Earlier Effective Date-Confused

[Jimmer]

Hi Everyone,  I want to thank all for your support and great advice that you have provided.  It has certainly helped me!   I had been on the "hamster wheel", until I came here.  I have a question pertaining to a E.E,D.  My situation may be a little unusual but hear goes:  I have been working with a VSO and she has been pretty good, but know I get the feeling she thinks I am "reaching" and trying to "milk" the system, which I am not!   My situation involves, I was discharged from the Marines, April 15, 1969.  I filed a claim pertaining to my eyes in November 1969, received a denial April 24, 1970.  I filed again in 1978, denied, 1987, denied, finally in 2007, I started using a VSO, and later found this site.  I had a BVA hearing in 2013, and I was awarded compensation on the eye at 10%.  Now, I was discharged from the Marines, because of an accident that happened, that effected my eyes.  This is all in my SMR, and I was sent to Balboa naval Station Hospital, where they told me I was going to be discharged because of the incident.  The VA maintained that I was discharged because of being nearsighted.  I have the records of the entry physical in which I was deemed fir for the Marines, passed the eyesight tests and was told my vision was "normal".  The VA fought me on this all they way to the BVA hearing.   My 10% disability was granted based on some notes the VA had.  I then had a VA C&P exam, and was increased to 60%, then they CUE"D themselves and raised it to 80%.  I now found out I basically have no sight in the left eye.   I do feel that the 1970 date should be the date of the E.E>D.  I also feel that the VA established via exam that I was at 60%, and I feel I should have that from the day the BVA approved my claim.  Am I wrong?   As I said I feel that the VSO thinks I am being "greedy" without saying in actual words.  At the Hospital, I remember the  eye doctor giving me his card and saying "you need to get my notes, because if you ever file a disability claim", you will have a battle on your hands".  I did get his info, and kept it.    Thanks again for all your help.

[broncovet]

I (was once) a patient in Balboa Hospital, in about 1971, also, from an in service injury.  

If I would have listened to my VSO, he suggested not appealing a zero percent rating.  I "watered down" the nod and said "I did not think the rating was FAIR", instead of a disagreement based on the VSO comment. 

When all is said and done, maybe by next year, I can figure out how much this VSO advice cost me.  I am hoping the amount will be zero, but, I wound up fighting for my benefits for 17 years instead, at a minumum.  

The VSO said my rating could be reduced if I file an appeal.  (How can they reduce 0 percent, was my thinking?)  Still, the VSO seemed nice and knowledgeable, so I went against his advice only partly, as I mentioned.  That 2004 NOD, if I had made it a real nod instead of "I dont think this rating is fair", would have eliminated a grey area, and saved me decades of appeals.  

[Buck52]

Broncovet

I never used a VSO but I have Appeal a 0% rating and won.  with an Great  IMO  from a specialist.

We never know what they will do,(Raters)  guess what happen to one of my veterans I am helping on his claim, he was denied lack of evidence, the problem was he used a printer that copied on the back side of the pages  and when the rater read up on his evidence  he never turn the page over to read the most crucial part of his evidence ..were working on this now in his NOD. Grrrrr

Edited May 27, 2019 by Buck52

[Berta]

To add to my last reply here- if you can prove that when they made the "0" NSC decision, in 1970, that they had evidence that would have warranted at least 10% then, in their possession when they made the decision, that would be a valid CUE under 38 CFR 4.6, meaning the evidence they had -should have warranted  at least at 10% per the VA rating schedule in place at time of that decision.

Unfortunately in those days we had no VCAA ( the 5103 waiver now) and vets were often in the dark as to what medical evidence they needed to support their claims.

What was the Diagnostic code they used in the 1970 claim for the "0" NSC?

 

 

[Berta]

There are many CUes at the BVA that were over a "0" rating.

I assume this vet was given a "0" NSC rating for hearing loss:

"FINDINGS OF FACT The RO committed CUE in its September 1971 rating decision in denying entitlement to service connection for hearing loss, because the law required that the Veteran's hearing acuity be presumed to have been normal at enlistment into service, and the evidence of record at that time did not clearly and unmistakably establish that the Veteran had a pre-existing hearing loss at entry into service. CONCLUSION OF LAW The September 1971 RO rating decision that denied entitlement to service connection for hearing loss contained clear and unmistakable error. 38 U.S.C.A. §§ 5109A, 7105 (West 2002); 38 C.F.R. § 3.105(a) (2010)."

https://www.va.gov/vetapp11/files2/1112918.txt

 

[Jimmer]

Hi Ms. Berta,  The VA stated that I was discharged from the Marines "for disability which pre-existed service and was not aggravated by service".   This is pure BS.  I have the medical evidence that upon induction into the Marines I was "fit" for duty and my eyesight was normal.  Upon my BVA hearing the judge "shot down" the VA claim , saying  "the board finds that it should resolve all doubt in favor of the veteran, and the service connection is therefore warranted for residuals of the left eye".  The VA also has proof,  and the BVA judge mention that I was sent to Balboa Naval Hospital as a result of a incident and  had "pain below my left eye, shooting back thru the socket, to the back of my head".   But yet until the BVA hearing they maintain I was discharged because of prior poor eyesight.  It seems to me they violated the "Presumption of Soundness, among other things.