How To Find Regulations From 1970S?

[bigred1]

I am looking for the regulations on how the VA was supposed to handle a claim for benefits in the 1970s. I have a family member who I am helping with his appeal. He submitted a claim after he was hospitalized in the mid 1970s after an attempted suicide for depression. He was denied based on lack of service connection. The hospitalization was about 5 years after his 2 year tour in Vietnam. The hospital records in the cfile state a sentence from the doctor that he was experiencing depression since his time in Vietnam.

Where can I find regs of how they should have handled his claim back then?

Should they have considered that statement?

He was in the hospital for about 2 months for depression.

Thank you for any advice!

[bigred1]

His hospitalization could be treated as an informal claim for benefits. I wonder if the VA did not commit some kind of CUE when they denied his orginal claim. I think you should hire a lawyer and let him review his entire C-File and medical records. Because their is some kind of chance at a earlier effective date, and TDIU, the lawyer might want to take the case since he gets 20% of any retro money. Phil and AskNod have both said it is a long road. It will be even longer without expert help. I have a CUE going back to my discharge rating and that was 1971. I have a lawyer working on it because it has been very frustrating as you can imagine. The VA broke every rule in the book on my original claim, but what did I know? As far as TDIU if he can't work due to SC condition that is definition of TDIU. Has he applied for SSDI?

John

he actually made a claim while he was in the hosptial. We have the application from the cfile. But they denied it saying it wasn't service connected. I do think they committed CUE, we are appealing, just trying to get all the regs together to formulate the best arguments. I know it is very difficult to prove and they talk in circles in their opinions.

thanks so much & good luck to you!!

[bigred1]

I'm not sure if he has ssdi. He retireed, but he retired under stress. He stated that at his c&p exams, but of course when the write the opinion they ignored all the stuff that he said re: that he retired b/c he was stressed and his condition was getting worse. They wrote the stuff he said to support their decision of denying unemployability.

[FormerMember]

Okay. Vet goes to VAMC after suicide attempt. Stays for several months and files. Does he have a CIB, PH BS or CAR? Any combat documented? If yes, then he gets the 38 USC 1154(b) combat bye. Everything he says is automatically true. He has combat + mental problem = Service connection. Always remember "Symptoms, not treatment, are the hallmark of a chronic disability" Wilson v. Derwinski 1990. He did not have to have a diagnosis of Pretzel brain to make his case. He merely had to exhibit all the symptoms. The medical records will speak volumes on this claim. CUE can be found based on the correct facts not being before the adjudicator. The fulcrum will devolve to the "manifestly different outcome" and that is where most Vets bite the dust. His saving grace will be the 1154(b) Combat Enhancement.

Fast forward to 1985. It may be that by not showing up for his C&P exam that he saved his bacon. By not reporting, VA automatically dropped the reopened claim. It's basically as if he had not even reopened it. If he had reported, been measured and poked, and a finding of PD rather than bugf**ky had been entered, it would have been a final adjudication reaffirming (and superseding) the original claim. Once that happens you cannot disturb it ( the original) with a CUE. Each new adjudication erases the one before it if unappealed.

Okay --here's where it gets tricky. You say he won in 2011 and got the 30%. Now, did he appeal that and get to the 70% all on that original claim that he won in 2011? Very important. If it is still the same claim stream from 2011--- uninterrupted---, you can still legally appeal the effective date as part of a Fenderson ongoing staged rating. VA will undoubtedly deny the earlier effective date. Duhhh? The important thing is to get the foot in the door now while you are arguing the correct percentage and/or TDIU. You really should argue (or have argued) the effective date needed to be revised when the percentage was objected to within a year of the grant of SC in 2011. I can't help you on that one. I loaned out my DeLorean and besides, the flux capacitor is toasted.

That's how I see it playing out. Best of luck to the friend in every respect and thank him for not being selfish or emigrating to Canada for the duration. As a humorous point, if everyone who said they were in Vietnam really was, the American population would have declined for lack of males to procreate.

Edited June 7, 2013 by asknod

[john999]

I vote for a getting a lawyer. I read a case that ken Carpenter recently won at the COVA. This guy was drafted or joined the army in 1951. He lasted about 4 months and was discharged for the good of the service due to him having what army said was a congenital defect in his hips and back. None of this was noted during enlistement, but he did have scars on his back. The vet then filed for SC for his back. Well, he got denied in 1953 I think. He spent the next 60 years filing claims for his back getting nowhere. He hired Carpenter and Carpenter got him SC'ed at the Court which is rare. It still has to be remanded for disability rating and effective date, but at 80 years old plus they vet is finally SC'ed. He won partly on his own statement the VA accepted one time back in the 60's that he fell during Basic.

AskNod: You say an unappealed adjudication erases the one before it. What if you appeal and lose, but your rating remains the same? Does that erase the orginal claim? I must have asked for an increase 10 times between 1973 and today when I file for an increase in my DMII. I was originally SC'ed just for mental disorder. Now I am SC'ed for 6 other physical AO conditions. I will have appealed all those conditions because they have gotten worse or were low balled to begin with when first rated.

[FormerMember]

Think of it like putting asphalt down. You keep paving over it with each claim for increase or reopening. Each layer seals the one before it. In VA jurisprudence, we do have the right to correct an injustice that we fail to appeal for whatever reason (CUE). That does not hold true when you ask at a later date to increase a rating or reopen an old denial. If they deny and you never appeal it-yes- CUE is available.. If you come back ten years later and ask for an increase again or try to reopen a claim that was denied previously and they deny it yet again, it "paves over" the old request and denial.

Generally, the most recent adjudication for an increase or reopening is the one susceptible to be overturned on CUE (if unappealed). If you do not appeal and fight, you are telling the VA you agree with their decision. You cannot in good conscience come back in 10 years and say "Ya know that time when you denied me in 94? Well, you denied in 96 ,too. Remember? And again in 99. I want a do over on the 94 one. I think you screwed me." VA is not amenable to doing it that way. Since they tend to screw us all the time, I generally appeal every facet of a denial from every angle and gradually relinquish the ones that will have no bearing later. Always remember the VA's motto. "You have the right to remain stupid. We hope you do. If you wish to speak to counsel, you may do so after you lose."