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Vync

38 CFR § 3.322 Rating of disabilities aggravated by service; preservice reduction criteria

Question

Regarding 38 CFR 3.322, the VA is supposed to determine if the preservice level of disability can be ascertained in terms of the rating schedule. If it can, and the rating was not 100%, then they are supposed to deduct the preservice level of disability from the awarded level of disability.

If the rating criteria changes while the veteran was in service, which rating criteria should be used?

- Criteria in effect at the time they joined the service
- Criteria in effect when the rating decision was made

Or could it be the criteria that is more beneficial to the veteran?

Quote
§ 3.322 Rating of disabilities aggravated by service.

(a)Aggravation of preservice disability. In cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree of disability existing at the time of entrance into active service, whether the particular condition was noted at the time of entrance into active service, or whether it is determined upon the evidence of record to have existed at that time. It is necessary to deduct from the present evaluation the degree, if ascertainable, of the disability existing at the time of entrance into active service, in terms of the rating schedule except that if the disability is total (100 percent) no deduction will be made. If the degree of disability at the time of entrance into service is not ascertainable in terms of the schedule, no deduction will be made.

(b)Aggravation of service-connected disability. Where a disease or injury incurred in peacetime service is aggravated during service in a period of war, or conversely, where a disease or injury incurred in service during a period of war is aggravated during peacetime service, the entire disability flowing from the disease or injury will be service connected based on the war service.

 

 

 

 

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19 hours ago, Vync said:

If the degree of disability at the time of entrance into service is not ascertainable in terms of the schedule, no deduction will be made.

this is one of the operant conditions that affects this type of claim.

In the induction physical and record is there documentation of the problem BEYOND the veteran saying "i have...." or "i hurt my knee as a kid".

Did they run appropriate tests to determine a level of disabling effect prior to allowing you to go to boot camp?

Go read VLB on this issue. Chris Attig has a great example of how to challenge on a claim of presumption of soundness, which by nature would include this topic.

If the military did nothing more than take your word you had an injury, then that is NOT evidence of a pre-service condition for rating purposes, at least in most cases. You still have to fight them on such a claim.

The same would apply here. Did the induction center say, "bob can only stand on his right foot because his left foot is bad" (obviously they need to be much more specific than that) or they just cannot reduce. They need to be able to determine specifics. If they cannot, then no reduction.

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@GeekySquid This is regarding another CUE that has been bouncing around in my head for a while. I read Chris Attig's page recently, but my situation is a bit of an exception due to the circumstances.

 

9 minutes ago, GeekySquid said:

Did they run appropriate tests to determine a level of disabling effect prior to allowing you to go to boot camp?

Didn't happen. I reported having problems in the pre-service medical questionnaire, but the entrance exam doc found my nose to be "normal".

I got out in 1995, filed a claim, and appealed until I won in 2000. They awarded 30% for allergic rhinitis due to aggravation and an extensive history of treatment and worsening during service. The VA reduced the award by 10% because the C&P doctor opined “…veteran obviously had allergic problems before entering the service which got worse while he was in the service.”

I learned about 3.322(a) and researched rating criteria in 4.97 at the time I joined and when the decision was made:

Quote

Effective 1964:
6501 Rhinitis, atrophic, chronic:
With massive crusting and marked ozena, with anosmia 50
With moderate crusting and ozena, atrophic changes 30
With definite atrophy of intranasal structure, and moderate secretion 10

 

Quote

Effective 1996:
6522 Allergic or vasomotor rhinitis:
With polyps 30
Without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side 10

 

I have copies of preservice medical records showing I was diagnosed with allergic rhinitis, so the presumption of soundness is not a factor.

This rating has 20 year protection, so the VA cannot reduce or sever the rating because no fraud is not a factor. They could try to change the type of SC from aggravation to direct, the end result would be moot with no % change.

The plan is to target the failure to properly to apply the plain writing in 3.322(a). It is not possible to ascertain the C&P doc's opinion in terms of the schedule (either criteria) so they should have not reduced the rating. 

The rating criteria from when the decision was made is probably what the VA would use. It probably would not hurt to just toss in both just to show them how wrong they were. A win would mean the preservice level of disability being changed from 10% to 0% and undoing the reduction.

After the heart attack I had earlier this year and the subsequent brain issues, I realized life can be short. I got to thinking that I might not be able to continue working at some point so I felt it necessary to actually righting some of the wrongs by the VA. When I got out, my ratings were 20/10/10/10 = 41.68% (40%) combined. Changing the 20 to a 30 results in 48.97 (50%) combined. Hitting 50% means the VA would have to reimburse a ton of VA office visit/medication co-pays and provide retro from 1995 through 2010.

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6 minutes ago, Vync said:

I reported having problems in the pre-service medical questionnaire, but the entrance exam doc found my nose to be "normal".

this is your baseline for presumption of soundness. IF as the Chris Attig article states, the induction center performed more than cursory notation of a pre-service condition, and found you acceptable for service, then they found you "sound" except for xxx. If they did nothing more than accept your intake forms, looked up your nose and said "yep you're cool to join", then there is no exception.

9 minutes ago, Vync said:

The VA reduced the award by 10% because the C&P doctor opined “…veteran obviously had allergic problems before entering the service which got worse while he was in the service.”

the words "obviously" and "before entering the service" are operative here in light of this other statement you posted.

11 minutes ago, Vync said:

I have copies of preservice medical records showing I was diagnosed with allergic rhinitis, so the presumption of soundness is not a factor.

By that I mean, does the VA have copies of those records? could they get those records?

The word "obviously" is an opinion not based on facts if they don't have those records and found you sound without exception at induction. Even if true that you had such a medical condition, unless it is documented under the presumption of soundness standards it just does not exist as a fact of record. The VA can only use facts of record in its determinations. In other words a random opinion not based on documented facts is an impermissible grounds to make a determination.

The phrase "before entering service" implies, in this context, that there are records the Dr reviewed showing such a documented diagnosis. If they did that is fine and legal, if they didn't it is an improper basis for a determination. A fact not in evidence at the time.

Combined they are a construct designed to have the rater infer that those two conditions existed and were appropriately considered by the C&P Doctor. This is impermissible.

21 minutes ago, Vync said:

It is not possible to ascertain the C&P doc's opinion in terms of the schedule (either criteria) so they should have not reduced the rating. 

I assume you have the full record of that time and if so, then this is a good attack and on point.

23 minutes ago, Vync said:

The rating criteria from when the decision was made is probably what the VA would use.

please complete that thought.. use for what?

23 minutes ago, Vync said:

It probably would not hurt to just toss in both just to show them how wrong they were.

Take care to make sure your cue is on point, with no extraneous language that might be interpreted as opinion.

25 minutes ago, Vync said:

I got to thinking that I might not be able to continue working at some point so I felt it necessary to actually righting some of the wrongs by the VA.

I wish this was not reality, but your thinking on it agrees with my own claims.

25 minutes ago, Vync said:

Hitting 50% means the VA would have to reimburse a ton of VA office visit/medication co-pays and provide retro from 1995 through 2010.

I hope this happens for you.

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37 minutes ago, GeekySquid said:

this is your baseline for presumption of soundness. IF as the Chris Attig article states, the induction center performed more than cursory notation of a pre-service condition, and found you acceptable for service, then they found you "sound" except for xxx. If they did nothing more than accept your intake forms, looked up your nose and said "yep you're cool to join", then there is no exception.

The only abnormal things noted on my entrance exam is refractive  error (eyeglasses) and acne.

37 minutes ago, GeekySquid said:

By that I mean, does the VA have copies of those records? could they get those records?

The word "obviously" is an opinion not based on facts if they don't have those records and found you sound without exception at induction. Even if true that you had such a medical condition, unless it is documented under the presumption of soundness standards it just does not exist as a fact of record. The VA can only use facts of record in its determinations. In other words a random opinion not based on documented facts is an impermissible grounds to make a determination.

The phrase "before entering service" implies, in this context, that there are records the Dr reviewed showing such a documented diagnosis. If they did that is fine and legal, if they didn't it is an improper basis for a determination. A fact not in evidence at the time.

Combined they are a construct designed to have the rater infer that those two conditions existed and were appropriately considered by the C&P Doctor. This is impermissible.

The VA was never provided the pre-service medical records, so they were not part of the official record or examined when the C&P exam was performed and rating decision made. My parents kept them safe and gave them to me after I got out.

41 minutes ago, GeekySquid said:
1 hour ago, Vync said:

It is not possible to ascertain the C&P doc's opinion in terms of the schedule (either criteria) so they should have not reduced the rating. 

I assume you have the full record of that time and if so, then this is a good attack and on point.

I have complete copies of the C&P exam. The doc did state that exactly and the the rater merely quoted from it.

42 minutes ago, GeekySquid said:

Take care to make sure your cue is on point, with no extraneous language that might be interpreted as opinion.

Indeed. I think my draft is pretty solid. The only thing I was wanting to confirm was the deal with which criteria they could or should have used. Realizing the plan is to attack with lean surgical precision, I don't think it would hurt to include both criteria. The arguments I make should be clear, unmistakable, and reasonable enough that the VA could not deny.

 

 

 

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26 minutes ago, Vync said:

The VA was never provided the pre-service medical records, so they were not part of the official record or examined when the C&P exam was performed and rating decision made

if this is correct, and I assume the doctor that did them is long gone, then unless you provide them those records or an insurance company paid for that treatment, then there is no record they could "find" to support their assertion. Even if you verbally told them about it, there is no evidentiary record. Take that for what you will.

27 minutes ago, Vync said:

I think my draft is pretty solid.

if you think that, then it is as solid as you believe it needs to be. Your opinion is the only one that matters.

28 minutes ago, Vync said:

I don't think it would hurt to include both criteria.

If you think that is the best attack plan, then implement and launch the attack!

29 minutes ago, Vync said:

The arguments I make should be clear, unmistakable, and reasonable enough that the VA could not deny.

absolutely on point.

A CUE requires that there is no way a reasonable person would conclude anything other than what you are claiming. While not explicitly written into the law, if an "explanation" is needed to understand the CUE, it might not be a true cue, or it just might be poorly written. This is why I make the format suggestions I do. Keep it clean, simple, fact/evidence based. point to the actual section of whatever law you say they violated instead of the entire law.

Cite consistently and properly: make sure everything you cite is either listed at the top or attached as an enclosed document/ exhibit (whichever word you chose to use). I suggest both, but I don't mind the printing and mailing costs. For example printing just 4.6 and highlighting the part you want them to read (your cite) and attaching that as ah exhibit/enclosure, is worth the cost (minimal) and effort (yeah it is tedious but this is your money.)

I don't personally want my reviewer to go stumbling through 38 USC, 38 CFR, Public Laws, or the MR21. I want them to read ONLY the words I want them to read. If I could pin their eyes on ONLY the words I want them to read I would figuratively drive a spike through their head to do so. This is where good writing comes in.

In a way it is like sending in a resume. An HR person spends like 15 seconds scanning each resume. If nothing stands out, it gets tossed on the reject pile.

DON"T get your CUE tossed on the reject pile.

keep us informed and I would love to see the final document you submit, minus PII

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