ptsd Cue Back To 1974

[nanaeris]

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 June 13, 2012 by nanaeris

[Berta]

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 June 6, 2012 by Berta

[Berta]

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 June 7, 2012 by Berta

[john999]

I found out I had a chronic presumptive disease because I was in a VA hospital within one year of discharge. No one told me anything. I think I gave my POA to the VFW and they ran with the ball. I don't remember ever doing this but the VFW must have visited the ward. It took another year to actually get a rating for the chronic presumptive disease with a ED back to the day after discharge. It was just an accident. I had zero information and just fell into this category.

I really think every vet should be required to go for a complete exam during the first year after discharge. There is almost no other way under 3.309.

[Berta]

John, I sure agree with you on that and I believe this is why claims under 3.309 are often hard to even find at the BVA.

I even had to explain to my former vet rep what 3.309 was all about when he asked me to help with a PD claim.

He was actually helping the vet appeal a personality disorder claim which went no where.

I interviewed the vet myself because the rep hoped I could change it into a PTSD claim.

Believe me , no PTSD there. But 3.309 potential. After I complained to the OGC about this vet org I never had any further access to the results of that vet's claim.

These situations might help more here on this topic:

Bronchiectasis.

http://www.va.gov/ve...les/0402427.txt

Vet not properly informed of 3.309 potential in VCAA letter. I stated here at hadit long ago tat soetimes not even the VA itselfcan recognize the potential of 3.309 as this remand shows.

Bronchiectasis is a chronic presumptive under 3.309.

In this case the BVA explains the VA rationale clearly as to the “presumptive” period in the 3.309 regs.

http://www.va.gov/ve...es2/0811785.txt

in Part:

. “The law further provides that

no presumptions may be invoked on the basis of advancement of

the disease when first definitely diagnosed for the purpose

of showing its existence to a degree of 10 percent within the

applicable period. This will not be interpreted as requiring

that the disease be diagnosed in the presumptive period, but

only that there be then shown by acceptable medical or lay

evidence characteristic manifestations of the disease to the

required degree, followed without unreasonable time lapse by

definite diagnosis. Symptomatology shown in the prescribed

period may have no particular significance when first

observed, but in the light of subsequent developments it may

gain considerable significance. Cases in which a chronic

condition is shown to exist within a short time following the

applicable presumptive period, but without evidence of

manifestations within the period, should be developed to

determine whether there was symptomatology which in

retrospect may be identified and evaluated as manifestation

of the chronic disease to the required 10-percent degree. 38

C.F.R. § 3.307©. “

Based on the September 2007 medical opinion, after resolving

the benefit of the doubt in favor of the veteran under the

provisions of 38 U.S.C.A. § 5107(b), the Board finds that the

veteran's current schizophrenia disability is etiologically

related to his active duty service period and that

entitlement to service connection for schizophrenia is

warranted.

ORDER

Service connection for a schizophrenia disability is granted.

A veteran and certainly their vet rep cannot overlook any potential theory of service connection entitlement to include any 3.309 potential.

Edited June 7, 2012 by Berta

[free_spirit_etc]

There is an interesting BVA case of 38 C.F.R. § 3.156 © HERE

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp11/Files2/1119704.txt

They went back to 1975 for hearing loss.

[broncovet]

Carlie posted:

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.

end of Carlie post.

,Well, certainly the VA CAN apply 3.156C, but when they fail to do this, is that not CUE for failing to follow regulations? Providing, of course, the error was "outcome determinative"

That is, if the VA fails to apply a particular regulation that would be favorable to the Veteran, is that not Cue by definition?

Or, are you trying to say the VA try's to get away with the crapola that "we are applying 3.156c post decision, but just have not gotten around to following the regulations for 20 years and we are working on that.