Should I File for EED or CUE

[bigbetty3id]

2004 Asthma denied

 

 

2018 Asthma Granted

Edited November 24, 2019 by bigbetty3id

[Guest]

9 minutes ago, Vync said:

@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.

Yes, I agree and have no problems with evidence in his/her  SMRs.  IMHO, the fact that it claims the veteran claimed no symptoms at the time of the C & P exam in 2004 is what shot the claim down.  The veteran must have had symptoms or he/she would not have filed the claim but this evidence in away killed any percentages above 0%.

I have had bad C & P exams and as soon as I got a copy, I filed statement in support that I felt that my C & P examiner was inexperience and not a specialist working in a specific medical field.  In other words how can VA agree with a Nurse Practitioner instead of a current Neurologist working in his medical field and treating me.  VA did not like that but a lot of C & P examiners are not specialist and their medical opinion should not be considered over a specialist working and treating a veteran.

[bigbetty3id]

Redacted Documents: To Vync, pete992,  and others helping me with this got C-File and found 1997 ETS Physical is this any help to my claim for Asthma and Thank You all for your hep

[Guest]

In order to receive any type of EED retro pay your records must prove/show:

FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy

10

Note: In the absence of clinical findings of asthma at time of examination, a verified history of asthmatic attacks must be of record. This is the minimum threshold for asthma. I still think that the statement that you claimed no symptoms of any kind is very damning, It (destroyed) the idea of service connection for this time. This is my humble opinion and I could be very very wrong but I am only going by your post and I do not know what is actually in your file.  Yes, service connection was granted but that does not mean you should get an EED without medical evidence even though your records show it was documented.  As I posted earlier, I believe you had symptoms but what treatment  records do you have from 2004 to the date you were awarded your claim.  If you agree that you told the examiner you had no symptoms then there is no EED.

[Vync]

I agree with @pete992. The minimum rating is for intermittent use of inhalers to treat your breathing issues or if PFT's/spirometry fall in the 71 to 80% range.

The Report of Medical Examination found lungs and chest as "abnormal" and the doc noted Asthma, but indicated it as PMHX, which means past history. Sometimes the VA gets weird when something is noted as PMHX, so ensure you have any service treatment records for asthma. 

It would be helpful for you to request a copy of the C&P exam where the doc noted you claimed no issues. Double-check that first because the VARO often fails to read everything correctly. If you did not tell the doctor that, then you might consider filing a request to amend your medical records.

38 CFR § 1.579 - Amendment of records
https://www.law.cornell.edu/cfr/text/38/1.579

 

[bigbetty3id]

Redacted Document: To pete992, Vync do you think this  examination would imply to my claim

[Guest]

What evidence do you think you have and or what are you actually seeking?  I understand you are seeking an EED but for what?  VA really screwed a lot and I means a lot of veterans with this NWG (Not Well Grounded) BS and it really irritates me.  I recently won an EED from a NWG claim but my claim went all the way to CVAC.  It took me twenty plus years and the evidence was date stamped and in my C-File and never got adjudicated/rated until recently.  I am on your side but I need to see/know what is your evidence that shows/proves you should have gotten a higher rating prior to this rating.