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70%&sfsystem

DRO & duty to assist action

Question

Good morning everyone I have currently been in a notice of disagreement for going on a little over three years with a higher level review DRO.

  The DRO contacted me in March of this year 2019 and stated that he is denying three of my claims but found a duty to assist on my fourth and fifth claim  that he was going back to the PA to have her fix I watched my health vet  that had a negative DBQ from that PA then she basically deleted it and re-wrote in favor more likely than not 50% service-connected that was completed in July of this year I have both of her DB cues the negative and the positive I’m at the eight month mark And have been told that it’s ready for a rating for the last three months still waiting does anybody else have this problem Indianapolis?

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You've been at NOD for almost three years...The DRO is denying three of your contentions and the examiner is fudging the DBQ?  First question is do you have a VSO or a Lawyer?  Your Claims; are they 1. Connected to an injury or illness from your Service?  2. Are they disabling you now?  3. Is there a Nexus that connects your current disabilities to what happened in Service?

It looks to me as though you need evidence.  Yes, the RO has a duty to assist, but you have to know your file.  Did you request your C-File?  You must get this and go through it very carefully.  What happened in Service should be in your medical records.  Then you need an Expert Medical Opinion obtained by a Doctor that what happened in Service is disabling you now.  You'll also need the Nexus.  Never, ever settle for less than you are entitled to.

If you don't have a Lawyer; get one.  20% of Retro is better than you getting nothing.  Medical Evidence is the biggest and most important aspect of your Claim.  If a Lawyer believes that you have a legitimate claim, then you'll probably wait on the DRO Review and request a Hearing with the DRO.  If that is unsuccessful then you'll choose a lane in the new Appeals system.

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    • Peggy toll free 1000 last week, told me that, my claim or case BVA Granted is at the RO waiting on someone to sign off ,She said your in step 5 going into step 6 . That's good, right.?
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    • I took a look at your documents and am trying to interpret what happened. A summary of what happened would have helped, but I hope I am interpreting your intentions correctly:


      2003 asthma denied because they said you didn't have 'chronic' asthma diagnosis


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      "...granted SC for your asthma with COPD w/dypsnea because your STRs show you were diagnosed with asthma during your military service in 1995.


      First, check the date of your 2018 award letter. If it is WITHIN one year, file a notice of disagreement about the effective date. 

      If it is AFTER one year, that means your claim has became final. If you would like to try to get an earlier effective date, then CUE or new and material evidence are possible avenues. 

       

      I assume your 2003 denial was due to not finding "chronic" or continued symptoms noted per 38 CFR 3.303(b). In 2013, the Federal Circuit court (Walker v. Shinseki) changed they way they use the term "chronic" and requires the VA to use 3.303(a) for anything not listed under 3.307 and 3.309. You probably had a nexus and benefit of the doubt on your side when you won SC.

      It might be possible for you to CUE the effective date back to 2003 or earlier. You'll need to familiarize yourself with the restrictions of CUE. It has to be based on the evidence in the record and laws in effect at the time the decision was made. Avoid trying to argue on how they weighed a decision, but instead focus on the evidence/laws to prove they were not followed or the evidence was never considered. It's an uphill fight. I would start by recommending you look carefully at your service treatment records and locate every instance where you reported breathing issues, asthma diagnosis, or respiratory treatment (albuterol, steroids, etc...). CUE is not easy and it helps to do your homework before you file.

      Another option would be to file for an increased rating, but to do that you would need to meet the criteria for 60%. If you don't meet criteria for a 60% rating, just ensure you still meet the criteria for 30% (using daily inhaled steroid inhalers is adequate) because they are likely to deny your request for increase. You could attempt to request an earlier effective date that way.

       

      Does this help?
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    • Precedent Setting CAVC cases cited in the M21-1
      A couple months back before I received my decision I started preparing for the appeal I knew I would be filing.  That is how little faith I had in the VA caring about we the veteran. 

      One of the things I did is I went through the entire M21-1 and documented every CAVC precedent case that the VA cited. I did this because I wanted to see what the rater was seeing.  I could not understand for the life of me why so many obviously bad decisions were being handed down.  I think the bottom line is that the wrong type of people are hired as raters.  I think raters should have some kind of legal background.  They do not need to be lawyers but I think paralegals would be a good idea.

      There have been more than 3500 precedent setting decisions from the CAVC since 1989.  Now we need to concede that all of them are not favorable to the veteran but I have learned that in a lot of cases even though the veteran lost a case it some rules were established that assisted other veterans.

      The document I created has about 200 or so decisions cited in the M21-1.   Considering the fact that there are more than 3500 precedent cases out there I think it is safe to assume the VA purposely left out decisions that would make it almost impossible to deny veteran claims.  Case in point. I know of 14 precedent setting decisions that state the VA cannot ignore or give no weight to outside doctors without providing valid medical reasons as to why.  Most of these decision are not cited by the M21.

      It is important that we do our due diligence to make sure we do not get screwed.  I think the M21-1 is incomplete because there is too much information we veterans are finding on our own to get the benefits we deserve

      M21-1 Precedent setting decisions .docx
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