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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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SigBnSoldier

Denied Bronchitis 2004 Approved Asthma 2012

Question

Two months ago I received my rating decision for PTSD and Asthma. Was awarded 70% PTSD/Bipolar and 30% Asthma, IU/P&T.

In October 2003 I submitted a 7 contention claim that included "bronchitis". The claim was denied one year later without ever having been called to any c&p exams. In the denial for "bronchitis" the reasons says there is no evidence in my service medical records or mention of bronchitis, that my symptoms are asthma and respiratory difficulties from flu like symptoms in my SMR's.

In April 2012 I submitted a claim for PTSD and Asthma, ordered a copy of my C-File for the first time, and there plain as day in my medical records are numerous treatments in service for bronchitis and asthma.

Had a C&P exam in April 2013 for asthma, the c&p doc scratched his head, it was a no brainer to him, the evidence was plain as day in my SMR's and I definitely had continuity evidence in my file as well as current diagnosis.

The ONLY new evidence I submitted with this claim was updated continuity evidence, as well as a single treatment record for an asthma attack at a German hospital which happened a year after I discharged. That being said, the VA treated this claim as a "reopen" claim and approved it easily, but under the diagnosis of Asthma.

My question-

Shouldn't the VA have re characterized the bronchitis claim as Asthma? Do I have grounds for an earlier effective date? The evidence was clear in my SMR's, which the VA did have at the time of the initial denial. Should I file for CUE?

And what will be the repercussions of filing such a CUE on my PTSD rating, will I be reevaluated and possibly lose my P&T even though I was just rated two months ago?

Thank you in advance, hope this post isn't too confusing.

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You can file a CUE and probably/possibly win. The VA could reduce your current rating/P&T but it is highly unlikely. The VA is supposed to look at you sympathetically but we know they don't. You used to be able to claim breathing/lung problems but know they want us to be more specific. I'd go after it. It is a CUE, so I can be filed anytime after the claim has closed. Maybe you need a little break, first, and some time to adjust your finances, while you plan your attack. jmo

Did the VA decide the issue of asthma, in the first claim??

pr

Edited by Philip Rogers

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I would compare the Evidence and Reasons and Bases Sections

from the prior denial (where you feel the CUE was made)

to the decision that has now granted SC.

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Thank you for your responses. I'll post both decisions below starting with the denial in 2004-

2004 Denial

5. Service connection for Bronchitis.

Service connection may be granted for a disability which began in military service or was caused by some event or experience in service.

Service medical records show you were seen on several occasions with complaints of flu like symptoms, allergy problems, and asthma. No reference is made to bronchitis. Your separation examination also makes no reference to bronchitis. (This is not true, my SMR's are laced with Bronchitis diagnosis, at least 4 different ones).

The treatment records submitted in connection with this claim, shows a past medical history of asthma.

By letter dated March 3, 2004 you were asked to provide medical and other evidence showing the existence of your claimed condition, and that they were incurred in, aggravated by, or otherwise linked to your military service. No response from you has been received by this office.

In the absence of evidence that shows bronchitis, had its origin in service, a grant of service connection may not be made at this time. Therefore, service connection for bronchitis is denied.

2012 Award

2. Service connection for asthma.

Service connection for asthma has been established as directly related to military service. The evidence shows this condition existed during your military service.

An evaluation of 30 percent is assigned from May 9, 2012.

We have assigned a 30 percent evaluation for your asthma based on your VA examination results dated April 19, 2013 which shwed:

-- Daily inhalational therapy

--Inhalational anti-inflammatory medication

Additional symptoms include:

--Intermittent oral bronchodilator therapy

--Ratio of Forced Expiratory Volume in One Second (FEV-1) to Forced Vital Capacity (FEV-1/FVC) greater than 80 percent of predicted value (87%)

The effective date of this grant is May 9, 2012. Service connection has been established from the day VA received your claim. When a claim of service connection is received more than one year after discharge from active duty, the effective date is the date VA received the claim.

Okay, so am I wrong, is the VA saying in the first decision it's not in my records and in the second decision it is? Or is the difference in the term "Asthma" and "Bronchitis" the reason I was denied? Or, is it CUE?

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What is the condition that makes you unemployable? What about the other conditions you claimed in 2003? Do you have medical evidence in your SMR's regarding them? I might file a CUE and wait for probable denial and then run this by a VA lawyer. Since it would be a nice pot of retro the lawyer might take your case even though he knows he will have to wait if you file a CUE. The VA often denies CUE's by just saying "There was no CUE in this decision" and you must appeal to the BVA and beyond. This takes years.

John

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PTSD with Bipolar disorder is the IU/P&T condition.

The other six contentions were denied because I didn't provide evidence of a current diagnosis and/or it wasn't in the SMR's. I think I could claim the denied broken ankle condition and win it, but it would be a 0% non compensable rating, besides, the ankle doesn't bug me much anyway.

The bipolar claim, which was later awarded under PTSD with bipolar disorder, was denied in 2004 because my SMR's are indeed silent of in service complaints or treatment. When I reopened the claim I had ironclad proof of my stressor and the examiner related the bipolar to the PTSD, thus it was approved.

Basically, it's only the asthma that I think would be worth pursuing.

So, next question, do I send in a NOD, since I was rated just a few months ago, disagreeing with the effective date due to CUE?

Edited by SigBnSoldier

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