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]

This claim has been decided yesterday, waiting on the decision letter because ebenefits is still showing the same effective date. I'm holding out hope they approved me at a 10% rate because that might be reason for the effective date to jhave been left the same. However, VA did change the name of my disability which makes me guess some part of the CUE was granted.

I did not here anything about my CUE for 3 months, it was as if nobody knew I'd even filed it. Then I got a call from a VSR asking me about the paired NOD, I took that opportunity to ask about the CUE and the VSR added the CUE to ebenifits while we spoke on the phone.

Had I not spoke with that VSR I have a feeling nobody would have even noticed it at all.

[SigBnSoldier]

DECISION

Entitlement to an earlier effective date of service connection for asthma previously claimed as bronchitis is not shown due to a clear and unmistakable error. The 30 percent evaluation is continued from May 9, 2012.

EVIDENCE

Rating Decision, and all evidence contained therin, dated October 21, 2004.

Claim alleging clear and unmistakable error received April 29, 2014.

Rating Decision, and all evidence contained therein, dated September 9, 2013.

REASONS FOR DECISION

Whether the effective date of compensation for asthma previously claimed as bronchitis was clear and unmistakable error.

Clear and unmistakable errors are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made. A determination that there was clear and unmistakable error in a prior decisoin that would change the outcome, then that decision must be revised to conform to what the decision should have been.

The decision to deny service connection for bronchitis is not considered to have been clearly and unmistakably erroneous because the decision was properly based on the available evidence of record at the time and the rules then in effect and the alleged error involved an exercise of judgement which cannot be characterized as undebatably erroneous.

Crud! I hate LARO! They burned me again.

Edited December 2, 2014 by SigBnSoldier

[SigBnSoldier]

Any thoughts? Is this something I should let go or file a NOD on?

[FormerMember]

You are asking us to take a shot at a running buck in Pennsylvania from Colorado. Without your c-file, none of us can make that pronouncement. Well, some of you will but none with any legal acumen. If you had clear and unmistakable evidence of Bronchitis in service in your SMRs and you had gotten a nexus letter saying the Bronchitis (asthma) you have now is the same as the illness/condition in service when you filed the original claim, then you could win your CUE. If you file CUE on a decision where you had no nexus of record, and later produce a diagnosis (with nexus) proving it now in 2014, it doesn't mean there was a CUE back then. Only if the nexus was part of the EOR (evidence of record) in the original filing, would it then be CUE. Refer to the two lists (3.309 and 3.307) and for the statute of limitations for the illness/injury/condition to manifest.

VA caught itself screwing up on chronicity for 50 years with Walker v. Shinseki (Fed. Cir.) Used to be, if you could prove chronicity ( continuing problem of something in service that still exists) you did not need a nexus That's 38 CFR 3.303(b). Unfortunately, 3.303(b) qualifies that by citing to 3.307. If it isn't on the list (or you manifested it after the presumptive period), then you have to have a nexus via 3.303(a). Lots of Vets are finding that out now. VA has simply erased a buttload of CUEs by reinterpreting, well, actually correctly interpreting what they wrote in 1961 on 3.303(b). Pretty slick, huh?

[SigBnSoldier]

You are asking us to take a shot at a running buck in Pennsylvania from Colorado. Without your c-file, none of us can make that pronouncement. Well, some of you will but none with any legal acumen. If you had clear and unmistakable evidence of Bronchitis in service in your SMRs and you had gotten a nexus letter saying the Bronchitis (asthma) you have now is the same as the illness/condition in service when you filed the original claim, then you could win your CUE. If you file CUE on a decision where you had no nexus of record, and later produce a diagnosis (with nexus) proving it now in 2014, it doesn't mean there was a CUE back then. Only if the nexus was part of the EOR (evidence of record) in the original filing, would it then be CUE. Refer to the two lists (3.309 and 3.307) and for the statute of limitations for the illness/injury/condition to manifest.

VA caught itself screwing up on chronicity for 50 years with Walker v. Shinseki (Fed. Cir.) Used to be, if you could prove chronicity ( continuing problem of something in service that still exists) you did not need a nexus That's 38 CFR 3.303(b). Unfortunately, 3.303(b) qualifies that by citing to 3.307. If it isn't on the list (or you manifested it after the presumptive period), then you have to have a nexus via 3.303(a). Lots of Vets are finding that out now. VA has simply erased a buttload of CUEs by reinterpreting, well, actually correctly interpreting what they wrote in 1961 on 3.303(b). Pretty slick, huh?

Thank you very much for the great info asknod.

If it's that cut and dried then no, my CUE should have been denied. There was no nexus in the record for the 2004 decision. I did not think I needed a nexus when there were 4 documented diagnosis of bronchitis in my SMR, and yet the rater at the time wrote a rating decision stating my SMR's were silent of any mention of Bronchitis.

I'm angry, and no, I'm not very objective, so I need people such as yourself from outside my situation to set me straight on whether I chase a pipe dream with this.

Still, it lingers in my mind, this denial is somewhat like a denial where a guy claims "wrist injury" and VA denies it and in their decision they tell him "SMR's are silent for wrist injury diagnosis, they show you were treated for amputation at the elbow, CLAIM DENIED!"

So, I suppose I close the books on this one. Although there's still the appeal I turned in asking for consideration of CFR 3.156 since when I got a copy of my claims file in 2012 I discovered all those in service diagnoses of Bronchitis in my records.

Edited December 3, 2014 by SigBnSoldier

[Guest]

The crazy one here,

First things first, getting A new medical diagnosis that corrects an earlier diagnosis ruled in a previous rating would not be considered an error in the previous adjudication of the claim. This is not grounds for a valid CUE.

Now this may sound crazy but you should contact VA to verify if you still have a pending appeal for your NOD. Going by your post it seems that this decision only addresses your claim for Clear and Unmistakable Error and not your NOD and VA did not combine the two claims.

Asknod is correct about 38 CFR 3.303(b), you have posted several post about having continuity so let see what VA is doing. You may want to review my original post in this thread, keep in mind that VA may challenge you and you may have to appeal to cavc.