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Is This An Early Effective Date Or Cue?

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BasehorVet

Question

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.

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My denial letter dated July 29, 1985 from the Veterans Administration Medical and Regional Office Center that read as follows:

Dear Mr. xxxx

We have carefully considered your reopened claim for service connection of hearing loss and back disability.

We have found it necessary to deny service connection for your back disability because this condition, under existing laws, cannot be classified as a disease of injury. The law allows for payment for benefits only for those disabilities which do result from disease or injury.

We do not find in your medical records or elsewhere any evidence of the existence of a hearing loss. If you have additional evidence to show your claimed condition does exist, please send it to us for consideration.

F. J.

Adjudication Officer

I sent this inquiry through IRIS on August 21, 2010 and I list their response below the questions.

I think that errors were committed in 1985 and that they could be Clear and Unmistakable Errors but I am unable to determine what this is because I have never been provided a notification as to why my original claim, filed why I was still on active duty, was denied.

Can you tell me why my original claim was denied and why my direct service connection was severed?

Can you tell me why a reopened claim request was made on my behalf by the VA in 1985?

Can you tell me why the reopened claim was denied in 1985 and what existing laws were used to make the determination that my direct service connected back disability could not be classified as a disease or injury?

Can you tell me why in the 1985 letter that denied my reopened claim stated that the hearing loss, which was final and adjudicated by the Chief, USAF Physical Disability Division, HQ AFPC/DPSD and evidenced on my form 356, could not be found by the VA Adjudication Officer?

I have had a request into the Wichita VARO since September 2009 requesting a copy of my C file but to this date I have not ever received a copy of my C file to review the information from 1985.

VA IRIS Answer

This message is in response to your inquiry to the Department of Veterans Affairs on August 21, 2010, regarding your benefits. We see conflicting information regarding your original claim and there reopened claim in 1985, so we are forwarding this inquiry to our Wichita Regional Office, to research the matter, and send you the original rating decision. They will answer your questions regarding these claims.

The Air Force and VA are separate organizations. The Air Force granted service connection, but the VA didn't. The Air Force still considers those conditions to be service connected. Service connection was never severed by the VA, because it was never established by the VA.

I guess I should follow up with the IRIS question and ask for an update.

Victor

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I can see now what the VA was saying about the USAF and the VA and it makes sense, somewhat.

However, you can clear it up when you get your copy of the C-file.

You can request it online again and I strongly suggest you do that immediately. You can go to your VSO and request they help you in getting your C-file. It really looks fishy that you have not received it. I would lean on the VA in person if you have to to get your rightful copy of the c-file. One of these methods should work for you and it does take some time . Mine was a few months before it showed up in the mail.

Once you have your c-file then you can see exactly what the VA did or didn't.

It certainly looks like the USAF has screwed this up from the beginning.

Good Luck on this!

Edited by NSA-Saigon-ET
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  • HadIt.com Elder

Yes, when you get the C-File you can see exactly what evidence they had in their possession when they denied your claims. They may have had the evidence you need right there in your file, but just ignored it. I think this is quite common in older claims. In my original claim they based the entire rational for the award on notes from a VA doctor. They ignored the SMR's and my doctor's report. Before VCAA the VA just did what they felt like doing.

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  • HadIt.com Elder

From the Late Great Macho Man Randy Savage (Poffo) OOOOOHHHH--- YEAHHHHHHH

That NWG statute was replaced by the current. Wording since the VCAA.

Basser

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