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]

Great advice Berta, thank you much. Sorry, big storm at home knocked power lines down, we'll be without electricity for a few days.

[SigBnSoldier]

Is this good enough for the NOD to switch gears on the CUE? I can let the attorney (waiting for a callback) take over from there.

VA's Presumption of Regularity is rebutted with the enclosed documents from my claims file as well as VA treatment notes.

VA denied benefits on an original claim for "Bronchitis", Bipolar Disorder, Residuals of a left ankle fracture, left knee secondary to left ankle, mid and lower back condition, and two other uncontested contentions, on 10/21/2004. VA mailed notice to an address that I had informed VA I no longer lived at (See enclosed 21-4138 copy from claims file). That decision letter was returned undeliverable.

VA re-mailed decision letter on 1/19/2005 to the SAME wrong address that I didn't live at or collect mail from or leave a forwarding address because I was still homeless. VA hospital admission and discharge notes clearly state I was to go to a "transition unit" and then depart Los Angeles to Santa Barbara on the very same day VA sent the second mailing, 1/19/2005. Indeed I did depart Los Angeles on 1/19/2005 and did not return until April 2005. Mail does not appear instantly on the day it is sent. I was gone before that second mailing even left the RO mail room. I was never notified of my appellate rights and did not have any idea I was even able to appeal my denial decision.

VA's legal obligation to notify me has not been fulfilled and for Good Cause I request VA give me the one year I am entitled to for disagreeing with the 10/26/2004 denial decision.

By granting the 1 year time limit to appeal, effective dates for PTSD with Bipolar disorder and Asthma previously claimed as Bronchitis, 4/13/2012 and 5/9/2012 respectively, are Clear and Unmistakable Error. The evidence needed to overcome denial decision of 10/21/2004 has been presented and service connection for those same contentions was granted.

I also request the 1 year appellate period to disagree with Residuals of a fractured left ankle, left knee secondary to left ankle and mid and lower back condition, because I disagree with those decisions too.

And, is it enough to have notified VHA of my whereabouts, twice? Or did I specifically need to notify VBA?

Edited December 14, 2014 by SigBnSoldier

[FormerMember]

VHA is VBA is DVA. Bell v. Derwinski.1992. If VA had constructive possession of documents identifying your whereabouts at the VHA or VAMC you frequented before getting out of Dodge, then they have no legal leg to stand on. Just because VA's left hand does not know what the right hand is doing is no excuse. No presumption of regularity attaches to the mailings.

[SigBnSoldier]

Whew, had withdrawals while the site was down.

So I found this where the VLJ denied because the veteran had received his claims file, otherwise presumption of regularity was successfully rebutted. Citation Nr: 0212114. Any thoughts? Especially since informing the VA I was homeless and going to Santa Barbara is not specifically the same as providing them with a possible and plausible address.

Also, I'm still waiting on a call from Katrina.

Edited December 16, 2014 by SigBnSoldier

[SigBnSoldier]

Just got unofficial word from DAV that DRO granted EED of 1/1/2004 for asthma contention only for the NOD, not the CUE. This is a 36k Christmas gift from the VA!

It does complicate the rest of the goings on with the bipolar contention. Unfortunately on the NOD I only listed the asthma and not the bipolar, so it's going to have to be won a different way, it a lot of money at stake for that one. Not that the asthma is anything to laugh at.

I'll be able to update more when I get reasons for grant in the mail. Really happy and really grateful to all you guys involved in this thread, I would not have even filed the NOD had I not been on this site.

,

P.S. I haven't mentioned, I week ago I emailed the Undersecretary, Alison Hickey, she responded within 3 hours and said she forwarded my email to my RO and to DAV. I didn't want to muddy this thread with additional info at that time. Last night I logged into ebenefits and noticed my appeal was listed as "historical". Thought they canceled my appeal for some reason but DAV just called me with the news. YAY!

Edited December 19, 2014 by SigBnSoldier

[SigBnSoldier]

Today I mailed a regular old NOD contesting decision of 11/20/04 because VA failed to address PTSD with Bipolar disorder when the awarded me an EED for Asthma in December. I enclosed copies of my email to the Undersecretary which she responded to saying she'd forward to the LARO director.

The first issue on the NOD is "Presumption of Regularity" and enclosed documents from my claims file that show the RO received their decision letter back and remailed it after I didn't get it back in 2004-05. Also enclosed is VA treatment notes telling the VA I was not in Los Angeles, but in Santa Barbara, and also a 21-4138 prior to their denial stating I was homeless and no longer lived at the address they mailed their denial to.

I asked for the 1 year appeal period I am entitled to and if that is granted then the effective date for my IU P&T due to PTSD with bipolar disorder effective 4/13/2012 is CUE and that the real effective date should be 10/18/2003, date of original claim. Seeing that in 2012 I reopened the claim, not ever having been informed of my appellate rights and didn't know I could have appealed way back then. And that evidence was submitted and denial overcome in 2012 and service connection had been granted.

The long wait begins for this contention, funny how VA granted the asthma EED at 30% all the way back to 2003 but completely left off the big one that would give me 100%, PTSD with Bipolar disorder, which should also have been given an EED.

So the long wait begins again. I wonder if I should let a DRO handle this one too??