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 pete992.

I am waiting on the 800# callback so I can ask them to verify, as ebenefits still shows a pending appeal.

In July I had a VSR call me from LARO and ask me about my NOD, whether I wanted to do a DRO or traditional, that's when I asked him what was up with the CUE, while I was on the phone with him he added the CUE claim to my ebenefits open claims and told me if I would have to wait on the NOD for the CUE to be decided. I asked him, "but is it redundant? Wouldn't VA have to find CUE in order to award me and EED for asthma?" He told me not necessarily...

So, I'm assuming they didn't combine them, but I'll verify with the 800 folks.

By the way, I paid attention to your original post and did file a NOD and CUE, thank you again.

Edited December 3, 2014 by SigBnSoldier

[FormerMember]

One thing you should consider if you cite to 38 CFR 3.156. You should be specific as to which section -i.e. (a), (b), or (c ). Each has different facets and none are alike. If you refer to ( c) as in new evidence such as Service Dept. Records which are only now being associated with your c-file, all well and fine. Pardon me but I sense you are saying your realization recently of the contemporary SMRs revealing several mentions of Bronchitis constitutes 3.156(c ) evidence. Sadly, it does not. If you yourself had a copy or even the original SMRs and submitted them recently in conjunction with this claim, then yes, they would fall under 3.156(c ) assuming VA did not have them or retrieve them from the NPRC.

3.156(c ) has become a minefield for VA. Previously ensconced over in 3.400(q) until 2004(?), it was well hidden. VSOs were clueless. With it's relocation into 3.156, it became far more visible. VA promptly started saying "Well, hold on. This new evidence did not materially contribute to a win all by itself" which is a prime ingredient. Hell, they even did it to me. They said yes, you have Porphyria but you were never in RVN ergo no AO exposure. After showing boots on the ground, they promptly denied again based on my failure to show it manifested within a year to a compensable level (10%). By ignoring my lay testimony which was protected by my 1154(b) combat protection, they got away with it. We made an end run around that and my doctor simply said it was secondary to my Hep C. 3.156(c ) jurisprudence is still a work in progress as we see every day up at the CAVC. It is becoming far more important with each case based on it. VA fights equally hard in each case where it is employed to narrow the scope of the win to a "Well, okay but it happened on a Thursday so it is not material or applicable to anyone who suffered this type of injury disease on a Monday."

I nicknamed this the "VA Thursday rule" years ago after Ambassador William Sullivan (Laos-1970). He preferred we didn't drop napalm (ever) up there but if we did, he preferred it to happen after Thursdays to make sure it missed the newspapers. By Monday it was yesterday's news and escaped attention. We were careful to CYA and send him a TWX on Sunday night informing him the "exigencies of war" demanded it's use but he was unavailable to approve it. VA has likewise tried for the last 10 years to limit the force and implications of 3.156(c ) with ridiculous arguments. They lose them all and we are gradually finding (c ) to be a useful tool. It has it's applications in law but I do not believe yours is one in this particular case.

CUE is a very difficult concept as well. You can have all the ingredients and still lose because VA claims it was not outcome determinative. The CAVC is loath to disturb these things so we usually get short shrift. The Fed. Circus, on the other hand, has no compulsions about handing down bitchslaps if they are in order.

a sends

Merry Christmas

Edited December 3, 2014 by asknod

[SigBnSoldier]

The NOD is still pending.

[SigBnSoldier]

Just found in my claims file that both attempts to mail me notification in 2004 were returned undeliverable to VA and that prior to notification I sent VA a statement in support of claim telling them I was homeless living on the streets.

Indeed I never found out about my denial from the VA. Does this mean anything? Should I inform VA of this since my appeal is still open? Or can I send in a NOD on the CUE informing them of this?

[FormerMember]

Hooo, doggies. You are in high cotton. If VA is/was unable to contact you, the claim goes into the deep freeze. This failure to communicate creates equitable tolling. The doctrine of laches allows you to return any time you get your defecation lined out and start over.

https://asknod.wordpress.com/2012/02/21/cova-manio-v-derwinski-doctrine-of-latches/

[SigBnSoldier]

I think I'm out of my league now. Some of the language is too difficult for me. I think a lawyer would be good at this point?

I just went through discharge summeries, VA mailed the second notification the same day I discharged from West LA VAMC to the same wrong prior address, when in the discharge notes it stated I'd be returning to Santa Barbara county.

So, the complication is, two of the contentions in that denial were later "reopened" and awarded to create a combined rating of 80% P&T in 2012.

What to do?

This is iron clad proof from my claims file I never received notification.

The CUE was already denied a few weeks ago, and it wasn't under this theory. As I understand it CUE is a one shot deal, so I wouldn't now be able to inject this theory into the mix would I?

And since the PTSD with Bipolar was awarded now but denied back then, how would I work that since I "reopened" and won already?

Edited December 10, 2014 by SigBnSoldier