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    • The 5, 10, 20 year rules...



      Five Year Rule) If you have had the same rating for five or more years, the VA cannot reduce your rating unless your condition has improved on a sustained basis. All the medical evidence, not just the reexamination report, must support the conclusion that your improvement is more than temporary.



      Ten Year Rule) The 10 year rule is after 10 years, the service connection is protected from being dropped.



      Twenty Year Rule) If your disability has been continuously rated at or above a certain rating level for 20 or more years, the VA cannot reduce your rating unless it finds the rating was based on fraud. This is a very high standard and it's unlikely the rating would get reduced.



      If you are 100% for 20 years (Either 100% schedular or 100% TDIU - Total Disability based on Individual Unemployability or IU), you are automatically Permanent & Total (P&T). And, that after 20 years the total disability (100% or IU) is protected from reduction for the remainder of the person's life. "M-21-1-IX.ii.2.1.j. When a P&T Disability Exists"



      At 55, P&T (Permanent & Total) or a few other reasons the VBA will not initiate a review. Here is the graphic below for that. However if the Veteran files a new compensation claim or files for an increase, then it is YOU that initiated to possible review.



      NOTE: Until a percentage is in place for 10 years, the service connection can be removed. After that, the service connection is protected.



      ------



      Example for 2020 using the same disability rating



      1998 - Initially Service Connected @ 10%



      RESULT: Service Connection Protected in 2008



      RESULT: 10% Protected from reduction in 2018 (20 years)



      2020 - Service Connection Increased @ 30%



      RESULT: 30% is Protected from reduction in 2040 (20 years)
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    • Wonderful news way to hang in. I hope this gives you some well deserved peace. 
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    • https://community.hadit.com/searching-for-va-claims-information-on-hadit.com/

       

      Your question has probably been asked before so the fastest way to find the information you need is to search for it.
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    • How to get your questions answered...


      All VA Claims questions should be posted on our forums. Read the forums without registering, to post you must register it’s free. Register for a free account.

      Tips on posting on the forums.

      Post a clear title like ‘Need help preparing PTSD claim’ or “VA med center won’t schedule my surgery” instead of ‘I have a question’.


      Knowledgable people who don’t have time to read all posts may skip yours if your need isn’t clear in the title. I don’t read all posts every login and will gravitate towards those I have more info on.


      Use paragraphs instead of one huge, rambling introduction or story. Again – You want to make it easy for others to help. If your question is buried in a monster paragraph there are fewer who will investigate to dig it out.


      Leading to:

      Post clear questions and then give background info on them.

      Examples:

      A. I was previously denied for apnea – Should I refile a claim?


      I was diagnosed with apnea in service and received a CPAP machine but claim was denied in 2008. Should I refile?



      B. I may have PTSD- how can I be sure?

      I was involved in traumatic incident on base in 1974 and have had nightmares ever since, but I did not go to mental health while enlisted. How can I get help?



      This gives members a starting point to ask clarifying questions like “Can you post the Reasons for Denial from your claim?” etc.

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nanaeris

[[Template core/front/global/prefix is throwing an error. This theme may be out of date. Run the support tool in the AdminCP to restore the default theme.]] Cue Back To 1974

Question

I went through my C-file on my original claim that was denied the RSVR stated evidence of record is insufficient to substantiate the claim of aggravation of veteran's pre-service knee condition. I am taking this to mean the VA did not have my service medical records. When I was finally granted service-connection in 2002, after a 3 year fight with the Los Angeles Regional Office. I am filling a CUE claim on the grounds that the VA did not have my records.

This is the letter I am writing.

Please everyone comment on this. I do not know if this is correct.

22 May 2012

TO: DEPARTMENT OF VETERANS AFFAIRS

VA Regional Office

One Veterans Plaza

701 Clay Avenue

Waco, TX 76799

FROM: Eris w. Riley claim

SUBJECT: Early Effective Date

1. Is it the policy of the Veteran Benefits Administration (VBA) Rating Veteran Service Representative (RVSR), Decision Review Officer (DRO), and Appeals Team Members to give Objective Opinions and not Subjective Opinions when rendering their decisions?

2. 19 September 1975 I filed a claim for Osgood Schlatters Disease and Myocarditis.

3. In the rating decision dated 30 April 1976 the RVSR stated the evidence of record is insufficient to substantiate the claim of aggravation of veteran’s pre-service knee condition. Veteran was hospitalized for myocarditis subsequent to service. Both claims were denied.

4. From the statement, underlined in #3, I contend my complete service medical records were not available when the RVSR made his/her decision. Also, when I was hospitalize for myocartitis it was within the presumptive period. My discharge date was 27 November 1974 and I was hospitalized 2 September 1975 which was well within the presumptive period.

5. In the 16 June 1999 decision the Regional Office in Los Angeles, CA again denied my claim for service-connected disability compensation but their was no mention of my service medical records. The only exception was the medical evidence for PTSD. I was never scheduled a C&P exam for PTSD.

6. The Rating decision dated 6 June 2001by a DRO stated although the C&P examiner stated my current bilateral knee disabilities were directly related to military service it does not outweigh opinions of treating indicated in his service medical records. I have yet to get a answer from the VA which treating physician or military medical facility the DRO was referring to.

7. After filing an appeal the Los Angles Regional Office still refused to give me answers even after I pulled the medical evidence from my C-file and took it to Regional Office in person. I had to contact the VA ombudsman, Congressional Liaison, and finally the VA Inspector General to get a objective opinion about my claim.

8. After a three year fight and getting the people in Washington DC involved I was granted disability.

9. I am claim CUE on the initial decision on the grounds the RSVR did not have my complete service medical records. He/she stated evidence of record was insufficient to make the determination my pre-existing condition was permanent aggravated by military service. I am inclosing two MEB which states otherwise (Knees).

10. On the claim of CUE, Title 38 clearly state Myocarditis is service-connected if it is within the presumptive period. I was discharged on 11 November 1974 I was hospitalized 2 September 1975 which would be in that period.

11. On the issue of the torn meniscus, the DRO clearly error when he/she failed to produce a treating facility or physician when he/she disagreed with the C&P examiner. I was treated for chondromalicia, patella tendonitis, and twisted knee, falling on my knee etc. any one of these condition could have caused a torn meniscus.

12. All I am asking for is a objective opinion which should be based on facts and the law. Please do not send me broad answers, but detail answers. I have a hard time understanding VA correspondence.

13. If there is anything I can do to get this matter resolve please advise.

Eris W. Riley

.

Edited by nanaeris

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However, Nan posted, "The Smr's are not listed as evidence". I think if the VA failed to consider "all evidence of record"..then that is CUE if it was outcome determinative.

No, it's not a CUE - all the VBA needs to do is acquire the SMR's and if appropriate

apply 3.156c towards adjudication of the effective date.

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If other evidence was excluded that was in the record at the time then you may have a CUE. SMR's are a special case and a good case.

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yes other evidence was in my SMR, patella tendonitis, chondromalacia, removing fluid from knee, twisting knee. I am rated now at 30% each knee for osgood schlatters disease, chondromalacia, and osteoarthritis.

I did not know at the time that a torn meniscus repair got a seperate rating, I guess that why the DRO stated it did not happen in the military without a explaination. I injuried that knee, had swelling, had fluid removed and had a profile change. I think this would be enough to make this service connected. I am getting ready to have surgery on my other knee for the same thing. I think this has something to with the osteoarthritis which I am already service-connected for.

On using 3.156c, do I just state I am requesting a earlier effective date, or do I need to go into detail why?

No the VA did not rate me in 1974, just denied me. The Air Force had rated me at 20% on the two MEB boards. There is no mention of any of this or any other thing from my service medical records. The only thing the decision stated was my induction physical was normal and he/she did not have enough information to make a determination whether osgood schlatters disease was aggravated by military service. On the heart condition, there was no mention of the heart murmur discovered in military, the reported joint swelling, dizzinesses, all of this is in my service medical records.

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Others here will help with the 3.156 scenario.

I focused on the myocarditis as the basis for a CUE.

To VARO etc C file #

This is a CUE under auspices of 38 USC, 5109A.

I contend that the ( exact name of the VARO which made the erroneous decision on the myocarditis) VA Regional Office committed a Clear and Unmistakable error in their decision dated ( not sure of this date here ) denying my claim ,filed on September 19, 1974 for myocarditis.

Myocarditis is clearly a Chronic Presumptive disease as found within 38 C.F.R. § 2.1080, 2.1806 (1947). This factor was not considered in the denial for service connection of myocarditis and that is a CUE.

I filed this claim in September 1975 which was clearly within one year of my discharge on November 7, 1974. (Copy of original claim enclosed)

Also I was hospitalized within the presumptive period so obviously my myocarditis was at a level of at least 10% during that time.

As the BVA has stated:

“Myocarditis was and is a chronic

disease by law. The regulations in effect at that time

clearly indicated that if myocarditis was manifest to a

degree of 10 percent within one year of his separation from

service, then it was presumed to have been incurred in

service. See 38 C.F.R. § 2.1080, 2.1806 (1947).”

Source:

http://www.va.gov/ve...es4/9733058.txt

While BVA decisions cannot be used to support medical evidence in similar claims, the BVA statement above however, is a factual statement based on established VA case law which has not been altered or amended since 1947 regarding the Chronic Presumptives.

I request that the VARO properly adjudicate, rate, and award, with the proper EED, service connection for my myocarditis based on their Clear and Unmistakable error in the enclosed decision dated ( put the denial decision date here."

___________________________________________

It is up to you if you consider filing this CUE claim.

When I filed my CUE claims (consolidated 3 into one by VA) actually 8 years ago to this date,June 2004, I received no support from my vet reps or anyone else.

Actually I received a lot of negativity.

Good thing I refuse to accept negativity because I knew my CUES were Prime Facie.

The VA will probably give you a rigamorale, as they did to me for almost 8 years.

And it took a Nehmer VARO to award it this January,otherwise the BVA would have awarded it.I Have no doubt of that.They use the same CUE regs all VAROs use.

I dont think (because of a letter I received from the BVA the other day regarding an appeal I had filed on the CUE-which I withdrew yesterday) that the Phila RO award letter caught up with my AOJ Buffalo yet, and I cant wait for BVA to send them back my C file with the CUE award in it and Buffalo can then stick their erroneous denials on my CUEs for almost 8 years up their .......you know what . ha ha

Edited by Berta

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I thought about this claim last night and wanted to make this point here today-

well 2 points-

1. MANY Vet reps ,in my opinion and a personal assessment wen I did volunteer work for a vet org), do not even think of the potential of the Chronic presumptive regs sometimes, when handling a veteran's claim.

2. The SMRs are not even a factor regarding this type of claim.

Even if a vet's SMRs were destroyed in the St Louis Fire or "silent' for any indication of the claimed disabilty- under the chronic presumptive regulations in 3.309 , that doesn't matter.

(These are not the SE Asia resumptives, but those under 38 CFR 3.307 and 3.309.)

These are the Chronic Presumptive diseases under 3.309:

http://www.law.corne...r/text/38/3.309

However 38 CFR 3.307 must kick in first:

http://www.law.corne...r/text/38/3.307

Also long as the disease manifests itself to a degree of at least 10% within the presumptive period (by medical evidence) within one year after discharge (the reg states the exceptions)

the disability or disease can be service connected.If it is on the list.

If the veteran filed the claim within one year of discharge, assuming they found out they had a chronic presumptive disability and filed within that first year, their EED will be the day after their discharge.

The regs have to be carefully considered for these types of claims.VA will consider both medical and lay evidence as to symptomatology within the presumptive period.

Example: vet is diagnosed with schizophrenia 5 months after their discharge. Their MH disability is ratable at least at 10%per the VA Schedule of Ratings.

The SMRS and the Discharge certificate are silent for any symptoms of Psychosis.

Schizophrenia is a psychosis. The veteran's claim under the above regulations should succeed.

Edited by Berta

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      6) I didnt do this for this claim although i should've and kept a diary of when i was using the CPAP, roughly when i ripped it off, data on how long i wore it, frustrations over not being able to wear it, info on my nightmares causing me to rip it off etc.  years of diary entries wouldve been a help. I didnt need it in the end but if you cant afford a IMO things like this can help because theres NO SUCH THING AS TOO MUCH EVIDENCE.  A diary is one of the key things that helped me win my migraines case.  for months prior I kept a diary of my headaches and effects, then transcribed them into ebenefits health diary.  I am not perfect at it but i now write as much as i can as often a i can in this diary about ANY service connected or possibly service connected illness (especially things that could be considered aggravated by a service/possible service connected disability).  That way when you are making a claim or fighting a reduction you can pull out timestamped entries for months/years relating to it and it makes it harder for a rater to think you pulled this out your but last month to make a claim. 
       
      A big thanks to everyone on HADIT.  i did alot of research here through the years to help make my claims better and it worked
      Another big thanks to Dr. Anaise and Dr. Tripi for their outstanding IMO's that helped me win this. 
    • By ThomasGray
      First off, hello and thank you in advance for any help that can be provided. Also, I apologize if something is not clear, trying my best to keep things concise.
      On Friday, May 15, I received letter from the VA, dated May 11, proposing a rating reduction from 100% to 70% for PTSD. The only evidence for the change listed is Rating Decision - Narrative(17SEP18) and DBQ PSYCH PTSD Review(06MAY20), whereas on my initial decision letter there was an abundance of evidence used. The major takeaway appears that my medical records(both prior to and after the initial rating, also from VA facilities) were not considered in this proposal. Is this normal?  
      I have yet to obtain the most recent C&P as I just received the proposal letter, but intend to attempt on Monday, May 18. Looking at the proposal letter though it seems that examiner didn't check a few specific boxes that were checked on my previous C&P. Other than that the differences appear to be minor. The two lists are as follows: Original C&P Gross impairment in communication Suspiciousness Depressed mood Suicidal ideation Near-continuous depression affecting the ability to function independently, appropriately, and effectively Disturbances of motivation and mood Chronic sleep impairment Near-continuous panic affecting the ability to function independently, appropriately, and effectively Difficulty in understanding complex commands Total occupational and social impairment Panic attacks (weekly) Difficulty in adapting to stressful circumstances Neglect of personal appearance and hygiene Difficulty in adapting to work Inability to establish and maintain effective relationships Flattened effect Panic attacks (less than weekly) Intermittent inability to perform maintenance of minimal personal hygiene Difficulty in adapting to a worklike setting Anxiety Difficulty in establishing and maintaining effective work and social relationships Intermittent inability to perform activities of daily living Gross impairment in thought processes New C&P Forgetting names Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgement, thinking, and mood Depressed mood Suicidal Ideation Near-continuous depression affecting the ability to function independently, appropriately, and effectively Disturbances of motivation and mood Mild memory loss Forgetting recent events Chronic sleep impairment Near-continuous panic affecting the ability to function independently, appropriately, and effectively Difficulty in understanding complex commands Panic attacks more than once a week Difficulty in adapting to stressful circumstances Neglect of personal appearance and hygiene Difficulty in adapting to work Inability to establish and maintain effective relationships Impairment of short- and long-term memory Flattened effect Difficulty in adapting to a worklike setting Anxiety Difficulty in establishing and maintaining effective work and social relationships Forgetting directions I bolded the important items not that were not checked on the new c&p which led to the reduction proposal. It seems strange to me that new symptoms were added, however the very specific ones that would've caused the rating to remain the same all disappeared in just 1.5 years even though there is no noted improvement in my actual medical records.  
      What exactly is my next step? I have written a few statements of disagreement contesting the proposed reduction and pulled my VA medical records and will be getting a copy of the new C&P shortly. I have no idea were send the items as it is unclear in the packet. It says I have 30 days for one option and 60 days for the other. I don't think I need a notice of disagreement or start the appeal process as the final decision hasn't been made(this is a poorly worded question)?  
      Can I also request that they consider TDIU if the rating reduction is finalized or will I have to start a new claim for that? Should i send TDIU forms with my statements of disagreement and records?  
      I have been avoiding poking the bear and not filing claims for other conditions, some of which are caused by the various medications they have me taking, should I start filing claims for those as well?  
      And finally, if I do have to file for TDIU separately, should I start the claim now so that the date is saved? Do I submit the claim before or after I receive the final decision on the proposal? Sorry for the long post. I'm lost as to what to do next. It took me over 5 years of being denied before they would actually service connect anything and now this. Thanks again for any help, it is appreciated.
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    • The 5, 10, 20 year rules...



      Five Year Rule) If you have had the same rating for five or more years, the VA cannot reduce your rating unless your condition has improved on a sustained basis. All the medical evidence, not just the reexamination report, must support the conclusion that your improvement is more than temporary.



      Ten Year Rule) The 10 year rule is after 10 years, the service connection is protected from being dropped.



      Twenty Year Rule) If your disability has been continuously rated at or above a certain rating level for 20 or more years, the VA cannot reduce your rating unless it finds the rating was based on fraud. This is a very high standard and it's unlikely the rating would get reduced.



      If you are 100% for 20 years (Either 100% schedular or 100% TDIU - Total Disability based on Individual Unemployability or IU), you are automatically Permanent & Total (P&T). And, that after 20 years the total disability (100% or IU) is protected from reduction for the remainder of the person's life. "M-21-1-IX.ii.2.1.j. When a P&T Disability Exists"



      At 55, P&T (Permanent & Total) or a few other reasons the VBA will not initiate a review. Here is the graphic below for that. However if the Veteran files a new compensation claim or files for an increase, then it is YOU that initiated to possible review.



      NOTE: Until a percentage is in place for 10 years, the service connection can be removed. After that, the service connection is protected.



      ------



      Example for 2020 using the same disability rating



      1998 - Initially Service Connected @ 10%



      RESULT: Service Connection Protected in 2008



      RESULT: 10% Protected from reduction in 2018 (20 years)



      2020 - Service Connection Increased @ 30%



      RESULT: 30% is Protected from reduction in 2040 (20 years)
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    • Wonderful news way to hang in. I hope this gives you some well deserved peace. 
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    • https://community.hadit.com/searching-for-va-claims-information-on-hadit.com/

       

      Your question has probably been asked before so the fastest way to find the information you need is to search for it.
      • 3 replies
    • How to get your questions answered...


      All VA Claims questions should be posted on our forums. Read the forums without registering, to post you must register it’s free. Register for a free account.

      Tips on posting on the forums.

      Post a clear title like ‘Need help preparing PTSD claim’ or “VA med center won’t schedule my surgery” instead of ‘I have a question’.


      Knowledgable people who don’t have time to read all posts may skip yours if your need isn’t clear in the title. I don’t read all posts every login and will gravitate towards those I have more info on.


      Use paragraphs instead of one huge, rambling introduction or story. Again – You want to make it easy for others to help. If your question is buried in a monster paragraph there are fewer who will investigate to dig it out.


      Leading to:

      Post clear questions and then give background info on them.

      Examples:

      A. I was previously denied for apnea – Should I refile a claim?


      I was diagnosed with apnea in service and received a CPAP machine but claim was denied in 2008. Should I refile?



      B. I may have PTSD- how can I be sure?

      I was involved in traumatic incident on base in 1974 and have had nightmares ever since, but I did not go to mental health while enlisted. How can I get help?



      This gives members a starting point to ask clarifying questions like “Can you post the Reasons for Denial from your claim?” etc.

      Note:

      Your firsts posts on the board may be delayed before they show up, as they are reviewed, this process does not take long and the review requirement will be removed usually by the 6th post, though we reserve the right to keep anyone on moderator preview.

      This process allows us to remove spam and other junk posts before they hit the board. We want to keep the focus on VA Claims and this helps us do that.
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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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