tdiu Tdiu Retro Pay How Far Back?

[walt]

Good Morning Everyone,

I was denied claim for four conditions in 2001.that was opened in 2000. They were copd,high blood pressure, premature ventricular conractions, and anxiety.The reason for denial was given that the conditions neither ocurred in or was a cause of being in service.They stated that,"we requested records from St louis.St louis notified us they were sent but we have not received them. If these records are subsequently received claim will be reconsidered with date of claim protection. " Also there were two periods of service that they did not have my dd 214's. They have all this now. In the denial they said in the facts:" the vetran has submitted evidence he was diagnosed wtih" (the four conditions).They also used the phrase,"treatment records show" These were smr's I sent.Yet they denied saying " condition neither occurred in or was caused by service" Only thing I can think of is because they did not have two of the 214's.

I have tried to be as clear as I can. The above is backgound to help with what I would like to know.They auto matically opened my claim for the "Neimer review".Why I do not know except because of ischemic heart disease and prostate cancer.Still it should have been clear I was not in Viet Nam but Korea and missed presumptive date for prostate cancer due to AO in Korea by Five Months.

My present claim is in review and decision phase for second time.This time after C and P exam.It went back to RO 15 Feb. Report by VA Dr.As to anxiety claim......Diagnosis..Panic disorder.Symptoms that apply-depressedmood,anxiety,suspiciousness,panic attacks that occur weekly or less often,panic attacks more than once a week,mild memory loss,such as forgetting names,directions,or recent events.Flattened affect,circumstantial,circumlocutory,or steerotyped speech..... Axis lV -psychosocial and environmental problems socially isolated,lives alone.very litle social contact. .axis V Gaf 60

IMO by civilian Psychiarist.....Panic disorder with agoraphobia.secondary generalized anxiety disorder.AxisIII copd,cad,ddd,history of prostate cancer,osteoarthritis.Axis IV..Moderate Axis V 50 with highest being 60. This is a four page report ending with..Specifically then in regards to the patient's illness and his military service I can clearly say that this illness began during his military service however I can not say with certainty wherther his military service caused this illness.

IMO from PHY Assistant at local clinic...Two pages ending with....Veteran has been a patient at our clinic since 2010.After reviewing Veterans medical recorde it is my opinion that Veteran is totally and permanently disabled by chronic anxiety disorder,aggravated greatly by low back pain.. He cannot hold gainful employment because of these service relaed issues.

It is my opinion that Veterans chronic Anxietydisorder is more likely than not due to his active service duty.It is also my opinion that his low back pain is at least as likely as not related to his active service duty.

I have a letter from a former soldier I served with in Korea. He was the company clerk and tell about me being sent to the DMZ twice TDY.Just this in case by some chance they service connect the prostate cancer.As In said before I missed he Presumptive date by five months, I left there in Nov. 67

I have another letter from a fellow soldier I worked with on a dayly basis telling about the anxiety and low back pain.

I have several more ,about six or seven" Buddy" letters.telling about the anxiety and low back pain.

The c and p for arthritis and low back pain was done by a fee basis VA dr.and did me no good. He is same one that they asked an opinion for other conditions and I do not expect him to help any more there. Maybe wrong. I will know tommorrow when I go to release of info.

Long post I know.But wanted to give back ground.I reopened this claim 2 Feb.2010 and in June I filed for TDIU. I am hopeful to get at least a high enough rating for the TDIU at least,depending on what the opions are from this fee basis Dr. is on the other conditions and if I am able to get another IMO.IF I GET A HIGH ENOUGH RATING for TDIU,will the retro be to June when I asked for TDIU or will it go back to original denied claim of 2000?

Thank you all for your help,......also forgot to add I am receiving 100% PENSION since 2004.

Anymore advice and help I will appreciate.

[walt]

Good Morning again.Could someone explain his?On my ebenefits it shows that my clain has been sent back to gathering of evidence phase saying....Requested herbicide exposure documents. under "what do we still need from others?" it says "this is a list of all items that have been requested from 3rd parties.Person at 800 number said this was all left that they needed.Who could the 3rd party be?Thank you.

[walt]

Good Morning everyone.

I hope I am posting in right place.Berta I am sorry for not answering you promptly but have not felt like being on computer.Thank you for your answers.We talked about the spina bifida in children born with it and their dad being exposed to chemicals prior to 1 april 68 in korea and him not being covered but children were..tried to post link here but it was broken. Think yhe appeals cases I added at end of post explains what I was trying to show about the Spina Bifida and Vet Chemical exposure prior to presumptive date in Korea.

Yes the copd and high blood pressure opinions were addendums to a prior c and p...... As to the back pain I have had i since early 70's and now at point of three 10mg hydrocodone a day. I know of no specific instance of injury except the broken pelvis from auto accident.SMR's show chronic complaints since early 70's and VA and private records until present.But no specific diagnosis. ,in 2003 xray report says ...this is va,not in service...clinical history:chronic back pains-old pelvic fractures by history.also pain when adducts or adducts hip. findings:Bones are osteopenic.there is mild anterior wedging of vertebral body L1.There is also mild spondylosis of t12-L1 with small anerior marginal spurs.there aremild osteoarthritic changes of the faucet joints of l5-s1.abdominal aorta and iliac arteries are calcified. Impression:ostenpenia,mild spondolosis of t12-L1.,mild degenerative faucet joint of L5-s1,arteriosclerotic calcifications of the abdominal aorta and iliac arteries. One pcp said it may be because of the prostate cancer.The c and p Dr, said age related,

Anyway ,because of my age and time it takes for a claim to be processed I have decided to go ahead and let them make a decision.I have three c and p connecting to service...copd,High blood pressure, and panic dis order.I just am not sure if they are enough to either grant the original claim or for TDIU. At present the ro has asked dod at St. Louis "Request herbicide exposure documents". It is due by 7 April 800 number said they would go ahead with making a decision. after then whether they received a reply or not. I know I need some Good IMO's but that is out of question as far as being able to get them. So what do any of you think? Do any o you have an idea as what o expect rom the three conditions.? Thank you kindly. Walt

Below are 3 Board of Veterans Appeals cases wherein the government admits that between 1967 and 1969 Herbicides (agent orange) was used in Korea (with active use between 1968 and 1969). And some American forces were possibly exposed.

However, there is no presumption of exposure in Korea as there is in Vietnam, nor are the conditions presumed to be caused by Agent Orange as in Vietnam.

1. If you have one of the conditions which "Agent Orange" is presumed to cause?

2. And if you have a doctor's statement that you have it, and that your exposure to herbicides while in Korea cause it, or most likely caused it?

3. And if you can show you were in Korea during the time the herbicides where being used, and that you were in a location where they were being used.

Then benefits based on exposure to Agent Orange while in Korea is possible.

Also Argue the "Benefit of reasonable Doubt" must be given to veterans when all evidence is equal (38 CFR 3.102, see below).

The BVA cases below show service people who had buddy statements that they were along the DMZ during the time agent orange was used; they had photos of themselves standing on barren land which herbicide had been used on. And other such evidence.

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BVA case:

Citation Nr: 9906724

Decision Date: 03/12/99 Archive Date: 03/18/99

DOCKET NO. 98-17 647

"An official letter from the Department of the Army to Senator John Glenn, dated in May 1996, reflects that official records show use of 21,000 gallons of Agent Orange in Korea in 1968 and 1969 in the area of the DMZ. This letter also states that Camp Casey was located in the area of the DMZ.

A letter from the Director, United States Armed Services Center for Research of Unit Records (USASCRUR), (formerly the United States Army and Joint Services Environmental Support Group, ESG), to VA dated in February 1998 also confirms use of Agent Orange in Korea in 1968 and 1969, and confirms that Camp Casey was located near the DMZ.

The evidence of record also includes a copy of an unidentified report, which appears to have been prepared by a

service department within the Department of Defense, titled, "Vegetation Control Program CY 1968," which reflects that a program for control of vegetation near the DMZ by use of herbicide defoliants was approved in 1967. Shipment to Korea of materials necessary to accomplish the program goals began in early 1968. The report reflects that herbicides were to be applied from the Civilian Control Line in South Korea to the southern border of the DMZ, with priority applications in the vicinity of roads and tactically significant areas. "

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BVA case:

Citation Nr: 0601295

Decision Date: 01/17/06 Archive Date: 01/31/06

DOCKET NO. 04-41 328

"The Board observes that the Department of Defense has confirmed that Agent Orange was used in Korea from April 1968 through July 1969 along the DMZ and that the 2nd Infantry Division had elements in affected areas at the time Agent Orange was being used, including the use of field artillery, signal and engineer troops who were supplied as support personnel to various elements of those Infantry Divisions during the time of the confirmed use of Agent Orange.

However, the Board is unable to determine whether the veteran's unit, in fact, performed duties in the DMZ and

observes that the U.S. Center for Unit Research and Records (CURR) has not been contacted to research whether the veteran's unit was in fact near the DMZ zone. As such, given the fact that the veteran served in the 2nd Infantry between April 1968 and May 1969 and his principal duty at that time was that of a combat construction specialist, the Board finds that such an attempt should be made in this regard. "

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BVA case:

Citation Nr: 0534064

Decision Date: 12/19/05 Archive Date: 12/30/05

DOCKET NO. 02-15 232A

"In February 2002, VA received a response from the U.S. Armed Services Center for Unit Records Research, indicating that herbicides were used in Korea between 1967 and 1969, and that Agent Orange was used from April 1968 to August 1968. Military records specifically note that chemical herbicides were used along the southern boundary of the DMZ during the 1967 to 1969 period by Republic of Korea Armed Forces. No United States personnel are known to have been actually involved in their application."

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38 CFR 3.102 Reasonable doubt.

"It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one, which exists because of an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships. (Authority: 38 U.S.C. 501(a))"

VETERANS RESOURCES NETWORK

Edited March 26, 2012 by walt