Va Made In Cue In Granting Service Connection For Als

[CALS]

My husband was granted disability in 2009 for ALS. The VA now says they made a CUE in granting his service connection, due to his active duty being for training, and are proposing to cut ALL benefits. HELP!!!

[Berta]

Yes, that could help him in my opinion-

also remember the ALS regs they initially used to award him are Presumptive regulations.

Do his SMRs reveal ANYTHING symptomatic of possible inservice early manifestations of ALS for a Direct SC award instead of presumptive award?

http://www.alsa.org/about-als/symptoms.html

[Philip Rogers]

WOW!!!! That is great!!! I'm not really familiar w/Title 10, but that may be your saving grace. I'd at least request the hearing, ASAP, like yesterday. If you fail to meet the deadline, they will reduce him. Then I'd go to the hearing w/any proof of the ADSW you have. In the meantime I'm trying to find out more about Title 10. You should too, as I'm not a great online researcher. Maybe others will jump in.

pr

Hi All, I may have found something. His 4 months that he was put on active duty after boot camp, and before he got his full time job with the Guard, may be "ADSW" (Active Duty for Special Work) under Title 10. Any comments? I know not everything will show up on his DD 214. Any ideas where I go from here. My service Officer(VFW) is not a lot of help, but I am talking with one from Vegas(PVA) who is really good. Only problem Vegas is 8 hrs away. Can't talk with him till Thursday, and my local guy is out till next Monday!!

[carlie]

He was granted service connection in 2009, retroactive back to 2008 when the law went into affect.

CALS,

Is it possible for you to scan and post the Reasons and Bases Section of the 2009 Rating Decision

that granted SC ?

If you're able to do it - be sure to redact the personal info such as name, SSA/VBA claim number,

address, etc..

[Philip Rogers]

Here are some links on Title 10. I haven't had time to review them, yet.

pr

http://www.law.cornell.edu/uscode/10/12304.html

http://www.bankersonline.com/lending/scra_activeduty.html

http://www.law.cornell.edu/uscode/10/usc_sec_10_00001204----000-.html

[Berta]

I need to add here something on the point I made as I cannot tell if the VA considered a possible direct SC award when they cl;aimed they erred in the ALS presumptive award::

In this case the veteran's SMRs provided BVA with undebatable evidence of ALS -symtomatic within the veteran's service period.This was a widow's claim but it makes the point I did as to direct SC- that could be possible-when presumptive SC cannot apply.

http://www.va.gov/vetapp11/Files1/1108452.txt

“The death certificate shows that the Veteran died at home in March 2006, at age 45. The immediate cause of death was respiratory arrest due to amyotrophic lateral sclerosis. There was no autopsy. However, there is no dispute as to the cause of death because medical evaluations prior to the Veteran's death well documented the disease and resulting debility.”

“Service-connection for the cause of the Veteran's death was granted based on the presumptions found in new regulation 38 C.F.R. § 3.318. As a liberalizing regulation, benefits were effective as of the date the regulation became effective, which was the date it was published, September 23, 2008. See 38 U.S.C.A. § 5110(g) (West 2002); 38 C.F.R. §§ 3.114, 3.400(p) (2010). “

"However, the presumptions do not prohibit the establishment of service-connection on a direct or primary basis by showing that the fatal disease was incurred or aggravated during the Veteran's active service"

The widow successfully proved that although presumption was granted, she proved inservice ALS on a direct basis warranting a better EED than that of the liberalizing regulation.

This is a great case that shows how an EED can be favorably changed and also how one type of award of SC can be rendered moot and trumped by another more favorable award (such as what I did last year on my claim)

Even his 201 personnel file could reveal indications of things that would be symptomatic of inservice ALS.

I assume you have his complete SMRs and personnel records.

Does he receive SSDI and if so, do those records reveal anything that could help here-if you can obtain them -as I assume the SSDI doctor did a full review of all available medical records to include service records.

[Philip Rogers]

Berta, you posted this earlier: "ALS is presumptive in all vets with 9- days of continuous active service."

I assume the "9- days" was meant to be "90 days." That being the case they only need to prove the 90 day service and I believe the Title 10, ADSW, covers that. I haven't reviewed the AD for training criteria but that may also qualify him. The VA may have CUEed him on awarding under the wrong rule, presumption, rather than direct SC or vice versa. Stopping the sever is the immediate problem and the hearing must be applied for prior to the 30 day allowance. They must do that today and fax a copy to the VA, immediately!!!! Prove the Title 10 and they win!!!

pr

I need to add here something on the point I made as I cannot tell if the VA considered a possible direct SC award when they cl;aimed they erred in the ALS presumptive award::

In this case the veteran's SMRs provided BVA with undebatable evidence of ALS -symtomatic within the veteran's service period.This was a widow's claim but it makes the point I did as to direct SC- that could be possible-when presumptive SC cannot apply.

http://www.va.gov/vetapp11/Files1/1108452.txt

“The death certificate shows that the Veteran died at home in March 2006, at age 45. The immediate cause of death was respiratory arrest due to amyotrophic lateral sclerosis. There was no autopsy. However, there is no dispute as to the cause of death because medical evaluations prior to the Veteran's death well documented the disease and resulting debility.”

“Service-connection for the cause of the Veteran's death was granted based on the presumptions found in new regulation 38 C.F.R. § 3.318. As a liberalizing regulation, benefits were effective as of the date the regulation became effective, which was the date it was published, September 23, 2008. See 38 U.S.C.A. § 5110(g) (West 2002); 38 C.F.R. §§ 3.114, 3.400(p) (2010). “

"However, the presumptions do not prohibit the establishment of service-connection on a direct or primary basis by showing that the fatal disease was incurred or aggravated during the Veteran's active service"

The widow successfully proved that although presumption was granted, she proved inservice ALS on a direct basis warranting a better EED than that of the liberalizing regulation.

This is a great case that shows how an EED can be favorably changed and also how one type of award of SC can be rendered moot and trumped by another more favorable award (such as what I did last year on my claim)

Even his 201 personnel file could reveal indications of things that would be symptomatic of inservice ALS.

I assume you have his complete SMRs and personnel records.

Does he receive SSDI and if so, do those records reveal anything that could help here-if you can obtain them -as I assume the SSDI doctor did a full review of all available medical records to include service records.