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Asthma And Effective Date

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Back in 2002 i went to Walter Reed and was medical boarded out and was told "because i had asthma as a child, i was ineligible"....my question is... i recently in, 2010, got 30% awarded for SC asthma. and they only gave me backpay when i filed the claim, but should it go back when i went in front of the medical board in Walter Reed? thanks for all the info!

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  • HadIt.com Elder

Any time you get this type of reversal there is a potential that the effective date could be earlier. However, it is not automatic. You will need to investigate whether or not there was a Clear and Unmistakable (CUE) error on the original denial when you were discharged. I would suggest that you talk to a Service Officer and if he thinks there was a CUE let him file it. However, if the service officer declines to get involved you should not give up without getting an opinion from a lawyer. We could try to help here on the board. However, you would need to post all the evidence and decisions.

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Did you file a claim for service connection for asthma when you were boarded out of the military?

When did you file your first claim for asthma?

Back in 2002 i went to Walter Reed and was medical boarded out and was told "because i had asthma as a child, i was ineligible"....my question is... i recently in, 2010, got 30% awarded for SC asthma. and they only gave me backpay when i filed the claim, but should it go back when i went in front of the medical board in Walter Reed? thanks for all the info!

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Hoppy, I will call her in the morning and ask what she thinks and read some more into it on this GREAT website.She is very helpful but also very busy.

Interested, No I went to the va to file a claim when i first got out and the VA rep told me i didnt have a chance at winning, so i never persued it until july 1, 2010.And was granted SC asthma. Come to find out the guy that told me i didnt have a chance was about to retire and didnt really want to work(I have a family member that works in the office).

Thanks Mark

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  • HadIt.com Elder

We have another veteran who posts on hadit who was told by a service officer that they were not eligible for any VA benefits due to a bar to benefits that was the result of a discharge for misconduct. Later the veteran learned that they were eligible for benefits due to the fact they were discharged during their second enlistment and their first period of honorable service made them eligible for benefits based on the first enlistment. The VA isclaiming the veteran is only eligible for any VA benefit from the time the first VA claim is filed. The veteran has had a battle trying to get an earlier effective date due to a CUE.

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I am not trying to tell you or convince you to do anything ... but I believe it will be difficult if not impossible to overcome dateof receipt of claim from 38 CFR 3.400 (a)(b)(2) http://www.benefits....ART3/S3_400.DOC .

Unless there is some kind of record within your claims file noting your attempt from that date (38 CFR 3.400(a), I can't see where you have a claim for an earlier effective date. I have seen some Board of Veterans Appeals (BVA) Decisions which in many ways are similar to your situation and the BVA would not award an earlier effective date.

Unlike what most posters here fervently believe (or fervently need to believe), not everything the VA does is a Clear and Unmistakable Error (CUE). I'm not saying that whatever is done is always equitable or fair by your lights, but that it may be legal.

I don't see your local VA Regional Office (either the Rating Veterans Service Representative or Decision Review Officer) agreeing to the earlier effective date. While I personally don't believe that the BVA will support an earlier effective date, I have seen the BVA do some pretty screwy things, and based on some pretty tenuous evidence at that.

It is the veteran's right and choice whether to file any claim or disagree with any decision and you are entitled to request an earlier effective date. However, since there was no decision based on your interview in 2002, you can't have a CUE. Again however, for lack of a better term, I don't know what to call this so you might as well claim a CUE if you proceed.

(snip)

Interested, No I went to the va to file a claim when i first got out and the VA rep told me i didnt have a chance at winning, so i never persued it until july 1, 2010.And was granted SC asthma. Come to find out the guy that told me i didnt have a chance was about to retire and didnt really want to work(I have a family member that works in the office).

Thanks Mark

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Unlike what most posters here fervently believe (or fervently need to believe), not everything the VA does is a Clear and Unmistakable Error (CUE). I'm not saying that whatever is done is always equitable or fair by your lights, but that it may be legal.

The above is a quite liberal and blanket statement and I certainly disagree with it.

Most regulars here are very aware that not all or not even most, of the poor decision

that are adjudicated, would actually meet the three prong test for a claim of CUE.

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