Should I file a CUE or leave NOD in place?

[ADodge]

I have reposted this because originally I had posted it under someone else's question and I was asked to repost under a new topic.  Simply because I might get more answers and also there might be other VETs out there with a similar situation who could benefit from the advice given.

 I hope I am not repeating someone else's question.  This is not at all easy to understand.  So I'll just ask.  I was discharged in 1984 from the Navy.  I had married an active duty Navy enlisted and so my health care was still at the same base I was discharged from.  After 3 months post discharge the Doctor that was handling my health care suggested I file a claim for Asthma service connected.  Because when I joined the Service in 1980 I did not have Asthma but when I was discharged I was being treated for Asthma.  So I filed the Claim in December if 1984.  I was discharged the last day of March 1984.  And my discharge was honorable so no problem there.  The initial claim was that I filed was for Bronchial Asthma service connected. and it was denied in 1985. I didn't appeal it because back then I didn't know anything about appealing the denial and just figured that was it.  The denial stated THE EVIDENCE DOES NOT ESTABLISH SERVICE CONNECTION FOR THE FOLLOWING BRONCHIAL ASTHMA DUE TO ALLERGY.  Bronchial Asthma denied. (Funny that is what causes Asthma Allergies.  but god knows I grew up on a farm and never had any problems with allergies at least not so much as to cause me a problem with breathing.  And I had never been diagnosed with any allergies either before entering the service.)  Anyway time passed and I forgot all about this claim.  in 1997 I began receiving SSDI and part of my disability was the Asthma and by then I also had COPD.  More time passed and in 2014 the VSO in the town I live in suggested I file a claim with the VA for service connected disability for asthma. So I did.  And after again submitting to PFTs done by the VA I was approved at 60%.  Now I would never have questioned anything after that except that when I filed for the COPD and a few other items I was told that my representative was the DAV.  And I asked why was the DAV my representative and who in the DAV was.  And I was told told that back in 1984 I picked the DAV to represent me.  And I said "  I did???  Why would I do that?  and that response was "because you filed a claim back then.  That was when I thought SHIT I need to get a copy of all my records.  SO I finally did and that is when I learned and remember filing that claim.    So Here is my question.  Since Nothing except the severity of the Asthma has changed since 1984.  Would that initial claim be a CUE?   Wouldn't it be right to file a CUE regarding that claim so that the effective date of the current claim would date back to 1984?   Currently I have a NOD filed regarding the effective date.  But I really feel it is a CUE.  Is that right or not?    And if someone does answer this could you answer like you are explain this shit to a two year old!!!! LMAO  because All of this is just so Damn confusing to me!!!   

Thanks a lot,    

 

I was asked to scan and post some VA C&P reports and I will do that as soon as I get back from meeting with my Local Congressman.  I will keep you all in mind as I ask him about doing the back up of VET Appeals!!! And other Veteran topics!!! 

Aileen

 

SO this is what Bertha asked in response to my previous post of this Question:  

Did you or the rep specifically state "Due to Allergy" on the claim?

Do your SMRs reveal you did, in fact develop allergies in the military?

Can you scan and attach here their reasons and bases for the 1984 claim denial and the evidence they used?

Obviously, with the successful outcome of the 2014 claim for the asthma , the VA certainly considered your SMRs but it seems they missed something in the older denial....so maybe this would even by a 38 CFR 3.156 claim.

I know it is confusing but if we can see the older decision (and we might need the newer one too) we can determine whether there is cause for potentially more retro due to a better  EED.

Did the 2014 claim state the asthma was 'due to' allergies?

Cover C file number, name, address, prior to scanning and attaching it here.

I focused on the 'due to ' part because statements like that can lock us in to one theory of entitlement when other theories could be 'due to exposure to chemicals, via your MOS etc etc.

So Here is what I have but I also have this very strange 600 form that was placed in my medical record at the end of my in-active reserve time.  Notice the date Apr 8 86  See all the things it list that I am suppose to be allergic to.  Well if I had been allergic to all those things before I joined the Navy I would never have been able to join the Navy because I would have died as a child.  Considering I grew up on a Farm!!!!  I mean WTF who the hell is this Captain English and why is he putting this document in my Military medical record years after my discharge????  I don't understand!!!! This is way too screwy!!! 

Edited May 7, 2016 by ADodge
remov files

[ADodge]

So this is just grand.  I asked for a complete copy of ALL my records.  And I mean I covered all bases.  I stated in the request that I wanted a copy of everything the regional office had with my name and or Social security number on it.  Now of course this would be a copy of the recent decision which awarded me 60% for SC asthma.  I had a hard copy of it but am having a hard time locating it in all these paper files.  But that is why I have a computer (Right?) anyway.  I have to go into Boston and request a copy of that decision???  I mean honestly what else isn't on that computer CD???  SO I will also have to ask that person if there is anything else they have forgotten to give me a copy of???  I asked my DAV rep for a copy and that is what she told me to do!! Doesn't she have a copy of it?  Didn't they send a copy to the DAV because they have sent them copies of everything else!  Such as the last notice of denial for SC compensation claim I had filed.  I really get this feeling like my rep wants to do as little as possible in helping me???  Has anyone else ever had that type of experience with a DAV rep?  

So tomorrow before my appointment at the VA.  I will drop by the Regional Office and ask for a copy of that original decision.  And also ask if they will check and see if there are more files they have somehow forgotten to give me copies of!!!   Nothing like feeling I am pulling the teeth out of the mouth of an angry beast!!! 

[ADodge]

OK I think I have it all together now!!!!  Right WIth ADHD I could say that a million times a day and still be missing shit.  But Here goes The first file is the 1984  denial at least every thing I have received or that is contained in my records.  The last few pages are the start of the 2015 approval decision for the  SC Asthma  claim I filed in 2014.  The 2nd set of files is the end iof that claim and I just love what is said in that letter.  On page 4 of 8 the top paragraph last sentence!!!! I mean realy???  They had my records they could see that I filed a claim in 1984 the year I was discharged!!!!  WTF is this CRAP!!! I have to file a NOD because someone just doesn't want to acknowledge that I filed a claim the year I was discharged????  There by causing me to have to wait another 5 years or more!!!  Honestly there must be something else I can do???   

1984 VA claim pt 1.pdf         2015 VA claim pt 2.pdf  

[syne7]

You can file a CUE if you can identify the CUE.  For example, if it states asthma in your records and they say there was no evidence of asthma, that is CUE.  The CUE has to be more than, you disagree, it has to be a thing you can point to that everyone agrees is an error and it has to have changed the outcome.  How do you NOD a 1984 decision?  Was it an adjudicated claim that was opened and you lost and now you are filing a NOD? 

[syne7]

Just read your decisions.  If you did not provide any new evidence of service connection on this claim, I would suggest you might have CUE for EED.    Clearly a reasonable person disagreed with the previous decision.

You can only CUE one time.  This would like a CUE however, it might be iffy on what rating they would assign going back.  This might be worth having a representative/lawyer who can help you.

[ADodge]

What bothers me is the top paragraph of page 4 of 8 .   To Quote it states " The effective date of this grant is September 9, 2014.  Service connection has been established from the day VA received your claim.  When a claim of service connection is received more than one year after discharge from active duty, the effective date is the date VA received the claim."   SO What I gather from this statement is even thought it states that they had my file in front of them at the time this decision was made, they did NOT look through my file and see that I HAD PREVIOUSLY filed a claim for SC Asthma!!  And that  the previous claim was in fact filed the same year I was discharged from the Navy!!!  There was no new information to supply except for the fact that my condition had gotten worse over the years.  That is all that had changed.  My FEV-1 was a lot worse but the medication side of it was basically the same. ANd that is how it normally is with Asthma.  Some days the breathing tests can look good and some days they look real bad.  IN my case though by 1983 the Navy Doctor I was seeing while active duty was talking about Early COPD or some kind of restrictive lung disease.  But as I looked through my medical records I don't see any notes like that from him!!!  Why am I not surprised!!!!  I have gone though my records and what I have come to realize is that no matter what you are treated for while you are active duty, unless there is an undeniable diagnosis to be made it will not be listed in your medical record.  Such as the fact that I was diagnosed with endometriosis while I was active duty.  And it specifically states that I have endometriosis through no fault of my own!!! Get that!!! I didn't give myself or cause myself or no act of mine cause me to have endometriosis!!! Several times it states in my medical record that I have Asthma.  It does not state that I developed Asthma while I was in the service.  But that diagnosis suddenly shows up in my medical record right after I finished Seaman Apprentice training and reported for my first duty duty station.  I was then offered a medical discharge and said NO WAY!! I hadn't joined the Navy to get Asthma and be sent home.  I joined to become a Hospital Corpsman.and other things but well the best laid plans of men and mice right!!! SO every year that I couldn't complete the running part of my PT test I was given a medical waiver due to having Asthma.  Boy I'll tell you this really pisses me off and this is just Asthma.  I can most certainly sympathize with those Vets that have had to fight for Compensation for an illness or diagnosis of an illness that is so much worse!!!! 

I think I am going to go and have a talk with my Congressman about this BS.  Because as far as I see it that is all it is!!! Either someone was just too damn lazy to actually look at my record or someone just decided to make some quick decision thinking I would look any further into the matter.  This would have totally slipped by me if I hadn't been denied the PTSD Claim, Because once that happened I started to look for help with my claim and the eBenefits site kept listing that I had picked some Veterans organization back in 1984 to represent me in filing my Appeals???  And I was thinking why the hell would I do that???  Then the person I called from eBenefits said it was the DAV in Chicago.  And I started to think about it and slowly it all came back to me.  Now wouldn't that have been grand!!! 

I do have to say thank you to those on this site for educating me though about getting copies of my files and all the other VERY useful KNOWLEDGE I have gotten from this site.  You have all been invaluable to me!!!! I am so VERY GRATEFUL!!!!

Aileen  

[Guest]

NOD AND OR CUE CLAIMS BASED ON 38 CFR 3.156

3.156   New and material evidence.

(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

(c) Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.