Is This An Early Effective Date Or Cue?

[BasehorVet]

In late 10-2010 I submitted memorandum letter from the Department of the AF that was dated 8-2010, this letter was sent to me because I asked the AF Board to change military records to change my dd214 from JFL to JFL1, the AF Board allowed the request to go forward by saying that the even though the request was not timely filed (26 years after discharge) that in the interest of justice that they will overlook the time requirements.

Subject - Application for correction of military records.

Requested Action - The applicant is requesting to have his separation code of JFL changed so he can receive benefits that have been denied him by the Veterans Administration.

Facts - Applicant was referred to the informal physical evaluation board on 14 Dec 1984, for facet syndrome, lumbar spine, with low back pain. The IPEB found member fit for duty. Member requested a hearing with counsel at the formal physical evaluation board. On Jan 18 1985 the FPEB recommended discharge with severance pay with a disability rating of 10%. The member non-curred with the FPEB and in his rebuttal to the Secretary of the Air Force (SAFPC) requested that he be given additional testing on his back. On March 25 1985 after review of the case file and proceedings from the FPEB the SAFPC recommended discharge with severance pay with a disability rating of 10%. Message was sent which established the discharge date of April 23 1985. Member served 3 years 11 months and 23 days of active service.

Discussion - Member is wishing to receive benefits from the Veterans Administration. Members dd214 form correctly reflects that member was discharged by reason of a physical disability and entitled to severance pay. JFL is the correct separation code for a person who was approved for a medical separation with severance pay.

I applied for my VA benefits while still on active duty so that I would be entitled the day after my discharge. 3 months later the VA denied my claim and now, since I have E-benefits, I see where they say that I was denied because their is no evidence in my SMR or elsewhere that I had any injury or disease during service. I have a Line of Duty determination that states my injury was caused by direct physical trauma to my lower spine while working as an aircraft mechanic in my files from the MEB investigation and over 2 years of physical therapy while on active duty. My final diagnosis was from the Chairman of the Orthopedics Department at Malcolm Grow Medical Center.

I have copies of my SMR's and Admin records that I made 26 years ago and every time in the past I tried to submit them, they would not accept them because they said that all the information was used to deny my original claim in 1985. I have been denied in 1985, 1990, 1999 and now 2009.

I am hoping that the following VA Memo regarding reconsideration of claims is in the works. VA Memo regarding reconsideration of claims

Current Diagnosis from VA med center - Major depression disorder due to uncontrollable pain (90 OXY's monthly), Chronic low back pain, MRI says herniated disc, 3 bulging discs, degenerative facet and spondylosis of entire lumbar spine. Just had C&P for hearing - hearing loss due to aircraft noise exposure, bilateral high range freq loss, bilateral tinnitus, seeing a ENT specialist this month for the discharge from ears, canal scarring and tympanic perforations first diagnosed on my initial hearing exam in 1985. Vertigo has been making my life even more miserable.

Basically, they claim that my records held no mention of a disability or injury incurred or aggravated during active duty upon discharge in 1985, Cue based on records available at the time they denied me 3 months after AF and DOD said 10% disabled and forced me out. Anyone would reasonably agree that I should have at least received a 10% rating for the disabilities based upon the appeal determination by the Secretary of the Air Force. I am not disputing medical opinion but only that I had a statutory benefit entitlement that was ignored in 1985.

[NSA-Saigon-ET]

I think that memo you were referencing is 38 CFR 3.156 which is the regulation concerning new and material evidence.

You can re-open a closed claim citing that regulation if you have found new evidence to support what was denied before.

There are some additional rules on this new evidence which may allow the EED to be dated from the original filing.

[jbasser]

Did the VA have this information at the time of the decision?

You could use 3.156. I also suspect you may have a valid cue since this decision as made before the VCAA of 2000.

I would run this by an expert. (Not a VSO)

JBasser

[BasehorVet]

JB, my original dd214 copy shows that I requested in block 20 that copy 6 be sent to KS Dir of Vet Affairs and in remarks it says copy 3 went to VA Data Processing Center and copy 6 to Kansas Veterans Commission. The DD214 states under other special information block 28 discharge by reason of physical disability with entitlement to severance pay. I applied before my medical separation from active duty (prior to the disability at discharge processing now used) using the DAV to have my entitlement set at the day after discharge, this would be my early effective date April 23 1985.

I do not know what else I could have done in order for them to have my records before they made the decision to deny my original claim. In 1990 I sent my copy of the FPEB transcript to the VA and asked for reconsideration, they replied back that the transcript was not new because the FPEB transcript was used in the 1985 ruling to deny my claim.

I have a VSO but he is not helpful, can you send an email giving me some recommendations for legal representation? I am in Kansas. I have talked with a law firm but since I have not gotten as far as to filing a NOD, I am on my own.

[jbasser]

You have mail.

Basser

[NSA-Saigon-ET]

First I would at least file a new NOD on the latest denial.

I am assuming you want to attack the original decision from 1985.

Could you scan that rating decision from 1985 and post it here, first editing out personal names, SS#, etc.

I would be very interested to see what they were using if they ignored all your medical evidence from your SMR.

[john999]

Unless the VA listed or referred to the FPEB transcript in the original 1985 rating then they excluded it. I have much the same situation where the VA had information that they excluded in a decision. That is part of the process of winning a CUE. You have to show that the evidence excluded would have changed the outcome of the rating decision. That is not so easy since the VA depends on what "reasonable minds" would have concluded. The "reasonable minds" are the VA. I have not found them reasonable. If they are saying they considered the FPEB, but there is no proof they did consider it then I think you have a CUE, but you will have to fight about it. When the VA gets in a tight spot they just lie. This is why I got a lawyer. They are sort of asking you to prove a negative. You have to show that the VA did not consider your FPEB. Your local VARO won't buck this decision because of 25 years of retro at stake. Their posistion is that they considered it, so you don't have a CUE. I think you do have a CUE.