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Confusing Rating Decision From 1990

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ljl

Question

Being involved with trying to get an earlier effective date for a claim I filed within one year of separation, I was going over my c-file with a fine tooth comb. When I looked at my Rating Decision, I got very confused. In the Narrative section the first line says "Original", the second line says " SC for left knee injury and obsessive-compulsive neurosis with depression and anxiety. ". Then it lists the evidence and proceeds to debunk or put forth reasons I don't qualify for the conditions listed as SC along with some other conditions in my claim. I'm so confused! 

 Did they service connect me in one section then un-service connect me later on in the narrative?

 Here's the actual text under the Narrative section with some personal stuff blanked out. I've underlined the SC part and the blanked out parts don't have anything to do with the SC conditions listed. Could the SC line only be a reiteration of parts of what I was claiming or is it a statement of service connection for those conditions? If there's a contradiction, should I get the benefit of the doubt?

23. NARRATIVE 
J. Original claim. 
I. SC for left knee injury and obsessive-compulsive neurosis with depression and anxiety. 
E. SMR’s, January, 82, to January, 90. DVA exam, 5/8/90, and 6/5/90, VANC, Loma Linda. Medical report, 4/22/81, ___________________ M.D. 
F. SMR’s show on entrance physical history of treatment for adjustment problems pre-service. Medical report of Dr. _________, shows veteran treated May 30, 80, to December 8, 80, ior adjustment disorder with mixed emotional features. 
During service veteran had pre-existing mole removed from upper left inner thigh. Veteran struck in face by hammer in November, 86. No fracture or dislocations by X-ray. Veteran landed on knees 12/2/89, knees cleaned and hibiclens scrub brush and bacitialim ointment applied. DVA exam shows no limitation of motion, no structural lumbosacral abnormalities. No residuals of facial or knee trauma. No evidence of ear infection or conjunctivitis. Veteran gives history of ovarian cyst. 
Mental status exam shows speech is slightly increased in rate normal tone. Affect is full and appropriate somewhat anxious. Mood is dysphoric. Veteran denies auditory and visual hallucinations, delusions, and suicidal or homicidal ideation. 

Thought processes are goal directed. Impression was dysthymia rule out organic mood disorder depressed secondary to ______________, generalized anxiety disorder and ___________________________Rule out panic disorder, rule out obsessive-compulsive disorder. Remainder of exam unremarkable. 
D. Veteran’s knee and facial trauma, ear infection and conjunctivitis were all acute and transitory with no residuals shown on DVA examination. Ovarian cyst is developmental. Back pain not ratable in absence of objective symptomatology. The removal of the mole, left thigh was remedial, no aggravation shown. The veteran’s generalized anxiety, depression pre-existed service. Aggravation not shown. ________________________________No basis for service-connection for any of the above conditions. 
8. NSC (PTE) 
5299- Bilateral knee condition ( acute and trans) 5299   Back condition (not incurred) 6099 Conjunctivitis -(acute and trans)  6299 Ear infection (acute and trans) - 7699 Ovarian cyst (can't read what they wrote) 9499. Obsessive-compulsive disorder with anxiety and depression (EPTS) 

14. Disability result of veteran’s ____________________________ 

Edited by Linda Jordan
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On ‎6‎/‎12‎/‎2019 at 4:11 AM, Buck52 said:

Sounds like this examiner didn't do you any favors.

Do you have a service connected rating? for depression /anxiety  or PTSD?

What all are you S.C. For?

I was denied this claim but was service connected for anxiety 28 years later when I had a mental health exam with the VA for PTSD. They denied the PTSD but gave me 70% for anxiety and they used 66 pages of service records that weren't associated with my claims file in 1990 to do it. I've argued that 38 C.F.R. 3.156 mandates they reconsider my old claim and award me an EED for 1990 but they won't do it. They're trying to say the anxiety is a new claim and that no old claim exists. 

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On ‎6‎/‎12‎/‎2019 at 4:43 AM, broncovet said:

A claim remains pending until finally adjuticated.  

Have you gotten a final decision on issues not yet adjuticated?  (Especially issues that were never addressed but claimed, or those deferred).  

If you did get a final decision on the above issues, then you have a one year window to appeal the effective date.  

There are at least two ways to attack the older decisions:

1.  File to reopen due to new and relevant evidence under either 38 cfr 3.156 B or 3.156 C.   Of course, this would mean you had new evidence that was not considered.  

   If you have new "service records", under 3.156 c, that VA did not consider, then you should get an earlier effective date. 

   However, under 3.156 b, "pending claim" it will only net you an effective date of the date you filed new evidence UNLESS you filed new evidence BEFORE one year post decision.  

 2.  File CUE on the decision(s).  

      My advice is to take your file to an attorney.  See if he sees an earlier effective date, and why.  You can then decide whether or not to hire him, or to try it alone.  

     Its my opinion that large retros dont happen without an attorney except in rare cases (or if your name is Berta).  There are reasons for this.  GS 7 rating specialists are pretty much not permitted to award 100,000 plus retro checks.  This only happens by a judge at the BVA or higher.  

     The bottom line is do you want 100 percent of nothing or 80 percent of, say, 200,000 dollars??  

I sent my info to an attorney today. No matter the evidence I put in front of their eyes, they are saying a white rabbit is black. In my case, the attorney would be looking at the 200,000 dollars. I would be looking at 800,000. The reason is I'm going for multiple screw ups and if I am rated at 70% going all the way back as per 38 C.F.R. 3.156 for the anxiety and I fill in the gaps with my other claims, I'll be good to go. I had an actual diagnosis for generalized anxiety disorder from the examiner and one other I'm saving for later that a little known law, that changed one month after my claim was final, will allow me access to. I need the anxiety first. I have several cards up my sleeve still - with C.U.E. on three different fronts being my last choice. These potential C.U.E.s are solid. I just need someone who can organize the material and make them listen. 

Edited by Linda Jordan
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I agree with Broncovet who said:

"My advice is to take your file to an attorney.  See if he sees an earlier effective date, and why.  You can then decide whether or not to hire him, or to try it alone. "

You did file within one year after service and that is good----but there is a lot to this claim...

it appears that they disregarded this  older statement, when they did SC you for  the 70% anxiety:

"F. SMR’s show on entrance physical history of treatment for adjustment problems pre-service. Medical report of Dr. _________, shows veteran treated May 30, 80, to December 8, 80, ior adjustment disorder with mixed emotional features. "

But that was about 2 years prior to your enlistment? And they did accept you into service.

Apparently that 'adjustment disorder' had nothing to do with your actual inservice anxiety,that they finally did award.

That is something I would think a lawyer would focus on- and this :

." I had an actual diagnosis for generalized anxiety disorder from the examiner and one other I'm saving for later that a little known law, that changed one month after my claim was final"

When was the General Anxiety disorder diagnosed?

What is the 'little known law"?

The most difficult thing to do with claims like this, is to do exactly what you said- to organize everything, and keep it simple and focused on 38 CFR 3.156 . 

I don't see the CUE scenario here-and 38 CFR 3.156 would get the same EED results.But a lawyer would have all of the records, and would be able (I hope) to see if CUE occurred. 

Have you attached here anywhere, their most recent denial, when they said this:

" I've argued that 38 C.F.R. 3.156 mandates they reconsider my old claim and award me an EED for 1990 but they won't do it. They're trying to say the anxiety is a new claim and that no old claim exists. "

 

 

 

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Attornies, like people, have differences of opinion.  Further, some attorneys like to specialize in a particular area of Veterans law..probably because they won a case in that area.  

So, dont give up. 

Take it to another attorney.  My experience has been that I need to show my cfile to at least 3-4 law firms before ONE accepts my case.  

Some law firms are so busy they really dont want a case that they can not "see to the end".  

You know..  a chessmaster sometimes can "see" this checkmate, while lesser skilled players can not see it.  

I have been turned down by dozens of attornies, but have been accepted by several.  

    I even sent my file to Mr. Carpenter. (He is the best, in my opinion).  He was busy and didnt get to even look at my file for like a month.  I had already hired another attorney, in the interim.  

    I will mention this:

    On my last 2 decisions, I hired attorneys for both.  

    At least 4 attorneys turned me down, when, in fact, my case was winnable, and, indeed, I won both cases.  (one was a win, another was a remand, but neither were denied). 

     Even the attorney who won case number 1, turned me down for case number 2.  I persisted, got another attorney and won.  

     NEVER GIVE UP.  

     Another attorney may see something attorney number 1 did not see.  Often, the winner winner chicken dinner is not the one "the Veteran" thinks will win, its something else.  

     There are about 25 million Veterans, and maybe only about a couple hundred Vets attorneys in NOVA.  There really is a shortage of attorneys representing Veterans, so they can/are choosy.  They cant afford to take cases where they dont have a high probability of winning.  

    

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  • HadIt.com Elder

Linda Jordan quoted 

 ''I had a record of being treated for my back and I worked in an aircraft structural repair shop for four and a half years where we carried around 70 lb tool boxes (which is mentioned in the report in my service medical records and I weighed a whopping 115 lbs at the time) but they said "no connection". I've had back trouble and treatment ever since.''

if you have these records on file and they denied you for this reason or never read this part of your records   file CUE on them

Linda it would help if you attach a redacted copy of the denial claim for PTSD.

Also when you were awarded the anxiety 28 years later at 70%  you should be able to recover any retro they never paid you for those 28 years or get a correct EED on this Issue.

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  • HadIt.com Elder

I agree with bronco  look at calling some experienced attorney's  or VA Accredited claims Agents a   list from Alex Graham   he is a certified Accredited VA Claims Agent.

  check at asknod.org  for the national list of  VA Claims agents. Alex has.

maybe one near you?

 

Edited by Buck52
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