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Applying the Law in Effect at the Time

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kevlarsamurai

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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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Here's a copy of part 4 -the VASRD. It changed very little for most diagnostic codes over the years. I use it for my old CUEs because it shows the older ratings criteria. As Berta mentioned, if you really want to be sure, use the BVA decisions from the early years (1992-?). I look for appeals for increases where they will list the criteria then in effect for the evaluation of the different levels of entitlement.

 

1964 VASRD-Ratings.pdf

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13 minutes ago, asknod said:

Here's a copy of part 4 -the VASRD. It changed very little for most diagnostic codes over the years. I use it for my old CUEs because it shows the older ratings criteria. As Berta mentioned, if you really want to be sure, use the BVA decisions from the early years (1992-?). I look for appeals for increases where they will list the criteria then in effect for the evaluation of the different levels of entitlement.

Greetings,

Thank you.  That is good stuff right there.  For my diagnostic code there was an Amendment in 1975 which could trip my theory.  But this was super helpful for determining the lack of Pulmonary Function testing in prior years as a means of rating.  Thank you very much.

I think there have been 3 changes to respiratory codes over my window.  1995-2018.  Some a little more liberal and others more strict.  I'll dig deeper in the BVA Decisions.

S/

K

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By operation of law ( and Kuzma which superseded Karnas), you are entitled to the ratings criteria in effect at the time of your rating. If the laws change to a more beneficial interpretation, you are entitled to switch to the higher one. Conversely, if they become more restrictive, you are entitled to keep the more beneficial one. The VA can never come back and reduce you based on a changed regulation. 

The VASRD I attached was the original one from 1945. Nothing in it changed until after the Vietnam War was over in 1975. 

I'll ask NOVA if they have a better record of Part IV that shows the interim changes from '45 to now. Every time we discover a loophole, they slam it shut with a newer ratings criteria. 

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3 hours ago, asknod said:

By operation of law ( and Kuzma which superseded Karnas), you are entitled to the ratings criteria in effect at the time of your rating. If the laws change to a more beneficial interpretation, you are entitled to switch to the higher one. Conversely, if they become more restrictive, you are entitled to keep the more beneficial one. The VA can never come back and reduce you based on a changed regulation. 

The VASRD I attached was the original one from 1945. Nothing in it changed until after the Vietnam War was over in 1975. 

I'll ask NOVA if they have a better record of Part IV that shows the interim changes from '45 to now. Every time we discover a loophole, they slam it shut with a newer ratings criteria. 

Greetings,

I never heard of NOVA... other than the mute girl in the original Planet of the Apes.  Thank you for that.  I know for a fact from my research respiratory had a change in 1975, 1996, and I want to say 2018(?) but I would have to check my notes.  I am just being obsessive at this point.  I got the general feeling during my hearing that the ALJ was in my favor and was agreeable... Reading his past decisions he has made a lot of veteran favorable stretches of the law.  I am confident... but also not stupid.

Thank you again.  I wish I could find all the VA Highlights on line.  That certainly had the cliff notes for the amendments in them.

S/

K

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1 hour ago, broncovet said:

"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.  

Greetings,

Apologies, I am having a devil of a time following the messages in this forum.  It's different than I am used to.  But thank you for the response.  I've had a bad run with VSO's.  Three different ones.  I maintain one as a representative only for the purpose of submitting paperwork and easily accessing VA decisions.  I'm not mad at them, but nobody cares more about your claim then you do.  All of this is solely on my own research of the legwork you folks have done.  My entire success is internet based via online forums.  Heard something in a forum, researched what they were talking about, applied it to my claim.

I remember the history behind the Well-grounded liberalization.  It seems it became a convenient means to catch up on back dated claims files.  That was part of my plan of attack for my CUE.  During the time of the transition to VCAA I had an open claim and never received a letter offering a relook at the NWG.  That was my secondary CUE strategy.  Fortunately, I was successful on the first.

I am all over the place here and I apologize.  Thank you for the assistance.

S/

K

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