Have A Few Ratings Over The Years, All Basically The Same?

[MartyL16]

All the way back to 1987. Usually with the same denials. Never did they ever go back to the active duty records to "confirm" what I was telling them.

Rating usually stated "...is continued at %". or "remains denied" and you know what. I was too depressed and sick, and ignorant of how to proceed, how to fight for me, until lately!

My questions: Since they referenced no "codes", never explained why, and even when I stated extreme pain, on movement, did the wincing, refused to go past my "pain point", the ratings always said "mild pain". Since 2009 they stated they had no access to my records on the computer, so the only info that they had was my verbal answers to their questions.

Have to mention that I have NEVER seen "them" use a worksheet from the VA. Always saw them scribble a word or two on a regular tablet. Also never had an exam that went more than about 15 minutes.

I am thinking maybe since the info does not actually reflect what is in my "actual" records(that are only) referenced by "clinic name" but no specifics confirming my claims, shouldn't I have other appeal or legal rights?

Maybe their failure, over at least 4 separate ratings, to give me my rights of "due process", or whatever.

Since they always failed to describe the details, or use codes, maybe I can submit as "reopened claims" based on facts that they "missed"? Afterall, they now at least "mention" records that they have and should have had since 1967 and beyond.

For the record, I have an SC 0 from active duty, DM II from 2004 with a marginal SC % presumptive to AO from 'Nam and Thailand.

Thanks

[free_spirit_etc]

"If I can get them to reevaluate back to then, or after 1988, when I again asked for an increase, and was denied from then to now."

Generally a newer decision subsumes an older decision. So generally, when you see someone be able to go back to a very early date, there were no subsequent decisions in the meantime, or they are still appealing the most recent decision. But if you have several intervening final decisions between the original decision and now - it is hard to go back and re-argue the first one.

"It appears that they "NEVER" actually looked at my records in depth. You see some of my court citations. Could this be a CUE, or should I just try the "reopen" on new and material as it is apparent they never reference and PFT exams from '85 except their own."

For CUE you would have to show that they made a clear and unmistakable error in that previous decision. They don't actually readjudicate the claim. They don't say they really should have made a different decision. It is different than an appeal. You have to show that no one with any amount of human IQ potential could have looked at the evidence and came up with that decision. For original claims, from what I have read, the service records are mostly just to establish SC. The follow up records are what they go by to discover current level of functioning. (i.e. your disability). So they won't generally use the older PFTs to decide how disabled you are now. They only use the older ones to determine if the condition started in the service, or if there was chronicity.

Edited November 4, 2013 by free_spirit_etc

[free_spirit_etc]

Wonder what the laws were, or where to look. I see a lot of VN and KOREA vets using the "due process" approach. This from a rebuttal to a SOC:

The American Constitution requires that a person cannot “be deprived of life, liberty, or property, without due process of law.” The Federal Circuit also stated, “We find that a veteran alleging a service-connected disability has a due process right to fair adjudication of his claim for benefits.”

Do they win with this argument? They generally consider if you had the right to file a claim, be informed of the decisions made, and appeal the decisions, your due process rights were met. Kind of sucky when you find out years later that your claims were not being decided fairly - and they say you should have caught it and complained back then, though...

There is kind of a tangled web involved....

[MartyL16]

"So my "mind" says that maybe, just maybe there is a possible presumptive AO, "more likely than not" for the "CHRONIC PVCs" what came first, "the chicken or the egg" and with ALL of that association, presumed or otherwise direct, I have "ammunition" for the sarcoidosis and my "acquired" exo-Cushing Syndrome(not disease) residual effects as secondary to sarcoidosis treatment by high dosage prednisone (corticol steroids)."

I am not following your line of reasoning here. I certainly agree that you have ammunition for the sarcoidosis. But the ammunition is that it started in service and was treated in service. It is already SC. You just need to increase the rating. Even if you could get your doctor to say that AO caused your sarcoidosis, I don’t see how that relates to the PVCs.

And I agree that you need to follow up and see if you can get your Cushing Syndrome and / or residuals SCed, to the extent it was caused by the high-dose steroids used to treat your sarcoidosis.

But I am not seeing the link to the PVCs in all of this.

I believe I may have explained this in a later post or reply. I am not sure where the confusion came from but the sarcoidosis and the PVC are only possibly related because of possible AO connection, as is the DM II is already confirmed. I haven't asked the cardiologist for his opinion lately.

Marty

[MartyL16]

"If I can get them to reevaluate back to then, or after 1988, when I again asked for an increase, and was denied from then to now."

Generally a newer decision subsumes an older decision. So generally, when you see someone be able to go back to a very early date, there were no subsequent decisions in the meantime, or they are still appealing the most recent decision. But if you have several intervening final decisions between the original decision and now - it is hard to go back and re-argue the first one.

"It appears that they "NEVER" actually looked at my records in depth. You see some of my court citations. Could this be a CUE, or should I just try the "reopen" on new and material as it is apparent they never reference and PFT exams from '85 except their own."

For CUE you would have to show that they made a clear and unmistakable error in that previous decision. They don't actually readjudicate the claim. They don't say they really should have made a different decision. It is different than an appeal. You have to show that no one with any amount of human IQ potential could have looked at the evidence and came up with that decision. For original claims, from what I have read, the service records are mostly just to establish SC. The follow up records are what they go by to discover current level of functioning. (i.e. your disability). So they won't generally use the older PFTs to decide how disabled you are now. They only use the older ones to determine if the condition started in the service, or if there was chronicity.

Thanks. I know you can only file a CUE once per item, or that rating. I might have nothing to lose for 1987, but would really like to say to them, on ther day I left Active Duty, I was Stage 1, on prednisone, had residuals, fibrosis etc, PFT exams about 2 weeks old now rate me fairly, and by the way, while you are at it, explain why all my requests for increases were never evaluated including my recurrence in '92-'95, at any rating subsequent to 1987, for changes, residuals, and yes, whatever was required to give me my ratings according to the current laws then and now. Somehow, I think that has to be valid and maybe a CUE but I haven't looked at an attorney because most probably I can't afford one. That is why I do all this work.

Marty

[free_spirit_etc]

Most VA attorneys only take a portion if you win. So you might want to check into that at some point.

I am not saying you will never win a CUE claim. I am saying it won't be easy. The standards of proof are so much different. But if you keep reading and studying, you can keep putting it together. But you want to make sure when you file it -- you have it right. I wouldn't do it half-baked. And in the meantime, you probably want to get SC for the conditions you can get SCed on... and the earlier effective dates, cues, increased ratings can still be done later.

But I also totally get wanting to go back and prove to the VA you were right. I am dealing with that on my husband's claim. Widows can't file CUE claims on any decisions made on their husband's claims. We can just file for accrued benefits for pending claims they had at the time of their death. But I want to go back and show them how many errors they made. I say "error" lightly though -- because I think they knew exactly what they were doing. But since they pretend like they upheld their duty to fairly adjudicate the claim, then we have to pretend like they made an "error."

[free_spirit_etc]

When you are building your court cases, keep in mind there are different arguments for CUE and for regular appeals. So some of the really nice arguments on appeals aren't valid on CUE claims. And if you make the "wrong" type of argument on any of the issues, they will seize that argument.