30 year Old claim Approved-Justice At Last!

[VictorE]

I recently received notice from the BVA that my claim for benefits filed while on active duty in 1985 have been approved and that entitlement has been granted. I was injured in the line of duty and a Formal Medical Board determined that this injury to my spine caused me to be unfit for duty. I applied for my benefits while on active duty so that I would be taken care of from the day after my medical discharge. 4 weeks after my discharge the VA did a C&P Exam and 6 weeks after that I got a letter saying they denied my claim because my disability was congenital, being so frustrated with the medical board process, I walked away and did not appeal the decision, I know it was stupid to walk away but I was a 24 year old kid that had an attitude. 

I tried to reopen my claim in 1990 and 1999 but I didn't have any new and material evidence since all my medical records to support my request were in my file at the time the first decision was made so walked away again, without appealing the decision. In 2009 I applied to reopen my claim and this time I was granted a C&P. I want to make a point here to say that each time I tired reopen my claim I used a VSO to do so. I waited a year to get a C&P exam, the exam was a joke, it was conducted by a nurse who had just been through training and I was her first solo C&P exam. They must train them to make stuff up to deny a claim because she invented a denial saying that I must have had some form of childhood arthritis that caused my disability and that all my symptoms were from the childhood disease and not due to the injury to my spine that caused my medical discharge, she went on and listed all the different diagnosis that had been given to me while in service like, Spondylosis, Spondylothesis, facet syndrome, degenerative disc disease and myofascial pain syndrome. Her reasoning for this was that she noticed I had bilateral finger eversion and splotches on my lower legs, still today I have no idea of what made her say my pointing finger is bent, the splotches she described are sun spots, I am now 55 years old. I won't go into all the detail here but the BVA didn't believe it either. I do believe she committed a CUE here by not considering that nothing was wrong with me at my induction physical, meaning at the very least that if I had anything wrong with me that the disease worsened to the point that I was medically discharged and I should have been awarded entitlement.  

I filed a NOD shortly afterwards and then involved a VFW Regional Office Manager Ron Cherry to help me during the hearing, the hearing went well and the VFW rep and I left the VARO excited about the favorable comments made by the DRO. A year later I received notice that my NOD had been denied. 

I hired an attorney to help me because I was in no shape to fight on my own anymore, emotionally I was spent and I thought about just walking away from it all again, I couldn't though because I cannot work due to the pain and mental health issues I have, it was either keep fighting or roll over and die, I chose not to die and to continue to fight and correct this injustice.

My attorney was not very attentive to the amount of time it was taking for the VARO to move my claim to the BVA, I hired him in 2012 and by 2015 the BVA still did not have my claim on the docket. I contacted my Congressman Kevin Yoder, in May of 2015 and his representative Cheyne Worley got things moving fast, I am so grateful for his involvement, my claim had sat at the VARO for 3 years and within 2 weeks he got them to get it on the docket at the BVA. 

Around the first of July I got that elusive manila envelope from the BVA stating that they had awarded entitlement for the disabilities that I had first applied for the day after my separation in 1985. I cried that day. About 2 weeks after I got my approval letter I received a letter from the VARO Director saying that she was writing to me because the Obama Administration had requested a response to the correspondence they had received in regard to my claim. She stated that my claim had recently been approved by the BVA and I presume that a copy of this letter was also sent to the White House.

The BVA letter stated that no condition of the back or spine was noted at my induction into service, that documents from service show injuries to my spine in Jan 82 and again in Dec 1983. That I suffered from recurrent lower back pain and that ultimately I was discharged from service due to low back disability. It also states that the Medical Evaluation Board found that my disabilities were incurred in service and did not exist prior to service.  The BVA judge also said that the basis for the finding that my Spondylosis was a congenital disability is unclear and it may be based on a remark by one of the members of my 1985 Medical Board Hearing. The judge then states that it appears that not all of my service records were associated with my claims folder at the time of the denial of my claim in 1985.

In the BVA decision letter I was also granted entitlement for bilateral neurological disabilities of both legs, lumbar muscle atrophy, Major Depression Disorder and myofascial pain syndrome.

I want to say thank you to Berta and all of the other vet's who have commented and been supportive of me while I fought this fight. I first joined hadit in 2009 and I am so glad I did. I cannot state strong enough for my fellow vet's to not give up, sometimes it takes decades for justice to be accomplished but eventually it will as long as you keep fighting and not walk away frustrated by the VA's ineptness.

Based upon the statements made by the BVA judge I feel that I have a good case for being awarded an early effective date and probably a Clear Unmistakable Error decision.

I tried to find my BVA decision on line but couldn't locate it, if anyone can find it and paste a link to it I will greatly appreciate it. My BVA Docket number is 12-18 293 dated June 25 2015.

[Fat]

Wow............

That's great news.

You give me hope and it shows the system can work when evidence is considered.

Congrats...................

[Berta]

WOW! I remember your claim ...I couldnt find the case at BVA  either but it maybe will be posted there soon.

"Based upon the statements made by the BVA judge I feel that I have a good case for being awarded an early effective date and probably a Clear Unmistakable Error decision."

Yeah!!! Possible! Because as you know, NOTHING is impossible with the VA. We just have to stay on the paper  battlefield until we win the war of the words, that these claims actually are.......

BVA does post decisions a lot faster then they used to ,so I cant wait to read yours ! 

"The judge then states that it appears that not all of my service records were associated with my claims folder at the time of the denial of my claim in 1985."

Holy Moly!!!!! The only concern I have with that, is in those days [prior to VCAA )VA could deny as" not well grounded"

BUT , that statement from the judge indicates it SHOULD  have been well grounded in 1985!

BVA decisions hold CLUES.

Their clues ( meaning brief nuances to the decision) helped me get a local vet an award after he had been to the CAVC twice and continued to be denied.

One word in his BVA decision,overlooked by his lawyers and vet reps (and the vet himself) became the key to his award.

A BVA decision I received years ago held a clue for me.

A claim I had there for DIC had just been awarded at the RO level and I didnt advise the BVA of that,and didnt know I should  have withdrawn the appeal, so they either denied or rendered moot (I forget) the claim for DIC under a different theory.Bit in  their decision they stated that if I did eventually succeed in direct SC death of my husband, then my FTCA offset would have to be refunded to me.

About 13 years later I did succeed in the direct SC death claim, sent my RO their BVA statement highlighted in that decision and also I sent  the actual regulations the BVA meant by the offset refund. But it took a call from General Counsel to actually get them to stop ignoring this issue.And after that call and a fax I think, the check was in the mail.

BVA decisions contain a wealth of information. whether denials or awards.

If they involve a legal issue ,they can be used to support a legal position.

Victor, This is FABULOUS NEWS!!!!!! Congrats are sure due!!!!

 

 

 

[Buck52]

Congratulations VictorE

I hope you get everything your entitled too buddy

this gives other veterans hope  thanks for posting this.

 

................Buck

[Vync]

Congratulations! It's worth it to never give up!

[flores97]

Congratulations to you, VictorE, it is great news and you deserve every penny!  I highly respect you for continuing to fight for what you believed in, i dont know if i could have been as strong in your place, and thank you for posting, as everyone said, it gives other vets much needed hope.  God Bless you and your family.