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Should I File A Nod?

Guest rickb54


Guest rickb54

On 26 June 2006 I received service connection for COPD secondary to Asthma. I was awarded 30% with an effective date of 3 May 2005.

I would not have been awarded COPD if I did not have a copy of my medical retirement board procedings which stated asthma with copd secondary.

When I was medically retired on 9 June 1986 I completed a VA Form 21-526E, titled "Veterans application for compensation or pension at seperation from service

" Under nature of sickness #6, diseases, or injuries for which claim is made, and date each began- I left blank

Under Nature of sickness #7 I entered SEE health Record.

I have reviewed this form over and over, the only typed information on the whole form is entered into #6

( the point is not what is there but that it was typed). #6 I had left blank and the va typed in the information.

This form was filled out under the supervision of some damn DAV guy. This guy told me not to put anything except see health record, I did what he said.

It seems to me if the va had read my health record, and reviewed my medical retirement paperwork, I would have been awarded COPD at the time of my retirement.

I want to know what the experts think, based on this information.

Should I file a NOD requesting an earlier effective date for the COPD, based on the fact that all I ever told the va in 1986 on the 21-526e was to see medical records. Wasn't it the va's responsibility to review my records and award me the COPD at the same time I was awarded the asthma, COPD is listed as a secondary condition right after the word asthma on the medical retirement paperwork, and in the medical records. Was it necessary for me to be specific, for COPD since I was not specific with at that time with any of my medical conditions.

Actually, the asthma was awarded on a CUE in 1988 , and the rating decision cites the physical evaluation board's report as evidence for the asthma, in fact it is the first think the va listed in the narrative as evidence. It stands to reason if the rater saw asthma (on the board's paperwork) then he had to see COPD.

What do you think? Do I have a case for NOD?

Or do I claim CUE and go all the way back to 1986, when the asthma was awarded?

Edited by rickb54
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  • HadIt.com Elder

I am no expert but it looks like CUE to me. I would not let it slide if it were me. I am not even sure if you should not ask for one or the other at same time?

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  • HadIt.com Elder




Precedent Opinions for 1989 to 2003


PREC 4-2004 Reconciliation of Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004), and Case Law on Cue Claims Citation: Vet. Aff. Op. Gen Couns. Prec. 4-2004, VAOPGCPREC 4-2004, 2004 Law on CUE

A claim of CUE is a collateral attack on a final decision by a VA RO or the Board. Cook v. Principi, 318 F.3d 1334, 1342 (Fed. Cir. 2002) (en banc), cert. denied, 123 S. Ct. 2574 (2003); Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir.), cert. denied, 528 U.S. 967 (1999).

Pursuant to 38 U.S.C. §5109A(a), a RO decision is subject to revision on the grounds of CUE. See also 38 U.S.C. § 7111(a) (revision of Board decisions based on CUE).

"In order for there to be a valid claim of [CUE], there must have been an error in the prior adjudication of the claim. Either the correct facts, as they were known at the time, were not before the adjudicator - or the statutory or regulatory provisions extant at the time were incorrectly applied." Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc); 38 C.F.R. §20.1403(a) (upheld in Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-97 (Fed. Cir 2000), cert. denied, 532 U.S. 973 (2001)).

CUE exists only when the error is outcome determinative, that is, the error manifestly changed the outcome of the claim decision. 38 C.F.R. § 20.1403(a) and©; Cook, 318 F.3d at 1344; Bustos, 179 F.3d at 1381; Disabled Am. Veterans, 234 F.3d at 696.

"If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable." 38 C.F.R. §20.1403© (upheld in Disabled Am. Veterans, 234 F.3d at 697).

Disagreements about how the facts were weighed or evaluated and failures of the duty to assist cannot be CUE. 38 C.F.R. §20.1403(d)(2) and (3) (upheld in Disabled Am. Veterans, 234 F.3d at 697).

If the evidence establishes CUE, an undebatable, outcome-determinative error, the prior decision must be reversed or revised, 38 U.S.C. §§ 5109A(a), 7111(a), and the decision constituting the reversal or revision "has the same effect as if the decision had been made on the date of the prior decision," 38 U.S.C. §§ 5109A(b), 7111(b).

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  • HadIt.com Elder

I was reading some BVA decisions and the board said that to win a CUE is a rare event. If you are P&T what is the worst thing that could happen if you file a CUE on a very old original claim? Could the VA challange the fact of service connection itself? Every time I reopen my claim I wonder where it is going this time.

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Guest anfrnkie
I was reading some BVA decisions and the board said that to win a CUE is a rare event. If you are P&T what is the worst thing that could happen if you file a CUE on a very old original claim? Could the VA challange the fact of service connection itself? Every time I reopen my claim I wonder where it is going this time.
hi john, i have 50 apleas in all are cue, and each appleal,has a letter of proof, right now va is working on this anfrnkie
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  • HadIt.com Elder
hi john, i have 50 apleas in all are cue, and each appleal,has a letter of proof, right now va is working on this anfrnkie

Dear anfrnkie, are you also frank? How about posting an e-mail address so folks can write you personally . . . just a thought ;-) ~Wings


Joined: 29-May 06

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Joined: 29-May 06

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We filed an NOD for an earlier effective date on an initial rating, and didn't get it until two years later when it reached the Board of Veterans Appeals. But we didn't call it a CUE, just an NOD. I agree, you could phrase it something like, "I am issuing a formal Notice of Disagreement due to the fact that the VARO appears to have made a clear and unmistakable error (CUE) due to the following........" You could ask for a De Novo review at the VA regional level, that might help keep things simple.

In theory, the VA is obligated to review and consider all evidence in your service medical records, even for conditions you don't specifically claim, and rate everything that requires a rating. In practice, this doesn't happen. If you look at the VA's first rating decision letter to you right after you left the military, it should state something to the effect that the veteran's service medical records were "reviewed and considered." If they state it, they darn well better have done exactly that. Usually, they don't.

You'll want to try to keep things simple, which means trying to keep it local. If you don't get what you want locally, then it doesn't matter what you call it, an NOD vs. CUE, you'll still be waiting at least a couple of years for an appeal hearing at the Board, and then even more time for a Court hearing, if you take it that far.

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Guest rickb54


Thank you for your sound advice. I had not considered a De Novo review but that would seem to be the way to approach this. I also like the way you worded it, "I am issuing a formal Notice of Disagreement due to the fact that the VARO appears to have made a clear and unmistakable error (CUE) due to the following....

Also thanks to Adora for her info concerning CUE.

I am going to work on this because I really feel that I got shafted 20 yers ago on this one, and there may be some serious back pay coming if I can prove my case.

As I mentioned before, I won my claim for the asthma on CUE in 1988 two years after I retired. It seems to me that some at the VA must have seen the COPD secondary to Asthma those many years ago.

Anyway I have nothing to Lose.

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That's the beauty of it, Rick, you don't have anything to lose!

I'm assuming you have your service medical records and your VA examination records from back then. If not, please get them. The other thing that would help you a lot would be an independent medical opinion from a civilian healthcare physician specialist in the areas of asthma and COPD.

Some discussion in Q & A form below, taken from http://goldcopd.com/download.asp?filename=8f_QandA.doc.

Question: How does COPD differ from asthma?

Answer: Both COPD and asthma are chronic obstructive airways diseases, have major symptoms in common, and both may occur in the same individual. Both asthma and COPD involve inflammation in the lungs, but the characteristics of the underlying inflammation are very different, resulting in very different responses to treatment. Whereas airflow limitation that occurs in asthma is often completely reversible, either spontaneously or with treatment, in COPD it is never fully reversible, and is usually progressive if exposure to noxious agents continues. In general, however, asthma develops in childhood, whereas COPD occurs mainly in adulthood.

Question: Does asthma lead to COPD? Is there a link between asthma and COPD?

Answer: There is undoubtedly an overlap between asthma and COPD. There is evidence that longstanding asthma can lead to changes in the structure of the airways and partly irreversible airflow limitation. Individuals with asthma who are exposed to noxious agents that cause COPD may develop a mixture of “asthma-like” inflammation and “COPD-like” inflammation.

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Guest rickb54

Vicki, Adora and others.

I have all my active duty medical records, which state asthma with copd secondary to asthma, diagnosed in Oct 1985. I guess, At that time I was ignorant and did not know asthma and COPD were different diseases, or I didn't realize that I was even diagnosed with COPD, I was 32. In 2002 a va doctor, and then an army doctor told me I had COPD and must have had it for some time. It was then that I reviewed my active duty medical records and sure enought there it was in black and white and plain english. Twelve pages of nothing but Asthma with copd just before my medical retirement. So after I reviewed my records, I called my allergist, and asked him to review the records and write me a statement. He did, it said that it was more likely than not.... I then got letters from the VA doctor, and Army doctor who stated the same thing it was more likely than not. Finally when I went for the c/p exam the doctor wrote more likely than not. So I ended up with four opinions that state more likely than not due to service...

I submitted the claim, and a year later here I sit with 30% for the copd, based on a breathing test (PFT) taken in Sept 2005. Ironically, I have taked PFT in the past that show worse results than this did. that is why I am rated 60% for the asthma. Interesting enought I had to fight to get service connection for the asthma for two years after I was medically retired because of asthma. After two denials I finally got service connection for it when the va called CUE on itself. The va should have caught the COPD at the same time....

I have perfected my NOD, which basically states: request a de novo review concerning recenting rating decision, and my careful consideration that CUE exist bewteen this award and the award of asthma in 1988. Then I go on to explain that COPD should have been awarded at the same time as the asthma. I request one of two remidies.

I requesed the award state asthma with copd, with a 100% rating effective Feb 2001, the year my asthma was increased to 60%. I argue that if I was rated properly in 1988 then COPD would have been awarded at that time, and when I requested an increase rating in 2001, the va would have rated me 100% if done right. Then I request an effective date for the copd to be 1986.

The other request was award of COPD at 60% since my medical records show lower PFT than the one adminstered in Sept 05, and that in awarding copd the whole medical record should be considered and not just the one PFT, I also requested the award date to be 1986 when I retired from the army.

I have sent the nod in, so now I just wait and see. I think I will get the effective date of 1986, but I am unsure if the va will rate the copd higher than 30% or of it they will rate the asthma and copd as one.

Sorry for the long post.

thanks for eveyones input.

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Rick- just my opinion but I would sure keep the CUE claim separate from the NOD on this decision.

The CUE involves a prior unappealed decision-

In that old decision they most surely used the wrong diagnostic codes on the rating- and therefore -since the DCs are part of 38 CFR-this is the Legal error they comitted at that time.

I have posted at hadit erroneous DC code CUE claims.

The NOD should focus on the recent decision, the CUE on the older and unappealed decision.

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Hi Rick,

I'm not sure I understand your question. Are you trying to get a seperate rating for COPD and Asthma? If that is the case it would be pryamiding and only is awarded under one code. I have empyazema and COPD and it is rated together. I also ended up with lung cancer and sleep apnea. It is all rated under one code, supposedly the one with the highest rating. If you had a C&P PFT test that will probably be the one they use. I'm guess that you fall under the one rating go as I do. Check out CFR 38 under the respritory codes and it explaines the way it works.

Good luck


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Guest rickb54


No I am not trying to get seperate ratings.That is part of the problem right now. I am rated for asthma 60% and COPD 30%..... first that makes no sense since both ratings are based primarily on PFT, so it would seem both would be rated the same; secondly I believe the va has made a mistake and should rate me 100% for the asthma with copd vrs seperate ratings. According to the specials rules the for respertory problems the va should rate me under the more serious disease and increase that rating to the next level....

I also agree that the va uses the PFT that is administered at the c/p exam, however they are supposted to consider the whole record when awarding a claim. Just as the cannot use one PFT to decrease a rating they should not be able to use one PFT to rate a claim, they should as I said consider the whole record to include all PFT's administered over the years.....

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Guest rickb54


I understand what u mean, but I have already submitted the nod as I have outlined. I firmly believe that I can call CUE concerning either rating, because they have had four tries to get this whole thing right, ( two denials alone just on the asthma before the va called cue on itself in 1988, and then awarding asthma) and now one rating on the COPD seperate and apart from the asthma.

I am presently rated 90% with tdiu, my tdiu comes from a back injury, not the asthma so I am not putting anything in jepardy.

However if I do get awarded 100% under asthma with copd, I stand to gain some addition funds because I am also rated 60% for the back injury.

My rating for asthma is also 20 years old, with a recent increase in rating in 2001. So if anything they could play games a drop it back to 30%, but I am not really concerned about that.

Presently my awards add up to 200

combined at 93.33%

Ironically since I received tdiu in 1999, I have won three seperate claims with awards of 10% each, an increase in the asthma rating up 30%, and now the 30% for copd, None of these recent awards helped my rating at all! I was 90% before and I am still 90%. I think the va combines ratings the way that it does so that it makes it almost impossible to get 100% schedular.....

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