Should I File for EED or CUE

[bigbetty3id]

2004 Asthma denied

 

 

2018 Asthma Granted

Edited November 24, 2019 by bigbetty3id

[JKWilliamsSr]

The lack of symptomology is going to be a problem especially since you state this yourself.  They will repeatedly deny you because of this which will force an appeal.  I do have a question though.  The assumption is that you had Asthma in 2004 which is why you are service connected.  Were you on any medication during this period?  The reason this is important is because I am 30% for asthma because of the medication I take.  I have a diagnosis and I use Advair daily as well as carry a rescue inhaler as needed. You do not need to have asthma attacks to be service connected but if you were on medication during this period it would be a slam dunk for EED. 

[Vync]

Asthma ratings are special. If you have even one STR indicating you had an asthma attack, it opens the door. 

This is found in https://ecfr.io/Title-38/pt38.1.4 under DC 6602 Asthma, bronchial

Quote

Note: In the absence of clinical findings of asthma at time of examination, a verified history of asthmatic attacks must be of record.

That statement has been in the asthma criteria for ages.

In effect, you could show up for the C&P exam, have no clinical findings, have perfect pulmonary function test results, and as long as asthma is documented in the STRs, that should be sufficient to consider granting a rating (in my non-professional opinion).

 

From my earlier post: 

Quote

 

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.

 

@broncovet asks the key question. What changed?

Between the 2004 an 2004 decision, did you submit new evidence?

If no new evidence was submitted, then one can assume that the VA simply overlooked the STRs in the 2004 decision. In my opinion, that might be a CUE under 38 CFR 4.2 and 38 CFR 4.6. The VA is supposed to make decisions based on the totality of the evidence of record. The presence or absence of physical documentation in your STRs is a clear fact. It is either in there or not. If the VA makes a bad decision because they overlooked something that was present, that should, at minimum be sufficient for them to revise the initial decision (in my non-professional opinion).

Of course, the best time to asked for an EED review was within the one year window after the 2018 decision. Revising based on CUE is not a walk in the park.

 

[JKWilliamsSr]

1 hour ago, Vync said:

If no new evidence was submitted, then one can assume that the VA simply overlooked the STRs in the 2004 decision. In my opinion, that might be a CUE under 38 CFR 4.2 and 38 CFR 4.6. The VA is supposed to make decisions based on the totality of the evidence of record. The presence or absence of physical documentation in your STRs is a clear fact. It is either in there or not. If the VA makes a bad decision because they overlooked something that was present, that should, at minimum be sufficient for them to revise the initial decision (in my non-professional opinion).

Of course, the best time to asked for an EED review was within the one year window after the 2018 decision. Revising based on CUE is not a walk in the park.

If I read his original note the initial denial was based on SMR's did not show complaints.   He finally got rated after SMR's finally appeared.  So per the law he should get back pay from the original denial PROVIDED he can provide evidence of continual symptoms.  The beauty behind the law is that you do not have to show proof the VA had the SMR's or not.  It does not matter when the SMR's became a matter of record. 

[Guest]

I think this point is way lost. IMHO it would be very hard for the veteran to overcome the fact that he/she claimed no, absolutely no systems.  Those claims of no symptoms  are part of the 2004 rating decision. Now or in the future if SMRs and or treatment records are located and added to the C-File the veteran  still cannot overcome his/her own words.  Even if the examiner misunderstood this would be a straight up steep hill battle.  I sure hate to think this way but I don't see how he/she can win.

[JKWilliamsSr]

3 minutes ago, pete992 said:

I think this point is way lost. IMHO it would be very hard for the veteran to overcome the fact that he/she claimed no, absolutely no systems.  Those claims of no symptoms  are part of the 2004 rating decision. Now or in the future if SMRs and or treatment records are located and added to the C-File the veteran  still cannot overcome his/her own words.  Even if the examiner misunderstood this would be a straight up steep hill battle.  I sure hate to think this way but I don't see how he/she can win.

I agree with you on this Pete.  The only way I can see overcoming this is by medication.  When I am on my medication my Asthma is controlled and I do not experience any Asthma symptoms.  I stop taking the medication and the issues start quite quickly.  If the breathing test does not warrant a rating then the only way to be compensated is by medication even for 10%.  I have to use my medication daily which is why I am 30%  

[Vync]

@JKWilliamsSr, @pete992 

Seeing the C&P exam notes and relevant STRs' would really help clarify the situation, but the veteran may not have them handy or might not want to share them.

I had a C&P where the doctor started by asking, "How are you today?". I responded, "Fine". They wrote that to wrongly interpret that I was not reporting any symptoms, despite having filed a claim asserting a certain disability.

Keep in mind asthma is a really tricky rating. It is used when there is no other diagnosable respiratory condition, but airway constriction is present. The "note" in the rating criteria requires the VA to go and check the records to see if there instances of asthma attacks on record. Technically, you could have FEV/FVC%'s of 100% perfection and still get granted a rating because your STRs shows you reported breathing issues and filed a claim for it.

The VA is still required to consider all evidence of record. It is in VAOPGCPREC 12-95 and references Russell v. Principi, Bell v. Derwinski, and Damrel v. Brown. Based on the totality of the evidence of record, the VA should not deny based on one instance where no problems were reported.

His 1997 C&P exam showed "pulmonary function results consistent with mild restrictive disease or asthma".

Of course, they denied because "there was no evidence that you had a chronic disease of that nature during service". Back then, looking for "chronic" was a very popular way to deny benefits. I can't recall off the top of my head what forced the VA to stop looking for the term "chronic". I think it might have been in the VCAA of 2000.

And then there is this: "In 2002, however, military PFTs, which they showed some abnormalities possibly associated with small airway disease, were also considered to be possible normal variants."

In 2004, the VA gave this statement less weight and it appears to be the basis of the denial. But the underlying STR's would need to be reviewed to determine if the VA merely quoted "possible", or did other STRs have a diagnosis or assessment of asthma. The VA loves to deny a nexus because it contains the word "possible", but in this case, they may have used it as a reverse nexus. It may present problems from a CUE perspective because it would be attributed to how the evidence was weighed.

Either way, he still does have clinical evidence both in service and during the 1997 C&P showing respiratory problems. That's probably what the VA used to grant the 2018 rating.