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Army Veteran 2008

Question

In 2010 while I was on active duty training I was hospitalized for a month. For walking-pneumonia, pneumothorax, hemothorax ,decortication and thoracotomy. I had 3 major surgeries in 48 hours, 2 blood transfusion, placed in a chemically induced coma and placed on a ventilator and life support. I spent two weeks in ICU. While recovering I had to re-learn how to eat, talk and walk. I some how turned into a vegetable. With this being the first time I've every had to go to the hospital I was traumatized by the visit. At the time I was 19. Since this was ADT, and not AD a LOD was done and found "NOT IN THE LINE OF DUTY." "NOT DUE TO OWN MISCONDUCT." Because I was receiving treatment before going on active duty. I was doing Honor Guard for deceased veterans. When the funding became available I was placed on an ADT status. 

6 months after this incident I was deployed to Afghanistan. While there I was always short of breath. I continually coughed of blood and phlegm. I was medevac to a larger base that had better medical equipment to find what was wrong with me. I was diagnosed with bronchitis and given an antibiotic. It felt like I could never breath in enough oxygen. I stayed at a FOB that was in the middle of a village. Every couple of days the would dump human waste in the holes the locals dug and burn it along with other chemicals and material.

I have been filling for asthma since I returned home from Afghanistan. At the C&P exam I did when I first filled back in 2011, the decision letter stated "The provider referred to a period of inactive duty."  Service connect was denied. Which was a true state, but the provider never mention any of the incidents I had while on active duty in Afghanistan. With that a CUE claim has been filed and I now had another C&P exam coming up. I had PFT test done then and I had one done today. My question is which one will they use, and what if i run in to the same situation at the C&P exam. I have been on an albuterol inhaler since Ive been back I still continue to cough up phlegm and i constantly get respiratory infections. Im still always short of breath to where it affects my daily activates. It has gotten to the point where I become depressed because I'm not able to have fun with my two boys, as any father would and having to explain to them why I can't  run or why I can't wrestle with them is heartbreaking. Any advice would be helpful!

 

Respectfully,

Army Veteran 2008

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Sorry about the confusion. I am going to stay in this forum. I posted the wording of the CUE claim on this forum. I do not have a scanner. 

 

The CUE claim has not been denied. It is still active. asthma and costrochondritis are in an appeal. They have been denied along with the conditions that are now in the CUE process. The conditions in both processes have been reopened twice and denied twice. This time around I did CUE for someone of the conditions and appealed the others. Before the CUE and Appeal I filed a NOD but with drew it because a VSO wanted to help. So I figured they would be more helpful dealing with this situation. Instead once I joined their organization and paid annual membership fees I never heard anything back from the VSO helping me.

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I suggest strongly AGAIN here that anyone attempting CUE, to review the actual CUE regulations ( 38 USC 5109A) and go over our CUE forum here carefully --lots in it..

One CUE they committed, as I stated before, in my opinion is 38 CFR 4.6 et al, specifically the 4.6 part,regarding the 'active duty ' period.

Without reading the actual denied decision for the CUE potential , however,  this is just a guess.

"The CUE reads,  I am making a CUE ("clear unmissable error") claims for asthma, costrochondritis, pneumothorax, decortication, hemothorax and the thoracotomy. The VA committed legal error when it denied these claims on August 2013."

"The VA's 2013 denials do not mention my service on active duty in 2011."

If that omission was Probative to your claim in 2013, that is a CUE under 38 CFR 4.6...as I posted here before.

Is that CUE still pending?

Again I suggest to all out there who want to file CUE....READ the CUE info in the CUE forum...

Some vets dont know what a CUE is but think VA committed CUE  and that wont do it......other vets here know there is a CUE basis and are willing to clearly define the legal error to the VA.

This claims ( there are CUE templates here) MUST be carefully worded and satisfy the 3 prongs of CUE:

1. Clearly identified Legal error (s) in past decision (whether denial or  award) use 38 CFR, or 38 USC, or both and also you can add any M21-1MR citations they failed to apply,as well as any VA OGC Pres Op or any CAVC precedent decision.

The specific Legal Error from 38 CFR or USC is really all you need,for most CUEs, but it pays to add icing to the CUE cake when possible.

2.The legal error cost you a proper retro amount ( the manifested altered outcome)

3. the medical evidence at time of the alleged CUE was in VA's possession at that time.

Meaning they had your SMRs, to include your discharge certificate any IMO/IMES, results of all C & P exams, and anything else (like a SSDI award) etc etc etc ,all VA and or treatment records, etc.

# 3 is like the Watergate question:

'what did they know and when did they know it'

Army veteran 2008 -If you typed here that is exactly how the CUE was worded and it is still pending, they might review the decision and agree........I say Might, because I don't think it clearly defines the obvious error they made. It makes sense what you wrote, but VA does not use common sense.

I have seen multiple BVA denials of CUE solely because the legal error was not specified.In that case the veteran usually was given the opportunity to file a new CUE, and BVA would say they were not prejudiced by the older denied CUE. That is nice, it gives them their rights, however another CUE could take many more years.

Do you have a vet rep?

Others will chime in. Everything I know about CUE is in our CUE forum already

 

 

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Actually it might be OK as it is....I went back to my 2004 heart disease CUE and basically all I stated was:

"This is a claim of Clear and Unmistakable Error under auspices of 38 USC 5109A
The veteran’s undiagnosed and untreated heart disease had been established in multiple VA medical records as well as at VA Office of General Counsel , for my FTCA case, and at VA Central Office and their findings were sent to the Buffalo VARO by me, via priority mail ,prior to this decision and were ignored.

The legal error to my detriment as the surviving spouse was that no rating or acknowledgement whatsoever for made on the 1998 rating sheet for Rod’s heart disease.,yet the award letter clearly states it was one of “multiple deviations from a usual standard of care and all of these deviations hastened the veteran’s death.”"

But they (Buffalo VARO) denied it right away so I  rebutted with this: (I had filed a few months after the change date)---I sent them the exact excerpt from M21-1MR Part IV.   Paragraph 309

This claim was due to  CUE they had made in 1998, 4 years after my husband's death, but he had claims pending in his lifetime to include 1151 heart disease that I continued after his death.

I forgot all about this M21 statement below . It clearly says even if the condition was Not formally claimed,that any 'chronic disabilities found in the service records, "Even if they were not claimed", for consideration when they prepare the rating decision.

This might help you a lot to support the CUE you filed.As far as I know this has not been changed since 2004 but it pays to double check anything one uses from M21-1MR,which is googable and also I believe a link is here to a recent version.

"M21-1, Part VI         March 19, 2004
Change 113 
      Rescission:  Changes 106 and 108. 

3.09  ISSUE 
      a.  General.  Clearly state all issues of entitlement identified by the claimant, or those which can be reasonably inferred from the facts or circumstances of the claim.  If there is more than one issue, list the issues by number.  In RBA, the issues appear under the identifier “ISSUE.”  In RBA 2000, the issues appear under the identifier “DECISION.” 
      b.  Compensation Ratings.  Consider all claimed disabilities in the rating decision.  Also consider all chronic disabilities found in the service records even if they were not claimed.  This is to be done on the original rating, or subsequently in cases where additional service medical records are received following an initial rating decision.  Do not consider any of the following conditions unless specifically claimed: 
      (1)  Acute and transitory disorders without residual disability; 
      (2)  Noncompensable residual disability from venereal disease; 
      (3)  Disabilities noted only on an induction examination, or disorders recorded by history only; 
      (4)  Disabilities found by authorization not to have been incurred "in line of duty" (see pt. IV, par. 11.03); and 
      (5)  Clinical findings such as cholesterol or blood sugar levels that are not generally recognized as "disabilities" or subject to service connection. "


I hope others here however, will opine on this situation you have.

Most of us advocates here are up to speed on CUE I think...or should be,....

Edited by Berta
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