ptsd Denied Bronchitis 2004 Approved Asthma 2012

[SigBnSoldier]

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.

[SigBnSoldier]

Thank you, I've updated my profile and will start researching what I need to write.

Can anybody kindly point me to the CFR that covers disability recharacterization?

[Reddit]

This happen to me.my claim was the opposite. I file for Asthma and they said it was not in my file,but they said I had bronchitis in my record. So I filed for bronchittis and they denied it.

[carlie]

Thank you, I've updated my profile and will start researching what I need to write.

Can anybody kindly point me to the CFR that covers disability recharacterization?

These may,or may not be what your looking for.

Hope it helps.

http://www.ecfr.gov/cgi-bin/text-idx?SID=9a81b41a0fa8da7da06ddf1f41d21da6&node=38:1.0.1.1.5.1.98.2&rgn=div8§4.2 Interpretation of examination reports.

Different examiners, at different times, will not describe the same disability in the same language.

Features of the disability which must have persisted unchanged may be overlooked or a change for the better or worse

may not be accurately appreciated or described.

It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history,

reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Each disability must be considered from the point of view of the veteran working or seeking work.

If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail,

it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.

[41 FR 11292, Mar. 18, 1976]

http://www.ecfr.gov/cgi-bin/text-idx?SID=9a81b41a0fa8da7da06ddf1f41d21da6&node=38:1.0.1.1.5.1.98.8&rgn=div8

§4.13 Effect of change of diagnosis.

The repercussion upon a current rating of service connection when change is made of a previously assigned diagnosis or etiology must be kept in mind.

The aim should be the reconciliation and continuance of the diagnosis or etiology upon which service connection for the disability had been granted.

The relevant principle enunciated in §4.125, entitled “Diagnosis of mental disorders,” should have careful attention in this connection.

When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examination or in use of descriptive terms.

This will not, of course, preclude the correction of erroneous ratings, nor will it preclude assignment of a rating in conformity with §4.7.

[29 FR 6718, May 22, 1964, as amended at 61 FR 52700, Oct. 8, 1996]

[Philip Rogers]

In your original decision, what did they rate in the decision?? Generally the last page lists the SC ratings and the NSC ratings. Did they rate the asthma as NSC??

Try to understand that what you call CUE and what the VA calls CUE are two different things. A CUE can only be made one year or more after a final decision.

pr

[SigBnSoldier]

Thank you for your responses, hope you all had a happy Thanksgiving.

I'm not so sure this is a CUE as much as I should file a NOD on my recent Asthma approval for an earlier effective date. In 2004 the rater writes in black and white that I have asthma. I also have solid continuity evidence from time in service to today. The evidence in the 2004 claim surely should have triggered VA's duty to assist and schedule a C&P exam for respiratory conditions, whether asthma or bronchitis.

I am terribly conflicted on whether to proceed with this, opening myself up to a complete re eval from the VA is a bit scary. My conditions haven't improved, that's not the fear, the fear is that my PTSD award was awarded under the benefit of the doubt, the stressor was not confirmed, but I had so many statements from guys in my unit and newspaper articles they accepted my statement. This is what I'm worried about, some new rater looking it over and claiming I need more proof. Which, I'm not sure I could find more. That is what I feel I'm risking.

[Philip Rogers]

Okay, you didn't answer my question(s) so I'm withholding any more comments. Thanks.

pr