Should I File for EED or CUE

[bigbetty3id]

2004 Asthma denied

 

 

2018 Asthma Granted

Edited November 24, 2019 by bigbetty3id

[Vync]

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

2018 Asthma/COPD granted 30% effective Feb 2015 based on FEV-1 of 60% and inhalational anti-inflamatory medication.

"...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?

Edited November 25, 2019 by Vync

[bigbetty3id]

To Vync,  and all of the veterans thank you for the response and info on my EED or CUE November 23, 2019. I did file a NOD before the 1 year time frame. I have been absent do to some health issues for the past few months. I wasn't ignoring your post but for the past couple of months I had some complicated health issues.

[Guest]

Please forgive my ignorance, your 2004 claim was denied because of your C & P exam and your statements.  You reported no systems of any kind and now you want to file a CUE claim for EED.  Sorry I am not trying to be insensitive but you really have me lost. I would say that even if you did file a CUE claim and won the rating would be 0% with  absolutely no zero retro pay if that.  In other words you will most likely be denied.  " No current cough, shortness of breath, or other respiratory symptoms. You reported you do not have asthma attacks, do not have any associated functional impairments and do not require treatment for respiratory symptoms".  I could go on but what is the use.  I do know that symptoms not treatment is the essence of any claim but you denied all symptoms so where is the EED or CUE that proved you had met the criteria in 2004.  What am I missing?  Please help me understand.

[Miken2c74]

I read the same thing. I don't know what the threshold is for challenging that or any exam is but if that is not what you said this would be a good place to start in a lay statement.

[broncovet]

Lets summarize (I have to admit this is very hard for me to read, the print is small):

You were denied for asthma in 2004 because "there was no evidence (of asthma) in your SMR's."

Then you were awarded asthma in 2018, I would guess "somebody" found evidence to Service connect this in 2018, rather than 2004.  

My question is "what changed"?  The obvious answer is you submitted "new service records" that confirmed your sc, now that is a reopen due to 38 cfr 3.156(c).  

And, it sounds like they did "not" apply 3.156 (c) with the effective date, which should have been when you first applied.  (Tho I can not suggest a disability percentage for 2004, because I dont know what symptoms you had then and you would need to appy those symptoms to the criteria.  )

Based on what I posted, this is CUE, the VA failed to apply 3.156 (c).  However, Cue has to be "outcome determinative".  And, VA could argue that you could be awarded this at 0 percent in 2004.  The bottom line:

Quote

These two decisions are in conflict with one another.  This suggests "one" of them is wrong.  

Again, for Cue, you would have to review your medical records and see "what percent" your symptoms suggest based on the criteria.  I agree there is error here.  I dont know if its CUE error.  But..there are benefits for service connection "even at 0 percent" from the period 2004 through 2018.  

I do agree with Pete, however, if you did not have asthma attacks for the period, the "facts found" do not support retro.  In order to get CUE, it would take a review of your files and "probably" an IMO "refuting" that statement with medical evidence, if, indeed you had asthma attacks earlier than the 2004 decision suggests.  

It sounds like the route most likely to suceed is to appeal the 2018 decision's effective date, probably with an IMO where the doc reviewed your complete records and he noted you have had the symptoms much before 2018.  This assumes you did receive treatment in 2004-2018.  

Edited February 7, 2020 by broncovet

[broncovet]

The etiology (cause, such as it occuring in service) did not do a 180 degree turn.  Your asthma was either caused by service or it wasnt.  VA admits it was.  These decisions suggest your asthma made a miraculous 180 degree turn around, which magically "turned" from NSC to SC in/about 2018.  

You may need a lawyer to fix this and get retro.