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.

[Berta]

I am going to assume that the claim was denied in the past ,regardless of whether you didnt get their mail or that they had no responses from you.

I am assuming that they denied the older claim for a different reason.

You posted:

"The decision to deny service connection for bronchitis is not considered to have been clearly and unmistakably erroneous because the decision was properly based on the available evidence of record at the time and the rules then in effect and the alleged error involved an exercise of judgement which cannot be characterized as undebatably erroneous."

"available evidence of record at the time"

I am thinking that you need a copy of your C file to make sure that they sent you (whether you got it or not) a proper VCAA letter.

"There was no nexus in the record for the 2004 decision. I did not think I needed a nexus when there were 4 documented diagnosis of bronchitis in my SMR, and yet the rater at the time wrote a rating decision stating my SMR's were silent of any mention of Bronchitis."

When VA says the SMRs are silent,I never buy what they are selling.... I have helped vets locally prove their SMRs were loud and clear.

In those cases it took a lot of time to do....hard to decifer handwritten SMRs sometimes.

I realized that in those cases the VA was not willing to take the time it took me to find what the vet needed for them to see.

One vet had extensive SMRs that never revealed much help.VA was right. They were silent, It was his 201 Personnel file however that contained a Captain's Mast and those circumstances got him an award. It was close to a quarter of a million bucks.

Because he never gave up on his case.100% P & T Bipolar SC.

I would NOD the CUE denial with copies of those SMRs if I were you.

Do you still have a 38 CFR 3.156 claim pending? Did you send them those SMRs copies for that as well?

PS: CUE is not a one shot deal. Vet reps made that regulation up so not to have to deal with CUE claims.

The BVA often dismisses some CUE claims "without prejudice"...meaning they will not award the CUE but if it is carefully reshaped, the VA might.....even at the RO level.

Edited December 10, 2014 by Berta

[SigBnSoldier]

I am going to assume that the claim was denied in the past ,regardless of whether you didnt get their mail or that they had no responses from you. Correct.

I am assuming that they denied the older claim for a different reason. Decision states because my SMR's are silent, which is false.

You posted:

"The decision to deny service connection for bronchitis is not considered to have been clearly and unmistakably erroneous because the decision was properly based on the available evidence of record at the time and the rules then in effect and the alleged error involved an exercise of judgement which cannot be characterized as undebatably erroneous."

"available evidence of record at the time"

I am thinking that you need a copy of your C file to make sure that they sent you (whether you got it or not) a proper VCAA letter. I have two copies. Yes, they sent a proper VCAA and a follow up stating they couldn't get records from private hospital asking me to get them. In this arena they had their bases covered.

"There was no nexus in the record for the 2004 decision. I did not think I needed a nexus when there were 4 documented diagnosis of bronchitis in my SMR, and yet the rater at the time wrote a rating decision stating my SMR's were silent of any mention of Bronchitis."

When VA says the SMRs are silent,I never buy what they are selling.... I have helped vets locally prove their SMRs were loud and clear.

In those cases it took a lot of time to do....hard to decifer handwritten SMRs sometimes.

I realized that in those cases the VA was not willing to take the time it took me to find what the vet needed for them to see.

One vet had extensive SMRs that never revealed much help.VA was right. They were silent, It was his 201 Personnel file however that contained a Captain's Mast and those circumstances got him an award. It was close to a quarter of a million bucks.

Because he never gave up on his case.100% P & T Bipolar SC.

I would NOD the CUE denial with copies of those SMRs if I were you.

Do you still have a 38 CFR 3.156 claim pending? Yes I do. Did you send them those SMRs copies for that as well? No I haven't sent them my copies but have told them where to find them. With the NOD can I now inject the equitable tolling theory in addition to copies of my SMR's? And can I also add a contention of PTSD with Bipolar disorder to that NOD because of equitable tolling?

PS: CUE is not a one shot deal. Vet reps made that regulation up so not to have to deal with CUE claims.

The BVA often dismisses some CUE claims "without prejudice"...meaning they will not award the CUE but if it is carefully reshaped, the VA might.....even at the RO level.

[FormerMember]

Signal Battalion Soldier posits this: <<<<<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?>>>>>>>>>>>>>>>>>

CUE is a many splendored thing. What you cannot do is reargue the same theory. You can argue a brand new one though. If you are pro se, and only if so, you are allowed a vast amount of leeway here. In the NOD of the CUE claim, you may change canoes in mid-stream and change the contention or simply add a new theorem. VA is forced to give you a bye for your ignorance.

So, you opine and say "After further research in my c-file, I note the failure to attain the Presumption of regularity re the mailing of my denial in 2004. I received neither and your records clearly show them being returned as undeliverable. Therefore, equitable tolling was, and still is, for application here. The effective date is clearly and unmistakably in error due to VA's failure in delivering the denial decision.

Technically, this isn't CUE anymore. This is a violation of due process as your 2004 adjudication has never before been legally completed. It is in cold storage unless and until VA can prove that you have received the denial via a mailing on their part.

38 CFR 19.25 is for application:

§ 19.25 Notification by agency of original jurisdiction of right to appeal.

The claimant and his or her representative, if any, will be informed of appellate rights provided by 38 U.S.C. chapters 71 and 72, including the right to a personal hearing and the right to representation. The agency of original jurisdiction will provide this information in each notification of a determination of entitlement or nonentitlement to Department of Veterans Affairs benefits.

(Authority: 38 U.S.C. 7105(a))

You have yet to "legally receive" your 2004 denial and your right to appeal that "determination of nonentitlement to Department of Veterans Affairs benefits." has yet to be realized. That's not CUE. It's an incomplete adjudication that's been temporarily stymied. VA should have pushed pause in 2004 and got out the Rolodex to find you. If they don't, you're merely on hold. You need a good law dog, Cowboy. There's a lot at stake here financially. In the alternative, they might argue that by possession of your c-file, you can reasonably ascertain that you were denied in 2004............. BUT........................ the "clock of equitable tolling can only begin with your receipt of the c-file. Thus, on paper, you now have 365 sunrises and sunsets from date of receipt of c-file to legally file your NOD of the 2004 denial. Got it?

[SigBnSoldier]

Thank you for explaining in the least sophisticated way, I need it that way :)

So, my ship is sunk, because I did receive that copy of my cfile on 1/3/12. In going through looking for more evidence to combat my asthma CUE denial I noticed handwritten notes on the decision letter with mailed date scratched out and remailed date written in, at which time I lived in a tent on the side of the 405 freeway for the next 4 months, never to set eyes on a mailbox. No mail was waiting for me either, because I had no address. Alas, finding those mailed/remailed dates was a week ago, almost two full years since receipt of my claims file. So sad.

I suppose I'll argue the CUE on asthma only with copies of my SMRs.

Edited December 10, 2014 by SigBnSoldier

[FormerMember]

No sir. You do not give up the ship. You are not an attorney. You do not know of suspense dates and such. My statement above is me playing the Devil's advocate as VA would. You had these records in your possession. Period. So what? They're legal mumbo jumbo to most. How could you know that VA's failure to contact you was a violation of due process? Now for some constructive law.

There are either one, the other or both of two things you can fight on appeal of a claim. You are appealing the law (case) or the facts (controversy) or a case of both. Here, it is case. You have not been served or mailed a copy of the denial. If you had, you could appeal from it. That it happened in your absence while your zip code was flexible is of no matter. When these things happen, everyone stops what they are doing and waits for you to re enter the system. Again, without any law training and a real lawyer representing you at any time in the past, you are blissfully ignorant. You do not know what happened to the 2004 claim. You could not know they denied you because they were never able to tell you so. If and when you win, you suddenly discover that the old claim was never closed out by the failure of the mailing, you can raise a stink and claim your effective date as 2004 and cite to Henderson. This can only be done at the time of the original win for the claim or within that golden first year to object with a NOD. All the more reason to get on the stick, sir. It's elementary VA law if you know what you are doing. You will win it but you have to have a good legal mind to guide it. And by the way, I receive no Hawaiian cruises or tickets to Disneyland for referrals. I get to sleep at night really well though.

Your legal recourse is this. If you have not mailed in a NOD on the CUE denial, do so and include this new theory. A homeless gal in exactly the same circumstances got this equitably tolled and continued her old claim. VA will never grant it as it is almost a matter of first impression for the CAVC. That phrase means it has never been adjudicated in VA law to VA's satisfaction. It has, but not under the exact same circumstances as yours. Nevertheless all the claimants in these cases won. You will have no problem getting an attorney for this. If you need one who can actually sound this out like Phonics without blowing bubbles, private message me and I will give you several. I say many attorneys might be quick to take this because there is a large pot of money on the table that can be won.

After you have kited the new NOD, an attorney taking over would merely be picking up where you left off. He would never be allowed to revamp a CUE claim if you hired him before the filing of the NOD. He'd have to refile it with the new theory. If you have not filed a NOD on the actual win- again- here is another opportunity to pull 38 CFR 19.25 out of the hat and claim the earlier 2004 date as the correct one. This is why you need a take-no-prisoners leagle beagle.

When in doubt, look at my flag below. Never Chieu Hoi to the VA. Never. If you do, it's counted a a win for VA and they use it to defend their statistics.

Edited December 11, 2014 by asknod

[SigBnSoldier]

Awesome! I will draft my CUE NOD, and also include bipolar (70% rating) with the asthma (30%) with the new theory. Last question, do you recommend skipping the DRO option and straight to the BVA with the NOD?