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Have You Been Denied Because It Was Too Long Since Service?

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broncovet

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Has your claim been denied and the reasons and bases states "too long since military service"? According to a well known attorney representing Veterans, this is an "invalid reason".

In her knoll, Ms Eagle points out that this is NOT a valid reason.

http://knol.google.com/k/katrina-eagle#

In it she states:

For veterans of World War II (yes, they too have their VA claims denied), Korea and Vietnam, the VA loves to deny the claim on grounds that too much time has passed between the veteran's period of service and their claim for benefits, that it's impossible for their to be a relationship between the two.

For many Gulf War veterans, their medical conditions get stuck in the quagmire of "Gulf War Syndrome"; of course, this may soon improve in light of new recognition by the medical community that GWS is a valid medical condition, but only time will tell.

For veterans of OEF/OIF, the VA refuses to believe these young men and women may actually be too disabled to be employable, so many of them face VA proposals to reduce their monthly VA benefits.

And of course, for veterans of any era with what I call a "squishy" medical condition (that is, one that is not observable by the human eye or objective medical test such as an x-ray, a PFT, etc.) -- PTSD is a perfect example -- their claims are routinely denied for any myriad reasons.

All of these are invalid reasons for the VA to deny the veteran's claim. I just hope the veteran doesn't accept the VA's rejection of their claim and give up.

end of Katrina Eagle quote.

To Katrina's opinion, I would add that the VA is required to follow its own regulations and to rate on the applicable criteria, and not to make it up as they go. If a Veteran has been denied for an invalid reason, I would humbly recommend they file a NOD disputing said denial.

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Good info there, thanks. I was told the same thing by a NOVA attorney, and she also told me that in the case of mental disorders, long periods without professional treatment are no longer an excuse to deny.

I was denied SC for depression. There was a diagnosis (and documented causes) while active duty, but the C&P Psych said that even though there is evidence that it is related to service, so much time had passed that she could not "parcel out" how much of my current problems are service connected... so she copped out with the "mere speculation" crap. (She also diagnosed me with Chronic Pain d/o; in the mid- 1970's there was no such mental condition discovered yet. However, I think there is a ton of objective evidence of a diagnosis in my SMRs).

The attorney tells me that the U.S. Surgeon General, in a fairly recent report, opined that a long period of no professional treatment does not mean that a mental condition did not exist continuously. The logic, with which I certainly can agree, is that because of the stigma attached to mental illnesses, people who have needed treatment have avoided it.

I self-medicated with alcohol to treat mine. In my civilian career (and in the Air Force too) I can remember what happened to people who made the mistake of being identified as having mental health issues and/or treatment; they were whispered about, shunned, and soon culled from the herd by way of cutbacks, layoffs, reassignments, or just driven away.

A drunk, on the other hand, was and still is acceptable. And any mental issues could then be attributed to being drunk or being hung over.

After sobering up, I used Alcoholics Anonymous and my relationship with God to try to treat myself. Only a few years ago did I start to seek outside help.

It is encouraging to hear the new legal views on this issue. I was debating until recently whether to bother with an NOD, but now I truly think I will prevail (with the help of the NOVA attorney), hopefully at the DRO De Novo Review level.

Edited by acesup
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The VA is under no obligation to grant Service Connection to a claim that has not been "Continuous". That said, you need to focus on establishing that your condition was indeed continueous.

First question: Have you submitted a statement in support of claim relaying to the VA what you relayed to us here? Namely that you where self medicating, and self treating?

Second question: Is there someone that you have known closely over the period of time from separation to present that can verify your history? This person need not be a doctor or other expert. But if they are not an expert then they should only state facts that the lay person can observe. For example.... They should not say, "I believe the veteran was depressed". Rather they should state WHY they believed that the veteran was depressed. Example: Veteran would go through periods of time where he would sleep for X hours of the day......

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VA is most certainly under an obligation to grant service connection even if continuity of symptomology is not present.

A requirement of continuous symptomology is the exception not the rule. CFR 38, 3.303 (b) " Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim."(excerpt from the regulation).

If a competant treating physician wrote Chronic Depression as a diagnosis in his SMR and that diagnosis has not been rebutted by medical evidence, No requirement of continuity of symptomology is required.

Best regards,

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  • HadIt.com Elder

VA is most certainly under an obligation to grant service connection even if continuity of symptomology is not present.

A requirement of continuous symptomology is the exception not the rule. CFR 38, 3.303 (b) " Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim."(excerpt from the regulation).

If a competant treating physician wrote Chronic Depression as a diagnosis in his SMR and that diagnosis has not been rebutted by medical evidence, No requirement of continuity of symptomology is required.

Best regards,

Good Call and quite right! 38 CFR 3.303

USAF 1980-1986, 70% SC PTSD, 100% TDIU (P&T)

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I agree with Wings and 71M10. There is a difference between "continuity of SYMPTOMS and continuity of TREATMENT". It is possible, or even likely, that someone suffer symptoms and seek alternate, or even no treatment. There may be many reasons for this, such as it may not be all that good to stay on "pills" for an extended period of time...one pill can adversely interact with another pill prescribed for an independent illness.

The regulations say there needs to be continuity of symptoms not continuity of treatment. Just because a Veteran may not achieve a great result from his prescribed treatment, does not necessarily mean he no longer suffers symptoms. Treatments can change...the doc often tweaks or changes pills or other treatments for a variety of reasons OTHER than an improvement in the condition. The VA automatically thinks if you are not going to the doc, its because your symptoms are "over".

The Veteran has a right to decide what course of treatment he gets, including the right to not be treated at all.

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I face this with one of my meds. As an immunosuppressive, if I or someone in the house picks up an infection, flu or gets sick otherwise, I have to stop taking it until the risk passes. I make sure to tell my provider every time this happens.

Limbo is status quo for the VARO.

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