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]

I have two complete copies of my claims file. In the 2004 denial I went over the VCAA notice. There is no election letter. The notice simply states if I don't send more evidence I will be denied.

Also, I never received the VCAA notice (minus election form) because I had sent a 4138 to the VARO a month before they sent it to me stating I was homeless and didn't have an address.

Should I send a note the RO working my EED claim mentioning this? Does it matter?

Bump for response?

[Berta]

Gee...I am sorry no one answered you yet.....

"Should I send a note the RO working my EED claim mentioning this? Does it matter?"

If you mean the VCAA response form, Yes it might matter.

I am not sure what you mean by election form. Maybe you mean the DRO or traditional appeal form....

I got a VCAA letter for my 20O3 AO DMII death claim.

But there was no Response form with it and nothing to indicate to me I had to respond.

The RO denied my claim saying I did not respond to the form I never got (WTF?)

I raised this issue on my I-9 to the BVA. My rights had been violated.

By then however I had plenty of med evidence and 2 IMOs that the RO had completely ignored.

I raised that legal point with the BVA as well.

BVA agree with me that my VCAA Notice had been deficient.But by then the evidence I had sent to the BVA ( in case the RO swiped it from my C file) had mitigated the damage done by the illegal VCAA letter.

"Where does the NOD go, Huntington or Los Angeles? I sure hope you guys say Huntington, but I don't think you will."

I had similar problem. I sent my NOD to both the Nehmer VARO (who made the award on my AO IHD claim) and also to my AOJ VARO-Buffalo.

In the NOD I told them I was sending it to both VAROs to determine who had proper jurisdiction over the NOD.

(I checked this with the NVLSP lawyer I know and he agreed that this was a good idea...send the same NOD to both places)

My AOJ Buffalo has the NOD and is 'working on it'.

(But they cant read and the Nehmer VARO can )

You sounded like you had two great ways to go on your claim in the beginning posts......

E bennies isnt always reliable.....but at least the claim is moving somehow.....

[carlie]

Personally, I would go for an EED by way of 3.156 and/or 3.157.

I would pull out the active duty evidence used in the 2012 award of service connection

and see if that evidence was NOT included in the 2004 denial.

IMO - this is a much easier and direct route than the claim for CUE.

The one thing I would question myself on is, if there was sufficient medical evidence

of record, in the 2004 decision, to merit a compensable rating, along with an award for SC.

Also have to consider the regs for Bronchitis v Asthma, that were in play when the 2004 denial

was made.

jmho

2004 Denial

5. Service connection for Bronchitis.

Service connection may be granted for a disability which began in military service or was caused by some event or experience in service.

Service medical records show you were seen on several occasions with complaints of flu like symptoms, allergy problems, and asthma. No reference is made to bronchitis. Your separation examination also makes no reference to bronchitis. (This is not true, my SMR's are laced with Bronchitis diagnosis, at least 4 different ones).

The treatment records submitted in connection with this claim, shows a past medical history of asthma.

By letter dated March 3, 2004 you were asked to provide medical and other evidence showing the existence of your claimed condition, and that they were incurred in, aggravated by, or otherwise linked to your military service. No response from you has been received by this office.

In the absence of evidence that shows bronchitis, had its origin in service, a grant of service connection may not be made at this time. Therefore, service connection for bronchitis is denied.

2012 Award

2. Service connection for asthma.

Service connection for asthma has been established as directly related to military service. The evidence shows this condition existed during your military service.

[SigBnSoldier]

Thank you both. A CUE was submitted by my VSO in late April. It showed up on ebenefits as "VA form 21-4138" That's it, nothing more. It's early, so I'm not worried about it.

In addition I drafted a NOD and sent a ton of continuity evidence from discharge to today, in case I win, I wouldn't want them to say I didn't have asthma the whole time (1996-2014). I sent that NOD to Huntington, which they signed for on May 19th 2014. Last week I walked into the Los Angeles RO and turned in a second copy of the NOD to the public contact and received a time/date stamped copy.

Public contact LARO employee insists the NOD should be done there. Either way, they both have it, they can fight over it, or both lose it, or whatever they do.

In my NOD, I wrote, "My VSO has turned in a CUE claim to be separately considered, I understand it will be put on hold while the NOD is decided."

Indeed I did mention CFR 3.156. Pointing out that when I received my first copy of my Cfile in 2012 I noticed 4 diagnoses of "Bronchitis" in my SMR's, and since my denial in 2004 states "No reference to bronchitis is made in your SMR's" could these be newly discovered service records, and if so consideration of CFR 3.156 would be in order. If not, then a serious rating error has been made.

Touche!

[SigBnSoldier]

Claim file brokered from Los Angeles to Boise RO on Thursday. WTF? Do they broker these type claims?

[SigBnSoldier]

Update-

CUE moved to Prep For Decision in Los Angeles.

The same issue is on appeal. Got a call from a VSR some time back, asked me some questions about the partnered appeal. He told me the appeal would have to wait while the CUE was decided, so I am getting two runs at this same issue. If the CUE prevails he says the appeal would be considered resolved.

Hopefully the Prep For Decision phase is only a few months, I'll update when I get more news.