the BVA

"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 that way the BVA acknowledged he had basis for filing a valid re-opened claim based on the new evidence.A clue to a potentially successful claim.

In 1998 I had a denial from Motion to Reconsider at the BVA for a claim I filed regarding my husband's SC PTSD causing his death due to heart disease.This was the weakest claim I had.

In the denial of the Motion to Reconsider, the BVA stated that I had succeeded on Section 1151 death and received DIC already but if,in the future I claimed and proved a SC disability caused or contributed to the veteran's death-then

I would receive DIC on a direct SC death basis, recover any FTCA offset, and also be eligible for any ancillary benefits I did not receive with the 1151 DIC.

There was the clue-possibly it wasn't over yet. But I thought it was then.

I had won under 1151 at the VARO level. I knew a SC death was far better then a 1151 death. There sure is no honor in a 1151 death.(death by VA)

When DMII went onto the AO regs,my daughter in the Military began telling me I should re-open.She claimed dad's symptoms were highly consistent with DMII and since they malpracticed on so much already-maybe they malpractice on DMII.She was right.

I went back to read over the past BVA denial of the1998 Motion.I then prepared the DMII claim in 2003. After BVA awarded that claim in 2009 -I used the BVA Motion as some of my evidence to get the FTCA offset matter resolved.

In spite of that statement in the 1998 BVA case,and the actual FTCA regs- it still took me almost a year to get my money- the reason I went on and on in my last reply-

It just goes to show the major difference between the BVA and the ROs.

BVA decisions are prepared by lawyers and they know how to read.

BVA decisions contain lots of repition regarding the regs etc. but also contain a WEALTH of information that can help other claims succeed.

Edited February 15, 2011 by Berta

[kathyred]

thanks Berta. Does this mean they want me to file to reopen a claim for COPD

so they can now only pay benefits from when it was reopened?