No BVA hearing date yet ... Is this normal?

[WomanMarine]

I have an appeal in with the BVA. 

In 1980 when I asked for an increase on my 0% rated disability, rather than increasing it, they totally removed it! I believe this is a CUE. I have just recently been awarded my disability @ the 100% unemployability rate. The V.A. even states in my decision that my knee should have been 30% PRIOR to service ... 

I submitted my NOD for new effective date October 2018 and have not heard a word; except folks @ 1-800 telling me it does not exist; only to recant when I tell them I am looking at the original ... 

Is this normal?

[Vync]

Have you looked on ebenefits to check your disabilities and percentages? There is a difference between service connected (SC) and non-service connected (NSC) disabilities. If you post the original decision letter where they removed instead of increasing, with private info redacted, it might be helpful. I'm curious about this:

2 hours ago, WomanMarine said:

The V.A. even states in my decision that my knee should have been 30% PRIOR to service ... 

Could you explain this a bit further? The VA has rules regarding aggravation where they reduce your rated level by the pre-service level. Not sure if this is what you are referring to though.

 

When you submitted the NOD for the EED, did you do it online, via mail, through your VSO? Regardless, I always submit mine via certified mail, in addition to uploading online, so I have proof of when they received the envelope.

[WomanMarine]

On 7/22/2019 at 3:22 PM, Vync said:

Have you looked on ebenefits to check your disabilities and percentages? There is a difference between service connected (SC) and non-service connected (NSC) disabilities. If you post the original decision letter where they removed instead of increasing, with private info redacted, it might be helpful. I'm curious about this:

Could you explain this a bit further? The VA has rules regarding aggravation where they reduce your rated level by the pre-service level. Not sure if this is what you are referring to though.

 

When you submitted the NOD for the EED, did you do it online, via mail, through your VSO? Regardless, I always submit mine via certified mail, in addition to uploading online, so I have proof of when they received the envelope.

Yes, right now I am 90% SC.

When I was discharged, 1975, I had an accident w/my DoD 10% rated knee. After rehab, I went to Voc Rehab so I could get some training. I was denied. In the letter that I received with my C-File they stated I was only rated 0% by the V.A. 

I had another accident w/knee in 1980 and applied for benefits. V.A. denied and took away my 0%.

Now V.A. states in recent rating on knee that it was 30% PRE service ... 

[Vync]

@WomanMarine The whole 30% pre service thing gets to me because it seems to be made up out of thin air.

I'm SC for aggravation of a pre-existing condition. Once SC, they granted me 30% for allergic rhinitis. They are supposed to use the rating criteria in effect at the time to determine the pre-service level of disability. Then they claimed I was 10% before service because the doctor asked me if I had allergies as a child, which I confirmed. However, the rating criteria was very objective (either obstructions or polyps). Instead, the examiner made up his own 10% criteria justification out of thin air. The end result as a 30% - 10% preexisting = 20% rating adjustment. Back in the 90's, I was just happy to get something. Now I'm planning to file a CUE because they failed to calculate it by using objective factual evidence.

Would you be able to post the relevant text of the decision letters, omitting any private information? Hopefully there could be some explanation of why they would do that.

 

I would recommend you go back and look at your exams from when you entered and left the service. These generally consist of two parts. First, they ask you to fill out a "have you ever had this condition" form based on your history. The doc examines you to determine if they can confirm if you ever had those. If they find something, they will indicate it. Otherwise they will mark it as normal. In my case, I checked off a few things, but the doc found I wore glasses (refractive error) and had acne. You need to look at the objective evidence to see what existed before and after service and whether the doctor diagnosed an issue or found it normal (i.e. presumption of soundness).

Next, you need to look up the rating criteria which was in place at the time. This might have been quoted in your decision letters. Back then, everything was transcribed by typewriter and there may have been human error. I always like to double-check, which could require a bit of research but it is not difficult. Here's how you do that.

I normally go to the government's link here to look up disability ratings because they reflect current laws. Because you got out in 1975, that can be a bit tricky to find. You can't use today's ratings to calculate preexisting disabilities from back then. Instead, you can try to look them up here instead:

https://www.law.cornell.edu/cfr/text/38/part-4/subpart-B

For example, I clicked there and looked up 4.71a, which is the schedule of ratings for musculoskeletal disabilities.

Down at the bottom, they give references to the Federal Register stereo instructions. 

Quote

(Authority: 38 U.S.C. 1155)

[29 FR 6718, May 22, 1964, as amended at 34 FR 5062, Mar. 11, 1969; 40 FR 42536, Sept. 15, 1975; 41 FR 11294, Mar. 18, 1976; 43 FR 45350, Oct. 2, 1978; 51 FR 6411, Feb. 24, 1986; 61 FR 20439, May 7, 1996; 67 FR 48785, July 26, 2002; 67 FR 54349, Aug. 22, 2002; 68 FR 51456, Aug. 27, 2003; 69 FR 32450, June 10, 2004; 80 FR 42041, July 16, 2015]

Depending on when you got out in 1975, there are two references. The good news is if you filed a claim and the rating criteria changed before the decision was made, they are supposed to use the more favorable entry.

I clicked the 40_FR_42536 link, but nothing came up. That means Cornell U does not have that online. However, under "free and open sources', they have links various sources where it might reside.

The FR publishes new laws or changes to existing laws, so sometimes you might have to keep digging through previous editions until you find what you need.

I found this in [29 FR 6718, May 22, 1964]. I checked the other editions between then and 1975, but they only had changes to other disabilities. This one appears to be the initial knee ratings ever published.

https://www.govinfo.gov/content/pkg/FR-1964-05-22/pdf/FR-1964-05-22.pdf#page=1

Check your entrance exam, exit exam, and the 1975 C&P exam findings against those and see what was found.

I hope this helps. If the text is hard to read, just follow the link and go to page 63. You can also search by text, like "knee" or "4.71a". However, if you copy and paste it, the results might not be formatted properly.

I hope this helps!

 

 

 

 

 

 

 

 

[WomanMarine]

19 hours ago, Vync said:

@WomanMarine The whole 30% pre service thing gets to me because it seems to be made up out of thin air.

 

 

 

Thanks Vync, you sure have given me the research!

I only had entrance exam, no issues and no troubles w/knee. DoD blew it out of proportion when I said my knee may have given way as a teen ... during my medical exam, I had no idea that those words would haunt me the rest of my life, as said it was NOT to the degree, nor same issue that it was when discharged. So they said aggravated with service.

[Vync]

2 minutes ago, WomanMarine said:

Thanks Vync, you sure have given me the research!

I only had entrance exam, no issues and no troubles w/knee. DoD blew it out of proportion when I said my knee may have given way as a teen ... during my medical exam, I had no idea that those words would haunt me the rest of my life, as said it was NOT to the degree, nor same issue that it was when discharged. So they said aggravated with service.

The term "may have" is inconclusive and speculative. Is there objective evidence proving this happened? I would go after their attempt to establish a pre-service percentage without anything solid.

[WomanMarine]

On 7/25/2019 at 9:18 AM, Vync said:

The term "may have" is inconclusive and speculative. Is there objective evidence proving this happened? I would go after their attempt to establish a pre-service percentage without anything solid.

Not a thing and why I am going after them for ED of the 30% IF I ever get a date ...  But the issue remains, they should have never taken away a 0% rating.

Edited July 27, 2019 by WomanMarine