Is There A Chance I Might Regret This?

Tammy · February 14, 2007

My husband was in the service and was smashed in between to missle launchers and he broke his back but the records of his x rays in Germany were never found but they did issue him in 2004 deformity of a L2, torn urether, loss of the use of his penis, and IBS due to adhesions it all totaled up to 60% and the rest was for unemployablity. My question is he filed a claim the day he was discharged from the service March 1979 and he didn't get anything until 2004. Now we file a NOD, 1151, and a CUE because his back was broke but they keep stating it was a deformity but yet now that VA Doctor did admit it was more likely than now his back was fractured in the accident while serving in the Army. My question is...Will there be a chance he could get everything taking from him by doing what we did. Its in the appeal process already and it has been since 05 and they are fixing to make a discission. We have never be sucessful at retriving the accident report nor the records of his xrays from the German hospital. So, should we be nervous that they could possible take him off all his disablity including unemployablity. Is there a diffrence from Permant unemployablity or does it all read that. Its just that his back was broke in 1979 and they said it wasn't.

Can someone lead me in the right direction I have a letter I am fixing to send to them but I would like someone to proof read it. So I know if I should send it out or not. Thank you

Tammy in MT

Vike17 · February 14, 2007

Tammy,

"My husband was in the service and was smashed in between to missle launchers and he broke his back but the records of his x rays in Germany were never found but they did issue him in 2004 deformity of a L2, torn urether, loss of the use of his penis, and IBS due to adhesions it all totaled up to 60% and the rest was for unemployablity"

From what I gather your husband was rated at 60% but was granted 100% due to IU. I don't know if you are leaving any disabilities out of this because he doesn't meet the schedular criteria for IU unless all these disabilities were considered as one etiology due to being combat injuries?

My question is he filed a claim the day he was discharged from the service March 1979 and he didn't get anything until 2004. Now we file a NOD, 1151, and a CUE because his back was broke but they keep stating it was a deformity but yet now that VA Doctor did admit it was more likely than now his back was fractured in the accident while serving in the Army. My question is...Will there be a chance he could get everything taking from him by doing what we did"

If he filed a disability compensation claim for these injuries within a year of his discharge and wasn't decided until 2004, which is highely unlikely, but has happened before, then your husbands effective date should be the day after his discharge and should have received a retro accordingly. If the back is already service-connected from the injury in service, regardless if it's stated as deformity or a fracture, the evalutions of the residulas is pretty much the same. In this case range of motion and an appeal just to get the reasons ( from deformity to a fracture) for service-connection is pretty much a moot point. The only way the VA can sever (to take away) service-connection is if there was fraud involved. this doesn't happen very often.

"My question is...Will there be a chance he could get everything taking from him by doing what we did. Its in the appeal process already and it has been since 05 and they are fixing to make a discission. We have never be sucessful at retriving the accident report nor the records of his xrays from the German hospital. So, should we be nervous that they could possible take him off all his disablity including unemployablity. Is there a diffrence from Permant unemployablity or does it all read that. Its just that his back was broke in 1979 and they said it wasn't"

Since your husband is already service-connected for his back, those actual x-rays and accident reports from the service are also pretty much a moot point. The VA will not sever service-connection, as I stated above, unless there was fraud involved with the original decision. Also the VA will not reduce an IU award unless there is solid evidence that the veteran has engaged in substantial gainful work. "Permant unemployablity" is when the VA awards CHAMPVA and Ch. 35 benefits. This means then there isn't any future exams scheduled and he is designated as "P&T" or "Permanent and Total."

The only thing I would suggest in the appeal is, if your husband really filled a claim in 1979 and didn't receive a decision until 2004, that the effective date is correct i.e back to the date of disacharge. I would also make sure the VA awarded SMC "k" for the loss of use of a creative organ somewhere in there too due to his erectile dysfunction.

I hope this helps!

Vike 17

Berta · February 15, 2007

"they did issue him in 2004 deformity of a L2, torn urether, loss of the use of his penis, and IBS due to adhesions it all totaled up to 60% and the rest was for unemployablity"

Did they mean a deformity DUE to the accident?

It seems they have already sced his back injury.

Tammy · February 16, 2007

"they did issue him in 2004 deformity of a L2, torn urether, loss of the use of his penis, and IBS due to adhesions it all totaled up to 60% and the rest was for unemployablity"

Did they mean a deformity DUE to the accident?

It seems they have already sced his back injury.

yes it was due to the accident everthing he has is all stated

sercvice connected.

Hoppy · February 16, 2007

Vike17,

Wouldn't depend if there were no futher exams scheduled. If so they could re-evaluate whether the veteran initiated an appeal or not. Filing an appeal could in some way accelerate a re-examination. Also I thought the VA was ready to take away TDIU from thousands of veterans because they thought that the examination proceedures were not followed. later they determined that the proceedures were followed. The problem was that the examinations were barried in the C-File. No fraud on the veterans part was involved. I sometimes wonder if the VA just doesn't do what they want. I know one veteran who was called in for re-examination 15 years after he was determined to be perminent and total. Maybe they suspected fraud. In any event his rating was not reduced.

Tammy · February 20, 2007

rdawg
Yes, that is 25 years. What I wanted to know was why it sat for so many years without being denied or approved if that is the case. If you file within one year of discharge it is considered to be service connected usually. Where was the claim for 25 years? If there is a written record of the claim in 1979 that should help I think. I was thinking that 1979 and then 2004 was a misprint or something. Is there any record of discharge physical?

yes we do have the discharge paper and he did file in 1979 and the responce was a 10% FOR A torn urether but it wasn't or nothing was given to him for his back it wasn't because we werent appealing it. It was in 2000 that they took the 10% away from the urether and put it on his back. Than we appealed again and in 2004 they gave him 40% with 20% on back deformity and 10% arthirtis in spine, and 10% urether all sevice conneted and than in 2003 he got 40% back, 20% arthritis back, 10% penis dysfuction, IBS, and UI it all comes up to 60% and with the deormtiy and loss of use of penis was all done in 2003. Than we filed for the nod. and 1151 and they just dont' want to use the word fracture they call it a deformity of the spine, evne though the Doctors call it a fracture. But the Cand P exams says it all more likely than not due to the accident. Why won't they just accent the truth that his back was broke. I can't find the letter that was sent out regarding that if a vet signed a complaint on an injury within 1 yr they can go back to that date. If anyone know where i can find that letter I would be so happy. I just am so tired of trying to get them to admit the truth.

Thank you

Tammy