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kevlarsamurai

Applying the Law in Effect at the Time

Question

Greetings,

My remand is going back to the board after a partial grant.  I have some questions please.

First being, where on line can I view the actual text of the amendments to Title 38? 

I have a unique scenario... unique to me anyways.  The title was amended with regard to my diagnostic code in 1975 and 1996.  My CUE was granted by the RO as service connected back to 1995.  But they used the rating criteria (I think) in effect for 2018.  In 1975, it looks like there was a change to the schedule of rating and another in 1996.  The one in 1996 is based on Pulmonary Functions Tests for rating where as it looks like in 1975 it was symptoms/exacerbations/etc.  But I can't find the verbiage.

Second being, which rules would apply?  The original decision was made just before the 1996 rules went into effect.  But now that it is a CUE... I am unclear.

Third... Do I need to modify my appeal to reflect the CUE decision?  I know the BVA is composed of pretty smart folks, but I also know that my appeal needs to be clear and concise.

My problem is that I have no PFT's on record and it wasn't the standard back then either.  I was granted a partial EED to the earlier PFT.  Thanks for any assistance.

S/

K

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"Liberalization" of regulations is ONE way you can get an earlier effective date.  Its mentioned in "Common Effective Date Errors", published by NVLSP a few years ago.  Apparently, since the MOPH is essentially "shutting down" this valuable guide for Vets on effective dates seemed to have disappeared online.  

While this publication is a bit out of date, and a more recent VBM will show the updates, many Vets, including myself can not afford the 200 bucks or so for the VBM.  Your VSO or representative "may" have a copy of the VBM.  My older copy has about 4o some pages on effective dates, the newer version could have double that just on effective dates.  

As Alex pointed out, you "should" get the BOD of whichever regulation is more favorable to the Veteran...the "old" law, or the "new" law.  "Liberalization" suggests that the law became easier.   One huge example of liberalization is that claimants no longer need to demonstrate their claim is "well grounded".  

Many a vet has been denied because their claim was "not well grounded".  That was a pretty onerous problem to overcome in appeals.  

The "well grounded" issue has been replaced by the Caluza elements.  If you have documetation of all 3 of these, then you need not be concerned with your claim being "well grounded".  The elimination of "not well grounded" was a massive liberalization law.  

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If you are remanded, I dont see how you can raise a CUE with the BVA at this point-unless they made a CUE in the remand...

This is the VA Schedule of ratings, the diagnostic codes etc are about half way down the scrollbar-

https://www.ecfr.gov/cgi-bin/text-idx?SID=d6ea1b96ab8aaf3a64646c8f1af44e72&mc=true&node=se38.1.4_1118&rgn=div8

. " My CUE was granted by the RO as service connected back to 1995." Good for you!

"  But they used the rating criteria (I think) in effect for 2018. " You can check the ratings for the Diagnostic code at the above link.

"In 1975, it looks like there was a change to the schedule of rating and another in 1996"

What Diagnostic code are you looking for, as to past changes?

The BVA might help- under their search feature:

https://www.index.va.gov/search/va/bva.jsp

It only goes back to 1994 but if you search there under 1994,1995,1996 under the disability and Diagnostic code you might find info to help.

For example this is a very old BVA decision-(some of them do involve claims further back than 1994)

The decision reflects the changes in the ratings for the disability this vet had:

" veteran's tinnitus is rated under Diagnostic Code 6260. The RO rated the disorder as noncompensably disabling effective from October 10, 1995, and as 10 percent disabling effective from April 26, 1999. During the pendency of this appeal, regulatory changes amended the portion of the VA Schedule for Rating Disabilities pertaining to the ears. This amendment was effective June 10, 1999. See 64 Fed. Reg. 25202 through 25210 (May 11, 1999). When a law or regulation changes after a claim has been submitted, but before the administrative or judicial appeal process had been concluded, the law most favorable to the plaintiff must be applied. See Karnas v. Derwinski, 1 Vet. App. 308 (1991).

https://www.va.gov/vetapp00/files4/0031024.txt

Have you told us in other posts what the disability is and what the diagnostic code is and was in the older decision?

To claim CUE you will need to have the date of the older deision and also the rating sheet they sent with the decision.

Also you could search at the BVA for Karnas v Derwinski under your disability- as there could be more there to help you.

 

 

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1 hour ago, Berta said:

If you are remanded, I dont see how you can raise a CUE with the BVA at this point-unless they made a CUE in the remand...

What Diagnostic code are you looking for, as to past changes?

Have you told us in other posts what the disability is and what the diagnostic code is and was in the older decision?

To claim CUE you will need to have the date of the older deision and also the rating sheet they sent with the decision.

Also you could search at the BVA for Karnas v Derwinski under your disability- as there could be more there to help you.

 

 

Greetings,

I am not sure how to multi-quote so I will do the best I can.

My appeal was on the basis of a CUE in an earlier decision and seeking an EED for COPD.    The BVA remanded it back to the RO to address the CUE first and then return.  The RO granted the CUE and gave a partial EED.  In 1996 the code was (9899) Pneumonia (Chronic Lung Abscesses) and it was found NWG.  Last month they reversed and granted the service connection changing the code to (6824) at the 0% rate.  My COPD (6604) was given the EED based on the granted CUE.  I have no CUE with the BVA decision... they have not made one yet, technically.  Let me try this:

19950523 Filed Claim for Pneumonia and Lung Abscesses

19960411 Rating Decision (9899) Pneumonia, NWG Not Service connected

20101013 Rating Decision 100% for (6604) COPD (because of the Nexus between the Lung Abscesses)

20121007 Filed NOD based on CUE in 1996 decision (same medical evidence) and an EED on the COPD

20150327 BVA Remand to address CUE but made no decision yet.

20181108 RO grants CUE and partial EED.  Gives CUE 0% for Lung abscesses... No CUE on COPD, but gives EED to earliest PFT on record (does not make COPD secondary to Lung Abscesses.)

I did use the board's decisions website to do the research.  That is how I learned of the amendments in 1975 and 1996 to the respiratory section. I did find where an asthma rating the board had to use 3 different years amendments to give three different staggered ratings on a CUE.  As we know, a CUE has to be worked with the evidence of the time and the law at the time... at least that is my interpretation.  In 1996 they started using PFT's to rate.  I have a very small window.

Thank you for your reply.  I hope this clears things up.  I was just looking to see if anyone knew of access to the Highlights or older versions of the law.

S/

K

 

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"  As we know, a CUE has to be worked with the evidence of the time and the law at the time... at least that is my interpretation" That is correct- but a CUE rests on established medical evidence that warrants a manifested outcome-

meaning the cued decision has to involve a rating of at least 10% in the decision being cued- or, that the medical evidence VA had  in their possession  at time of the alledged CUE warranted at least a 10% rating.

If there was no medical evidence to warrant a higher rating than "0" %, then there was no manifested detriment outcome to the claimant- because there was no $$$ compensation involved.

If the VA was in possession of medical evidence that would have established at least a 10% rating, but failed to consider it, that is a violation of 38 CFR 4.6, and a valid CUE claim. That is my favorite regulation, because VA over the past 2 decades has ignored my most probative evidence many times.

 

4.6  Evaluation of evidence.

 

            The element of the weight to be accorded the character of the veteran’s service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. (38 CFR 4.6)

 

 

 

 

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2 hours ago, Berta said:

"  As we know, a CUE has to be worked with the evidence of the time and the law at the time... at least that is my interpretation" That is correct- but a CUE rests on established medical evidence that warrants a manifested outcome-

meaning the cued decision has to involve a rating of at least 10% in the decision being cued- or, that the medical evidence VA had  in their possession  at time of the alledged CUE warranted at least a 10% rating.

If there was no medical evidence to warrant a higher rating than "0" %, then there was no manifested detriment outcome to the claimant- because there was no $$$ compensation involved.

If the VA was in possession of medical evidence that would have established at least a 10% rating, but failed to consider it, that is a violation of 38 CFR 4.6, and a valid CUE claim. That is my favorite regulation, because VA over the past 2 decades has ignored my most probative evidence many times.

 

Greetings,

Now that is interesting.  The outcome was (6824) service connection and a 0% rating in lieu of a Not Well Grounded rating and no service connection.  Financially, it created an earlier effective date on the (6604) COPD.  My thoughts were that this would be pyramiding.  Please keep in mind that none of what I have posted is speculating an outcome... it is the outcome, so far.  I did receive a partial grant on an admitted CUE at the RO level on a remanded appeal.  

Respiratory issues seem so simple, but they are completely confusing. This is why I am trying to get access to the 1975 amendments to title 38.  Because my theory is, they should have rated the 6824 based on symptoms and not looking for PFT's.  PFT's were added to title 38 in 1996.  The biggest problem is that COPD is all over the respiratory spectrum.  It covers emphysema, chronic bronchitis, bronchiectasis, asthma, etc.  All of which are individually ratable in the SOR.  My COPD has components of three of those.  It's just a doctor chose to call it COPD.

This was the RO's decision:

1. The decision to deny service connection for chronic lung abscess, right lobe (also claimed as pneumonia) was clearly and unmistakably erroneous; therefore, service connection is established with an evaluation of 0 percent effective May 24, 1995.
2. Entitlement to an earlier effective date for chronic obstructive pulmonary disease (COPD) is granted and a retroactive increased evaluation to 100 percent disabling is established from September 4, 2009.

Keeping in mind that this is two separate entries on my ebennies disabilities list.  Not secondary.  Thank you for taking the time to assist me.  It is appreciated.  Much of my CUE information has come from your past posts.

S/

K

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