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ADodge

From NOD, SOC, SSOC to Certified Appeal to BVA

Question

OK So I filed a NOD for an earlier effective date on the claim of my service related claim of Asthma.  I received a rating decision dated May 5, 2016, of established service connection for asthma from September 9. 2014. That was the date the VA received my claim.  This was a reopened claim.  Now they knew this.  I had forgotten that back in 1984 soon after I was discharged I had filed a claim for Bronchial Asthma and was denied in 1985.  I never appealed it, and there are far too many reason why to get into them at this point in time.  But this rating decision in May gave me 60% right after I had a C&P exam done.  I was rather surprised at the time how fast the claim was processed and approved which all the news about appeals and denials.  Before this approval reached me I was told to go on line and join ebenefits because it was the best way to communicate with the VA and if my claim was approve I would be able to enter my banking information thereby making it possible to receive my benefits electronically. 

I did join ebenefits eventually found out that back in 1984 I had filed an initial claim for Bronchial Asthma it was denied in 1985. I had also signed the form for the DAV to represent me back then.  SO this is where my claim starts to get really screwed up.  In September of 2014 of course the VA didn’t know I had previously filed a claim for SR Bronchial Asthma, however by the time I was sent for the C&P exam they did know.  Yet at that time they still were not referring to this claim as my reopened claim.  Whenever I spoke with anyone regarding this claim it was always as if it was a new claim.  It wasn’t referred to as a reopened claim until my memory was refreshed when they FINALLY decided to grant me the privilege (what was actually my right and I to have to demand) of providing me with a copy of all my military files!! And at that point the Gig was up!!! Whereas the individual at the Boston VA office when I finally got through to someone there told me I should speak with my representative (For several weeks I had left messages at a number which stated it was the DAV Boston) I told Nicole, who also happen to have been the person who had scheduled that HORRIBLE PTSD/MST C&P exam and so conveniently did not send or provide all the statements in support of my claim to the examiner.  (NICE? Huh?) Anyway she told me I should be speaking with the DAV.  I told her that I had been trying to reach them for several weeks, that I had left messages everyday but never got a call back.  Nicole said she would make sure someone from the DAV called me.  Funny how within an hour I did hear from the DAV.  (Found out the Boston DAV is not only in the same building but on one of the same floors of the Boston Veterans Administration.)  (Anyone thinking conflict of interest here??? Because that is what I have begun to think)

Anyway if I don’t watch it I will go off subject and never get out the questions I have.  So eventually I pushed for a 2nd PTSD C&P exam that was granted and in July I was awarded compensation at 100% which was a combined rating with the Asthma and the PTSD and the UE rating.  But I had also filed the NOD for a EED on the Asthma. 

SO here is my first question.  I know when I filed my NOD that I asked for a person to person hearing.  I remember that being a choice and one that I did mark off.  So I was rather curious why I wouln’d be granted one?  I got the SOC on my NOD around the same time as the approval came and I called the DAV representative because there was a problem with the SOC and her attitude was really shocking to me and it really pissed me off to.  I mean she got pissed at me because I asked if there was anyway to talk to the individual who had done the review and written up the SOC, because it was wrong!! At first she said don’t make waves that I should just let it be!??  But as I read it over again I was like NO WAY!!!  This is WRONG!! SO I called her back and out right asked about speaking to the reviewer or possibly his supervisor?  That is when she got all pissy with me!!! 

SO I sent her an email that basicly let her know that she hadn’t done any thing for me any way so what the hell I’ll come in to the Boston VA and ask to speak to someone there, myself.  She sent me an email back that basically indicated she was no longer going to represent me.  So I sent an email to the DAV main Boston Office asking them for the forms that I needed to get rid of them and find someone that actually wanted to represent me in this matter.  I ended up getting an email from the 2nd in charge who said they were still my reps and that he would handle my case. 

Sounds good right??? NOPE it’s not.  He is every bit as evasive as the last person was. 

The only reason the Boston VA issues a SSOC is because when it seemed after I was approved for the 100 percent the local VA was Fing with my case and no mater how many forms I gave them they kept pushing back the date that they would settle and send out the notification letter then start at least paying me the 100% monthly amount. The first date was the end of June then July some time, then the end of July then August, until it got moved all the way back to January 2017.  So I had enough and wrote an email to Secretary McDonald.  And believe it or not I got a response back from so one in Washington out of his office who said someone would contact me.  A week later the 2nd in charge of the Boston VA called me and we had a long talk.  He got the problem with the benefit taken care of like he said he would and I got the retroactive and pay by July.  He also said he would talk to the people in the review office about what I saw as an error and he would have them take care of it. 

Unfortunately he was transferred before they took care of the whole issue so only part of that was taken care of.  Hence the SSOC was issued.  But it was issued on the same date that my appeal was certified and sent to the BVA. 

So my 2nd question I have is this.

Does anyone know if my case could have been settled on a local level had I not filed the Form 9 if I have officially reopened the case instead of continuing on with what appears to be a new case filed in 2014?

 

And my 3rd Question is, what exactly is a medical Nexus???   See I thought that was a connection between the in service condition and the current disability??? 

So below is a statement made by the VA Doctor who performed the last C&P exam that was requested by the individual who did the review and this Doctor I believe absolutely creates this so called Nexus!!  SO if he has why didn’t they settle it and why would they deny their own Nexus??? 

Oh and part of this is the problem I found where there is a typo that the person who transcribed the Doctors notes left out ONE word in a sentence.  However it is a vital word for the sentence and the whole paragraph to make sense.  To date it still is NOT fixed!!!  Tell me if you catch it.  The word that is left out is “NOT”.   

SO the following is the VA doctors report PLEASE give an opinion or suggestion!!  I think I am about to go MAD!!! :blink:

Aileen M Dodge

 

  

 ACE and Evidence Review

    -----------------------

    Indicate method used to obtain medical information to complete this document:

      [X] Review of available records (without in-person or video telehealth examination) using the Acceptable Clinical Evidence (ACE) process because the existing medical evidence provided sufficient information on which to prepare the DBQ and such an examination will likely provide no additional         relevant evidence.

    Evidence Review

    Evidence reviewed (check all that apply):

    [X] VA e-folder (VBMS or Virtual VA)

    MEDICAL OPINION SUMMARY

    RESTATEMENT OF REQUESTED OPINION:

a.       Opinion from general remarks:   Active duty service dates:   

    Branch: Navy

    EOD: 03/30/1980

    RAD: 03/30/1984

    Branch: Marine Corps

    EOD: 03/07/1978

    RAD: 03/24/1978

    OPINION: Direct service connection

    Does the Veteran have a diagnosis of   (a) asthma that is at least as likely as not (50 percent or greater probability) incurred in or caused by (the) respiratory complaints during service?

    POTENTIALLY RELEVANT EVIDENCE:

    Tab TAB A (Veteran's statement in VBMS): Veteran's application for service connection dated 09/09/2014

    Tab TAB E (STRs in VBMS): service treatment records show respiratory complaints to include bronchitis and asthma dated 01/16/2015

    Tab TAB B (Outpatient treatment records in VBMS): VA respiratory DBQ dated   04/18/2015

    Tab TABS F-K (Private treatment record in VBMS): Multiple records from

    Beverly Hospital showing treatment for respiratory condition dated 04/25/2015

    Tab TAB C (Outpatient treatment records in VBMS): VA pulmonary function test  dated 05/04/2015

    Tab TAB D (Veteran's statement in VBMS): Veteran's statement dated 06/10/2016

    b. Indicate type of exam for which opinion has been requested: respiratory

    TYPE OF MEDICAL OPINION PROVIDED: [ MEDICAL OPINION FOR DIRECT SERVICE

    CONNECTION ]

    a. The condition claimed was at least as likely as not (50% or greater  probability) incurred in or caused by the claimed in-service injury, event or illness.  

    c. Rationale: I have reviewed all relevant documentation in the claims file, with particular attention to the documents cited in the 2507 and tabbed. The  period of service that seems relevant to this opinion is that of the  veteran's second enlistment, from 1980 to 1984. Her enlistment examination dated 11JAN1980 makes no note of respiratory disease. In her separation examination dated 20MAR1984, veteran reports having asthma and shortness of breath.  In the interval, the veteran compiled a substantial record of  respiaratory signs and symptoms, beginning May 1980 and intensifying during     June 1980. She was variously given diagnoses of asthma or bronchitis, and treated for both. Wheezing was heard on physical examination more than once.

Chest radiographs were non-diagnostic, and were normal at time of separation.

    Pulmonary function testing was abnormal as early as 06/26/1980, with marked  reductions of FEV1 and peak flow, both minimally responsive or unresponsive  to inhaled bronchodilator. By 2013, her pulmonary function had deteriorated  even farther, and chest imaging showed transient ground-glass opacities.  Pulmonary function testing at VA Boston in 2015 showed additional  deterioration, with no response to inhaled bronchodilator (I cannot determine  whether she was already maximally bronchodilated from medication).

    This veteran has a pulmonary disorder characterized by asthma-like symptoms and by moderately severe airflow limitation with inconsistent response to  bronchodilator. The correct diagnosis may not be asthma, but as a working  diagnosis asthma is adequate. It is clear that the veteran's condition began shortly after her re-enlistment in 1980, and has worsened since then. The condition was noted on her entrance examination. In my opinion, this veteran  has asthma or a similar chronic respiratory disorder that more likely than not was incurred in her military service from 1980 to 1984.

    *************************************************************************

 

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I will try answer question# 1 and # 2

I think #1 is that you are trying to get a better EED for the asthma.

 "I received a rating decision dated May 5, 2016, of established service connection for asthma from September 9. 2014. That was the date the VA received my claim.  This was a reopened claim.  Now they knew this.  I had forgotten that back in 1984 soon after I was discharged I had filed a claim for Bronchial Asthma and was denied in 1985. I never appealed it, and there are far too many reason why to get into them at this point in time."

Sure they knew it, the denial is in your C file, but that had nothing to do with the re-opened claim. 

The only way you can  a better EED is with a successful CUE claim...CUE claims are explained in detail here in our CUE forum.

"Does anyone know if my case could have been settled on a local level had I not filed the Form 9 if I have officially reopened the case instead of continuing on with what appears to be a new case filed in 2014?"

A Re-open goes back to the date the re-opened claim was filed.

When a specific disability claim is denied, and then subsequently down the road the very same disability is SCed, there is always obvious potential for a successful CUE....depending on the past denied decision,and  the evidence they had when they made that decision....and many other factors ....all in our CUE forum. Many vets have gotten Mega retro that way ( as posted in the CUE forum) but it all depends on many factors.

Others will help with question # 3

 

Edited by Berta

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Thanks Berta You have really been a great help to me in this endeavor!!!  I really am stuck on this NEXUS thing simply because I just don't see how they don't see the SO called NEXUS.  Since definition of a NEXUS is as follows:  "the means of connection between things linked in series". and though that terminology is so typically specialized Military Jargon in other words it is just plain outright Gobbledigook!!  To write that in plain English it means the action connecting everything together proving that the current problem or disability is a continuation of the service related issue.  So given that being the definition of a NEXUS.  The last Doctor who did the C&P exam during the DOR review makes the NEXUS very clear in his review of the record.  

Since the Nexus is proven by that Doctor wouldn't the Local VA have to settle the case on that bases? I mean isn't that why that do the review before they issue the SOC?   

And the DAV is suppose to be representing me and they are of no help at all so i am not looking at hiring a lawyer.  I am NOT gong to loose this because the DAV happens to be in my opinion very incompetent!!!  

Anyway thanks for all your input you posted a link back in the summer that really helped a lot in what I wrote to the BVA in support of my EED.  I can't thank you enough for that link. 

 

Aileen Dodge

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"Since the Nexus is proven by that Doctor wouldn't the Local VA have to settle the case on that bases? I mean isn't that why that do the review before they issue the SOC?"   

Yes, I agree with that and also  that the C & P exam fully established your nexus......

but half of these RO people seem to be illiterate or too lazy to do this stuff right.:unsure:

Hadit should be the VA training program for raters. They would learn SO MUCH.

 

 

 

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Well I found my dependent spouse medical records and have sent for them.  Now I don't know if anyone else on this site has had a problem locating medical records such as these and if you have I will post the address of where those records are if the are in fact archived military medical records!!!  Seems everyone involved in my case absolutely had NO IDEA  where to locate those types of records and suggested i contact the original base.  And when I said that base and command no longer exists, take a guess at that response?  Shrugged shoulders!!! Yup No help at all.  Just kind of a Too bad guess you can't use those VERY IMPORTANT MEDICAL RECORDS!!  And they were in the same place as my Military service and medical records were!!  The National Personnel Records Center, Military Personnel Records. In ST Louis MO.  

NO Your kidding!!!!  

So here is the address if anyone needs those Medical Records.  You can contact them by this phone number they will email you the form that has to be filled out and sent.  The number is 314-801-0800 just listen to the prompts.  Once you get the form it will have this address on it.  

National Personnel Records Center
Military Personnel Records
1 Archives Drive
St. Louis, MO 63138-1002

Well I do hope this information helps someone!!!!

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