Non-presumptive Asthma Rating

[MilvetHD]

Hi All, 

I'm writing in hopes of gathering knowledge from the personal experiences of those who have successfully petitioned the VA for a service connected asthma rating. I'm an OEF/OIF veteran and due to my MOS I was frequently in close proximity to burn pits and all that good stuff, my major challenge is I am a four years outside the 10 year window for a presumptive rating and my active duty military records are silent on the matter. My symptoms were present during my active service, but because of a previous experience of medical malpractice (I loss an organ due to medical neglect) I completely loss faith in the military healthcare system and stopped reporting anything. Doing so has come to haunt me now but I did what I needed to do in order to survive the crazy. I'm only focused on the path ahead. I know the VA is unpredictable and takes on a combative role against the veterans they are entrusted to care for, but, I do have a current diagnosis along with treatment and I am working on getting a nexus letter to state that it is "as least likely as not" that my asthma is related to military service. I've thought about adding Buddy statements to my future claim but in my previous interactions with the VA it appears to me they are never given serious consideration. Please share with me what information you believe helped you successfully adjudicate your case. As an aside, and again, I know the VA doesn't make sense but it seems to me that if they are acknowledging asthma as a presumptive condition due to burn pits the timing of the diagnosis seems immaterial. I can think of any number of valid reasons why a person may not present within that 10 year window. 

 

PS: Prior to the joining the military straight out of high school I was a four sport athlete and had no asthma related issues whatsoever, nor does anyone else in my immediate family. 

[broncovet]

It sounds like you have figured it out.  You mentioned at least 2 of the Caluza's (nexus and in service event), so keep going, and keep appealing.  

 

I suggest you see this CCK law video on how your benefits are affected by the Burn Pit Act:

 If you get denied by the BVA, by all means seek an attorney which will likely be paid for you by the EAJA.  

Remember, tho, you have a short window to appeal a BVA decision, not the full year to appeal a VARO decision, so Board decisions should be appealed within 60 days.  The CAVC will accept your appeal for up to 120 days, but dont wait.  It takes time to hire an attorney and file an appeal.  

You can even file a "NOA" Notice of appeal, yourself, and seek representation later.  

The form (NOA) is available here:

https://www.uscourts.cavc.gov/documents/Form_1.pdf

While I do recommend Veterans seek legal representation, its never because I get paid from law firms to do so.  Instead, its because I personally had quite a fight for my benefits, which could only be solved with legal representation.  I actually hired 3 different law firms over the past 10 years or so, and all resulted in a favorable outcome, with "almost no" attorney fees paid out of my pocket.   If you ask, I will explain the "almost", part.  (Time permitting). 

Edited July 7, 2022 by broncovet (see edit history)

[MilvetHD]

@broncovet  thank you for that information. I have reached out to a couple of law firms and my impression generally is that if there is not a mountain of service treatment records they aren't interested. In fact, and I appreciated the honesty but I had one tell me outright they would not take my case. I'll likely stick with the DAV but have learned that it's best to spoon feed them as much information as possible. 

[broncovet]

MILVET HD

    Be neither discouraged nor should you give up when one or even more law firms turn down your case.  They decline them for a variety of reasons, and you may not be privy as to why.  

Some reasons law firms decline to represent (Veterans):

1.  They dont have experience in "that aspect" of Veterans law.  Keep looking.  

2.  They have a "bad taste in their mouth" because of a poor experience from another Vet on a similar issue.  

3.  Personal reasons:  Family, etc.  

4.  Mostly, however, experienced law firms who represent Vets are very busy, so they can pick and choose.  

     NONE of the above reasons have anything to do with the merits of your case.  

Its been my experience, I contact about 5 law firms for each one that agrees to represent me.  This means 4 decline.  I have been turned down by at least one law firm, and, years later, on different issues, get offered representation.  So, the timing matters.  You, too, may have been "in the market", say, for a car, but, as time passes, you are no longer interested for a variety of reasons.  Or, vice versa, you were not interested months ago, but your car broke down, so you are ready to buy now.  

    Attorneys go through that, too.  They may have been booked up last year, but that may have slowed down so now they are interested.  

One thing that makes a big difference:  Potential Retro: ($$).  

     If you are looking for an attorney to get you an EED for 10 percent..(about $1200 potential retro), they may well decline this.  However, if your case is 18 years old, and you could win 100 percent for 20 years, this could be worth a half million or more.  Guess which one of these they are looking for?