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]

Yippee!

Also I am sure the DAV also considered 38 CFR.3.156, if these bronchitis entries could be possibly be considered as Newly Discovered SMRs. not sure but the rep would know.

[FormerMember]

Pete992 nailed it. It's exactly what I did. I won and then asked innocently "But sir. The date is wrong. I filed in 94 and you are saying date of grant. I disagree." No CUE battle. No big fight. It's a Fenderson affair. VA just doesn't know it quite yet. Once you get a can opener into it, it's fair game until a) you miss a suspense date or b) the Fed. Circus says it doesn't hold water. I've been busy getting ready for my son's graduation from Gonzaga courtesy of the Chapter 35 and Uncle Ric but I wanted to express the same sentiments as Pete did. Why make it harder when you already have the monkey by the short hairs?

Your P&T is done and secure.Unless you engaged in fraud, they cannot rescind it. It has nothing to do with this claim and there is no negative linkage. I wonder who spreads these rumors that VA is going to come and take your ratings away if you get in their face? If that were the case I'd be toast. Hell, for that matter, so would Berta.

[SigBnSoldier]

What about the implicit denial rule? Wont VA come back and say they considered asthma, denied it but just didn't mention it?

[ketchup56]

What about the implicit denial rule? Wont VA come back and say they considered asthma, denied it but just didn't mention it?[/quote

Please read from front to rear THE EVOLUTION OF THE PENDING CLAIM DOCTRINE by J.Russell on what the cavc and the fed.circuit has to say about this implicit, deemed denied crap. You have the ammo already. Don't bring more sand to the beach if not needed. JMHO.....

[SigBnSoldier]

Sorry for the delay, been admitted to Los Angeles VAMC for gallbladder surgery. By the way, this time the care was excellent.

Question, in the NOD, should I ask for a staged rating and what percent I feel I should be rated as well as sending new evidence of asthma attacks between 2003 and 2012?

[Guest]

Question, in the NOD, should I ask for a staged rating and what percent I feel I should be rated as well as sending new evidence of asthma attacks between 2003 and 2012?

First send in all the evidence you need to support your NOD but why ask for a stage rating? Don't shoot yourself in the foot, don't over think it. Just file your NOD and wait for Va's decision and if you don't like it appeal the decision to BVA.