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Should I File for EED or CUE

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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%  

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@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.

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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.

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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

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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.   

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    • Enough has been said on this topic. This forum is not the proper forum for an attorney and former client to hash out their problems. Please take this offline
    • 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.?
      • 7 replies
    • 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?
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      The sounds of tinnitus may vary with the person experiencing it. Some will hear a ringing, while others will hear a buzzing. At times people may hear a chirping or whistling sound. These sounds may be constant or intermittent. They may also vary in volume and are generally more obtrusive when the sufferer is in a quiet environment. Many tinnitus sufferers find their symptoms are at their worst when they’re trying to fall asleep.

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