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Denied Bronchitis 2004 Approved Asthma 2012

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SigBnSoldier

Question

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.

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On 5/6/2014 at 2:36 PM, pete992 said:

 

I myself think I fall in the category of the crazy one, so here is my humble opinion.

 

You can file a CUE but CUEs are very hard to win even with a lot of evidence in your file. VA, BVA and CVAC will most likely come to the conclusion that something in your file makes the original decision debatable therefore your claim does not meet the standards of CUE.

 

IMHO, you can still file a NOD EED since your most recent claim was granted around September 2013. It would be a lot easier to win and you do not have to go through all of the stress that filing a CUE will cause.

 

Fire your VSO ASAP; revoke their POA so they will not cause any more problems. I think what you are looking for is Clemons VS. Shinseki, 23 Vet. App. 1 (2009) Basically, when a veteran files a claim, he/she is seeking service connection for the symptoms regardless of how those symptoms are diagnosed and labeled. Keep in mind that winning an EED should award you back to your original claim.

 

Because you are filing a CUE and/or NOD for Asthma/Bronchitis, VA will most likely focus on these claims and not your PTSD. So you should have no worries about them trying to reduce your current rating.

 

You can file a CUE for the 2004 rating decision and a NOD for EED for the 2013 rating decision at the same time to try to cover your basis and not lose out on a timely appeal.

 

Hope others will chime in.

 

Pete

I personally think this is good advice.  In my experience VSOs are loose cannons and don't have the time to coordinate with you.  They are possibly "good meaning" individual.  However, if you have the time to follow and care about your claim, no one is going to be as good an advocate for you than yourself.  Once you get to appeal you could consider a lawyer.... Thought my impression is the first appeal (BVA) you can handle yourself.

Just my thoughts and there are many others who are more experienced here.  I am batting 100% on my own been working on this since 10/2015.  Just one a CUE moving EED to 1997 and unadjudicated claim back to 2001.  Won both on first submission with no appeal.  The info here was a big help.  I have a new claim in (2 increases and 2 previously unclaimed conditions) starting now.  We'll see how it pans out.

So my perspective is "fresh" and untested. 

Edited by syne7
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2 hours ago, syne7 said:

I personally think this is good advice.  In my experience VSOs are loose cannons and don't have the time to coordinate with you.  They are possibly "good meaning" individual.  However, if you have the time to follow and care about your claim, no one is going to be as good an advocate for you than yourself.  Once you get to appeal you could consider a lawyer.... Thought my impression is the first appeal (BVA) you can handle yourself.

Just my thoughts and there are many others who are more experienced here.  I am batting 100% on my own been working on this since 10/2015.  Just one a CUE moving EED to 1997 and unadjudicated claim back to 2001.  Won both on first submission with no appeal.  The info here was a big help.  I have a new claim in (2 increases and 2 previously unclaimed conditions) starting now.  We'll see how it pans out.

So my perspective is "fresh" and untested. 

SYNE, I am not sure if SigBnSoldier is still around but I think VA denied his CUE claim but granted his NOD. There was some other issues he had but at least this portion was corrected and he got a nice retro check.  It just proves that filing a CUE claim should really be a last choice thing because they can be quite lengthy and VA can come up with a last minute your claim does not meet the standards of CUE when a veteran can just file a NOD and win their correct rating or effective date.  Congrats on your win.

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