Doug Kessler New Member - Ap Appeal Help

[Douglas Kessler]

Not sure if anyone here can answer this qiestion but here it is. I served in the USMC (Vietnam) 1966-1968. In 83 I was diagnosed with Non Hodgkin's Lymphoma. Underwent the Agent Orange registry examination in 1983., While still receiving Chemotherapy. In 1990 I received an application for benifits from the VA. Long story short I was denied compensation in a decision 1995 . I did not appeal. In 2010 I reapplied. Claim was re-opened with new evidence. Oncologist wrote a letter stating that in fact I was dx. with stage 4 NHL...He treated me from 1983 to 1996. He specifically gave the date of Discharge. I was service connected at 0% (cancer in remission). I asked for an EED and after appealing, I receive an EED date of 1990, when I officially applied. However the percentage was still 0%. Today I filed a NOD asking for an increase in the percentage. I was able to obtain a IMO from the oncologist that treated me in 1983 that reinterated everything he originally said and then adding that "It is more likely than not that Mr,_________ will continue to suffer from residual from this NHL. He gave examples of dx, I recently claimed. Is this the right Avenue to take? Is there anything else to do? I feel as though I am owed compensation from 1990-1996 @ 100%, because I was still under the doctor's care. Not receiving Chemo the entire time but the "watch & wait protocol, P.O. (BY mouth) meds, not to mention the residual of PN...service connected later (2009). Any advice is appreciated.

[carlie]

Doug,

I moved your question to the forum it goes under.

Please post new topics and questions under the

forum it goes with and as a new topic.

Thanks.

[Philip Rogers]

Can you post why they originally denied you "word for word?" I would like to see their decision before posting anything as to how to handle this. Thanks and welcome!

pr

[Douglas Kessler]

Can you post why they originally denied you "word for word?" I would like to see their decision before posting anything as to how to handle this. Thanks and welcome!

I was originally denied in 1990 because and I quote "no medical evidence with a confirm diagnoses". The evidence was there all the time, however it was at the VMC. I now understand that the DVA is a different entity. In 2009, I reopened this claim, and showed medical dx.

[FormerMember]

Regardless of why they denied him, he's eligible for more. Look at 38 CFR 3.816. At any time you file for a disease and it later becomes presumptive, that becomes the date of claim. Whereas here, Doug went in for a Agent Orange registry exam in 1983 shows he was attempting to get some satisfaction from VA. That, technically, could be construed as an informal claim for benefits for AO. I'd darn sure fight for it because it's a ton of backsheesh bucks.

If he has the definitive medical records showing txment and being under the care of a doctor, it has to be compensable. Patients do not visit their doctors for social chatter. Fight it with all your heart. I wouldn't rely on a VSO for this because it is cutting edge jurisprudence that is light years past their capabilities. You are going to end up fighting this to the BVA . It is the last opportunity to get all the evidence in before the inevitable appeal to the CAVC. You can get a half-hearted raise in ratings percentage but will never get that 100% from your RO. They just aren't prepared to grant that much that far back without a donnybrook.

As a side note, the reason they (VA) sent you an application for benefits to file for the NHL was because they had identified you as a candidate for this via your Agent Orange registry. This is an open admonition that you were owed compensation. VA is not in the habit of seeking anyone out and asking them if they want to file. Good luck from a fellow Vietnam Vet, sir.

[jbasser]

Youare Dead on as usual ASKNOD.

I would get some legal help to go into this from an Attorney. They can help and do not get free rent from the Enemy.

J

[FormerMember]

Jez, Doug. This just gets better by the moment. The medical records were at the VAMC? The Court of Appeals for Veterans Claims decided a case way back in 1992 called Bell v. Derwinski. It stands for what is called "constructive possession". VA had your records in their possession and never associated them with your claims file. Bell was decided July 21, 1992 so any claims that were decided before then are not applicable. However, you mention they dilly-dallied around with yours until 1995 for a denial. Now you can see why they gave you the 1990 date without too much fuss. Since this is the same claim stream now from 1990, you are entitled to what is called a retroactive Fenderson or staged rating beginning with a rating commensurate with your illness/disease severity. I think the 1983 date has merit. This is part of the original Nehmer #1 claims era and far more lucrative.Depending on where you are standing legally, you may be in high cotton.