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.

[FormerMember]

Roger that. You are never going to win that 2004 earlier effective date at at your local Fort Fumble. Get it to Vermont Ave. at your soonest. And call a Lawyer tomorrow morning as soon as you roll out for crying out loud. This is a carefully choreographed dance that can have no missteps. You have one opportunity to get it right. Make it so, Number One.

Merry Christmas

[Berta]

"You do not know what happened to the 2004 claim"

RIGHT. ASKNOD is always on the button.You could not appeal what you never got,.

Listen to the last radio show we did with Bob Walsh. maybe 2 weeks ago .......he immediately saw potential CUE in something I discussed with him....for a vet here at hadit----

He told me by email after the show-he had 2 more hours of good stuff to do too...we need to get him back on soon.....

The first time I interviewed Bob at SVR here many years ago we talked for 2 hours prior to the show to shape what we would cover.

Then when we did the show ,it ran over for an hour---we got 2 shows in one.....

We hardly mentioned the VAOLA stuff we had already discussed....it didn't matter...his enthusiasm and expertise make his show a wealth of knowledge.

he is an excellent attorney and his knowledge fully covers 38 CFR et al....

His contact info is here as well when you need it.

I tried to find a similar situation at the BVA yesterday but ran out of time......maybe I can find something there that is similar.

Is there a way you can prove you were homeless and had no mail box at all?????

That is heartbreaking to think of. A vet I helped years ago ( the one who got almost a quarter million in retro, had been a friend of my husband when he worked at the local VAMC and this vet lived in the Dom. Then the DOM criteria changed and they kicked him out and declared him homeless so some sort of Homeless vet program would kick in to help him.

He was, as the BVA decision awarded, 100% P & T SC for bi polar with an EED back to when he was homeless. Ironic.

Funny how things have a way of being rectified in the long run by VA. But as I always say

VA isnt our enemy.Time Is.

Edited December 11, 2014 by Berta

[SigBnSoldier]

Thanks Berta. I believe I can prove it. My treatment notes in discharge summaries have my inpatient VA psychiatrist stating on January 18th 2005, I would be going to a "transitional facility at West Los Angeles VA" for 1 day until my State Disability Check came the next day and then returning to my home town to try and get into a dual diagnosis treatment program. By the way, that transitional housing building is building 209. I had been on the streets for 4 months and off meds. I was brought in to the hospital by concerned citizens over my behavior... I truly belonged in-patient.

Apparently that discharge note popped me up on the VA's radar because that day, January 19th 2005, VA mailed out the decision notice for a second time to my old address, again, on the West LA VA campus, building 257. I was not in that building, and I also got on the VA shuttle that morning and departed for my hometown.

My VA treatment notes prove it, written by a Dr.

I suppose I should try to go the extra mile and see if the VA shuttle has record of me taking that ride to my home town too, on the very day VA mailed the notice to an address I no longer lived at, and they knew it, because there's a 21-4138 form in my Cfile informing VA that I was homeless with no mailing address.

Here's the thing, It isn't clear in my file that the second attempt to notify me was returned undeliverable. What is clear is that they did mail it to an address I didn't live at and that I did depart Los Angeles County the very day the mailed it.

I guess they could argue I turned around and went back to LA and retrieved the mail at an address I hadn't lived at for 7 months already and had notified them I didn't live there, but it seems far fetched.

Edited December 11, 2014 by SigBnSoldier

[SigBnSoldier]

Found my whereabouts, I can prove I went from WLA VAMC to my hometown residential rescue mission where I stayed for 3 months.

Edited December 11, 2014 by SigBnSoldier

[FormerMember]

Remember that the Presumption of Regularity in delivery of the mail is only granted when the mail does not come back as undeliverable.. It did in your case. If they mailed it to the wrong address a second time, it didn't improve the chances of your receiving it. You're golden with what you have. Put it in a fire safe just in case. You have a marvelous paper trail that VA is inadvertently created for you proving their ineptness. Sit back, let an atty. fix it and plan the ways you can enjoy your retro check which will be there in about 2 1/2 years if it catches a tailwind.

clear to active runway

[Berta]

I was unable to find anything at the BVA that would help here because what I found was the BVA saying that the claims process is not a "one way street" and in a few decisions they found the veteran had not supplied the VA with sufficient contact info whether they were homeless or not....

then I got a bright idea!!!!!

You could always file a NOD on what you assume the older denial was in 2004.

AND THEN you could , in the same document, ask for an extention to the NOD timeframe that would have been determined ,if you had received the 2004 letters from the VA.

You have some great evidence as ASKNOD said, and this type of NOD has to be filed for "Good Cause".

The regs are here somewhere and I will find them ...better yet, I will find and post my request for Extension of NOD for good cause...it contains the M21-1MR Good cause stuff.

here it is:

Department of Veterans Affairs January 6th , 2013

Philadelphia Regional Office

PO Box 8079

Philadelphia ,Pa. 19101 Re: 310/3POST/CG Berta M. Simmons

(address)

Nehmer decision dated January 17,2012

Department of Veterans Affairs Original Agency of Jurisdiction

C file # XX XXX XXX

Regional Office

130 South Elmwood Avenue

Suite 601

Buffalo, N. Y. 14202 2478

please be advised this is a

1. NOTICE OF DISAGREEMENT with January 17th,2012 VA decision

AND

2. Reminder of my October 28, 2012 Request for VA to CUE itself on Part of their January 17th 2012 decision to me..... sent to both VAROs above …. (enclosed as Exhibit A ,7 pages)

AND

3. Request for Extension of formal NOD deadline, as cited within M21-1MR, Part 1, Chapter 5,

Section B under (d) , and 38 CFR 3.109 enclosed. as Exhibits B & C 2 pages

I believe I am unable to properly respond via NOD to the January 17, 2012 decision,(first and second pages enclosed as Exhibit D) as the CUE issue I raised in October 2012, (as enclosed ) has not been addressed yet by the VA.I feel this is a significant reason, which shows good cause ,for VA to honor this request and if the request for extension of NOD deadline is denied,please consider this as my formal and timely NOD regarding the January 17,2012 decision I received. Exhibit D 2 pages

I can appeal any potential extension deadline denial with the BVA.

Of course if the CUE issue I raised in my October 2012 requests to both above VAROs, is resolved with a proper decision regarding the clear and unmistakable error I raised in my October 28th,2012 letter to you , then I would have no need to consider any NOD deadline extension or any extension denial.

The legally erroneous statement on page 2 of the January 17th,2012 decision is thus:

“ Entitlement to accrued benefits or cerebrovascular accident under 38 USC 1151 is granted with an evaluation of 100 percent effective August 9,1992 to March 1, 1993. “ as within Exhibit D

That is wrong based on all medical and legal evidence in VA's possession at the time of the veteran's death.

Along with the 7 page October 2012 request that VA call a CUE on the specific statement I mentioned I also sent 13 Exhibits, via USPS # 0310 0480 0003 7048 9159 (Philadelhia VARO) and # 0310 0480 0003 7048 9142 (Buffalo VARO) with tracking slips. Please advise me if any of those exhibits, are missing or lost and I will promptly send them to you again.

The 7 page CUE Request and all documents totaled 20 enclosures in my October 2012 submission.

The BVA, within http://www.va.gov/vetapp08/Files1/0805945.txt, has made this legal point regarding a case in which a widow failed to file a timely NOD and the BVA decision is correct in it's denial.

I reference it here in part ,however, only as to key legal issues the BVA noted:that are applicable to my situation.

“In McCreary v. Nicholson, 19 Vet. App. 324, 332 (2005) it was

held that:

“Therefore, the Court will adopt a three-part test

to determine whether equitable tolling based on

extraordinary circumstances is appropriate. First,

the extraordinary circumstance must be beyond the

appellant's control. Second, the appellant must

demonstrate that the untimely filing was a direct

result of the extraordinary circumstances. See

Barrett, 363 F.3d at 1321; Valverde, 224 F.3d at

134 ("If the person seeking equitable tolling has

not exercised reasonable diligence in attempting to

file after the extraordinary circumstances began,

the link of causation between the extraordinary

circumstances and the failure to file is broken,

and the extraordinary circumstances therefore did

not prevent timely filing."). Third, the appellant

must exercise "due diligence" in preserving his

appellate rights, meaning that a reasonably

diligent appellant, under the same circumstances,

would not have filed his appeal within the 120-day

judicial-appeal period. See Irwin, 498 U.S. at 96;

Sandvik, 177 F.3d at 1271-72. This standard,

though not requiring impossibility, ensures that

the exception (equitable tolling) does not swallow

the 120-day judicial-appeal period rule set forth

in 38 U.S.C. § 7266(a). “

The BVA correctly,in this decision, applied

McCreary v. Nicholson, 19 Vet. App. 324, 332 (2005), thus:

“Using this standard for the application of equitable tolling,

the Board observes that the appellant has not alleged or

shown that her failure to timely file the NOD in this case

was due to extraordinary circumstances beyond her control or

that the untimely filing was a direct result of the

extraordinary circumstances.”

To sum this up, I certainly feel that as a claimant I must exert “due diligence” over every aspect of my claims ,and I consider this to be an 'extraordinary circumstance'. I have preserved the timely filing date of my NOD here ,in the event the VA does not act on my October 2012 Request that VA call a Clear and Unmistakable Error on this part of their January 17, 2012 award letter:

“ Entitlement to accrued benefits or cerebrovascular accident under 38 USC 1151 is granted with an evaluation of 100 percent effective August 9,1992 to March 1, 1993. Exhibit A

That statement is clearly legally and medically erroneous, to my detriment as a claimant.

Enclosures:

Exhibit A Copy Oct 2012 CUE Request 7 pgs Berta M. Simmons

Exhibit B M21-1MR,Part 1,Chapter 5,Section B,

under (d) as highlighted 1 page

Exhibit C 38 CFR 3.109 2 pages

Exhibit D VARO January 17th 2012 decision

pages 1 and 2 Respectfully,

Berta M Simmons

Surviving Spouse of

Rodney Frank Simmons

XC XX XXX XXX

Last I heard this was with a 'specialist' at the RO ( whatever that means)

NVLSP advised me to file this with both VAROs above.

The 20 enclosures I sent with this CUE claim are prime facie evidence that the veteran was 100% P & T from August 1992 to October 1994 when he died, due to his Section 1151 Stroke , caused by the VA itself.

It was a Cue i FILED under 38 CFR 4.1 et al, specifically 4.6

and all of the medical evidence was in VA's possession when they made this decision,and established in the veteran's lifetime.

Only one piece of evidence from a former VA secretary dated 1993 to my husband (confirming the CUE basis) was not in my C file.Still documents from VA Central and the VA Secretary's office are within VA's possession anyhow.

This statement was part of my Nehmer AO IHD award,in response to my CUE claims of 2003-2004 that were set for BVA transfer but I got the Nehmer People to address them because they were filed way before the 2010 AO IHD claim was and were contingent on the outcome of the Nehmer situation.

Edited December 11, 2014 by Berta