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Is This An Early Effective Date Or Cue?

15 posts in this topic

Posted · Report post

In late 10-2010 I submitted memorandum letter from the Department of the AF that was dated 8-2010, this letter was sent to me because I asked the AF Board to change military records to change my dd214 from JFL to JFL1, the AF Board allowed the request to go forward by saying that the even though the request was not timely filed (26 years after discharge) that in the interest of justice that they will overlook the time requirements.

Subject - Application for correction of military records.

Requested Action - The applicant is requesting to have his separation code of JFL changed so he can receive benefits that have been denied him by the Veterans Administration.

Facts - Applicant was referred to the informal physical evaluation board on 14 Dec 1984, for facet syndrome, lumbar spine, with low back pain. The IPEB found member fit for duty. Member requested a hearing with counsel at the formal physical evaluation board. On Jan 18 1985 the FPEB recommended discharge with severance pay with a disability rating of 10%. The member non-curred with the FPEB and in his rebuttal to the Secretary of the Air Force (SAFPC) requested that he be given additional testing on his back. On March 25 1985 after review of the case file and proceedings from the FPEB the SAFPC recommended discharge with severance pay with a disability rating of 10%. Message was sent which established the discharge date of April 23 1985. Member served 3 years 11 months and 23 days of active service.

Discussion - Member is wishing to receive benefits from the Veterans Administration. Members dd214 form correctly reflects that member was discharged by reason of a physical disability and entitled to severance pay. JFL is the correct separation code for a person who was approved for a medical separation with severance pay.

I applied for my VA benefits while still on active duty so that I would be entitled the day after my discharge. 3 months later the VA denied my claim and now, since I have E-benefits, I see where they say that I was denied because their is no evidence in my SMR or elsewhere that I had any injury or disease during service. I have a Line of Duty determination that states my injury was caused by direct physical trauma to my lower spine while working as an aircraft mechanic in my files from the MEB investigation and over 2 years of physical therapy while on active duty. My final diagnosis was from the Chairman of the Orthopedics Department at Malcolm Grow Medical Center.

I have copies of my SMR's and Admin records that I made 26 years ago and every time in the past I tried to submit them, they would not accept them because they said that all the information was used to deny my original claim in 1985. I have been denied in 1985, 1990, 1999 and now 2009.

I am hoping that the following VA Memo regarding reconsideration of claims is in the works. VA Memo regarding reconsideration of claims

Current Diagnosis from VA med center - Major depression disorder due to uncontrollable pain (90 OXY's monthly), Chronic low back pain, MRI says herniated disc, 3 bulging discs, degenerative facet and spondylosis of entire lumbar spine. Just had C&P for hearing - hearing loss due to aircraft noise exposure, bilateral high range freq loss, bilateral tinnitus, seeing a ENT specialist this month for the discharge from ears, canal scarring and tympanic perforations first diagnosed on my initial hearing exam in 1985. Vertigo has been making my life even more miserable.

Basically, they claim that my records held no mention of a disability or injury incurred or aggravated during active duty upon discharge in 1985, Cue based on records available at the time they denied me 3 months after AF and DOD said 10% disabled and forced me out. Anyone would reasonably agree that I should have at least received a 10% rating for the disabilities based upon the appeal determination by the Secretary of the Air Force. I am not disputing medical opinion but only that I had a statutory benefit entitlement that was ignored in 1985.

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Posted · Report post

I think that memo you were referencing is 38 CFR 3.156 which is the regulation concerning new and material evidence.

You can re-open a closed claim citing that regulation if you have found new evidence to support what was denied before.

There are some additional rules on this new evidence which may allow the EED to be dated from the original filing.

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Posted · Report post

Did the VA have this information at the time of the decision?

You could use 3.156. I also suspect you may have a valid cue since this decision as made before the VCAA of 2000.

I would run this by an expert. (Not a VSO)

JBasser

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Posted · Report post

JB, my original dd214 copy shows that I requested in block 20 that copy 6 be sent to KS Dir of Vet Affairs and in remarks it says copy 3 went to VA Data Processing Center and copy 6 to Kansas Veterans Commission. The DD214 states under other special information block 28 discharge by reason of physical disability with entitlement to severance pay. I applied before my medical separation from active duty (prior to the disability at discharge processing now used) using the DAV to have my entitlement set at the day after discharge, this would be my early effective date April 23 1985.

I do not know what else I could have done in order for them to have my records before they made the decision to deny my original claim. In 1990 I sent my copy of the FPEB transcript to the VA and asked for reconsideration, they replied back that the transcript was not new because the FPEB transcript was used in the 1985 ruling to deny my claim.

I have a VSO but he is not helpful, can you send an email giving me some recommendations for legal representation? I am in Kansas. I have talked with a law firm but since I have not gotten as far as to filing a NOD, I am on my own.

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Posted · Report post

You have mail.

Basser

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Posted · Report post

First I would at least file a new NOD on the latest denial.

I am assuming you want to attack the original decision from 1985.

Could you scan that rating decision from 1985 and post it here, first editing out personal names, SS#, etc.

I would be very interested to see what they were using if they ignored all your medical evidence from your SMR.

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Posted · Report post

Unless the VA listed or referred to the FPEB transcript in the original 1985 rating then they excluded it. I have much the same situation where the VA had information that they excluded in a decision. That is part of the process of winning a CUE. You have to show that the evidence excluded would have changed the outcome of the rating decision. That is not so easy since the VA depends on what "reasonable minds" would have concluded. The "reasonable minds" are the VA. I have not found them reasonable. If they are saying they considered the FPEB, but there is no proof they did consider it then I think you have a CUE, but you will have to fight about it. When the VA gets in a tight spot they just lie. This is why I got a lawyer. They are sort of asking you to prove a negative. You have to show that the VA did not consider your FPEB. Your local VARO won't buck this decision because of 25 years of retro at stake. Their posistion is that they considered it, so you don't have a CUE. I think you do have a CUE.

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Posted · Report post

My denial letter dated July 29, 1985 from the Veterans Administration Medical and Regional Office Center that read as follows:

Dear Mr. xxxx

We have carefully considered your reopened claim for service connection of hearing loss and back disability.

We have found it necessary to deny service connection for your back disability because this condition, under existing laws, cannot be classified as a disease of injury. The law allows for payment for benefits only for those disabilities which do result from disease or injury.

We do not find in your medical records or elsewhere any evidence of the existence of a hearing loss. If you have additional evidence to show your claimed condition does exist, please send it to us for consideration.

F. J.

Adjudication Officer

I sent this inquiry through IRIS on August 21, 2010 and I list their response below the questions.

I think that errors were committed in 1985 and that they could be Clear and Unmistakable Errors but I am unable to determine what this is because I have never been provided a notification as to why my original claim, filed why I was still on active duty, was denied.

Can you tell me why my original claim was denied and why my direct service connection was severed?

Can you tell me why a reopened claim request was made on my behalf by the VA in 1985?

Can you tell me why the reopened claim was denied in 1985 and what existing laws were used to make the determination that my direct service connected back disability could not be classified as a disease or injury?

Can you tell me why in the 1985 letter that denied my reopened claim stated that the hearing loss, which was final and adjudicated by the Chief, USAF Physical Disability Division, HQ AFPC/DPSD and evidenced on my form 356, could not be found by the VA Adjudication Officer?

I have had a request into the Wichita VARO since September 2009 requesting a copy of my C file but to this date I have not ever received a copy of my C file to review the information from 1985.

VA IRIS Answer

This message is in response to your inquiry to the Department of Veterans Affairs on August 21, 2010, regarding your benefits. We see conflicting information regarding your original claim and there reopened claim in 1985, so we are forwarding this inquiry to our Wichita Regional Office, to research the matter, and send you the original rating decision. They will answer your questions regarding these claims.

The Air Force and VA are separate organizations. The Air Force granted service connection, but the VA didn't. The Air Force still considers those conditions to be service connected. Service connection was never severed by the VA, because it was never established by the VA.

I guess I should follow up with the IRIS question and ask for an update.

Victor

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Posted · Report post

Make the call. BV. You have got them.

J

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Posted · Report post

I can see now what the VA was saying about the USAF and the VA and it makes sense, somewhat.

However, you can clear it up when you get your copy of the C-file.

You can request it online again and I strongly suggest you do that immediately. You can go to your VSO and request they help you in getting your C-file. It really looks fishy that you have not received it. I would lean on the VA in person if you have to to get your rightful copy of the c-file. One of these methods should work for you and it does take some time . Mine was a few months before it showed up in the mail.

Once you have your c-file then you can see exactly what the VA did or didn't.

It certainly looks like the USAF has screwed this up from the beginning.

Good Luck on this!

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Yes, when you get the C-File you can see exactly what evidence they had in their possession when they denied your claims. They may have had the evidence you need right there in your file, but just ignored it. I think this is quite common in older claims. In my original claim they based the entire rational for the award on notes from a VA doctor. They ignored the SMR's and my doctor's report. Before VCAA the VA just did what they felt like doing.

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Before VCAA the VA just did what they felt like doing.

And remember the good old Not Well Grounded !

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From the Late Great Macho Man Randy Savage (Poffo) OOOOOHHHH--- YEAHHHHHHH

That NWG statute was replaced by the current. Wording since the VCAA.

Basser

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Not Well Grounded is a catch all phrase which means,

"Altho I never read your file as I am illiterate, I am denying you because I am the rater and I said so, and you are nothing but a peon Veteran."

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Sorry about this next part, I guess I am just frustrated by the whole attitude from the VA that my SMR's were absent of any kind of injury or disease while on active duty and I need to get it off my chest from time to time. Frustration is not a word that sums up the 26 years of pain, relationship problems and employment interuptions. I didn't do anything wrong and I have never been able to claim that I am a service connected disabled Veteran because I am asked by others about how the VA has rated my disabilities and I feel the need to explain to them that the VA has not rated me because of errors. I choose not to bring it up my sacrifice because it is humiliating that the VA deems me to be a parasite trying to suck off the governments nipple.

Since all my SMR's were supposedly used in the original decision, the "well grounded" rule forbade me from being able to connect current health issues to those in the military. "That is not so easy since the VA depends on what "reasonable minds" would have concluded." I think any reasonable mind would have reviewed the following service medical records to figure out that they support the decision by the Secretary of the Air Force that I had a back disability:

01/27/82 Health Care Record Summary of Doctor visit Hurt right hip fell on ice.

01/29/82 Emergency Care and Treatment Emergency room visit Patient C/O pain in right hip due to falling on ice. Patient has pain in lower back. Seen on 1-27-82 at emergency room and given valium. Low back strain.

01/29/82 Health Care Record Summary of Doctor visit Low back pain

12/29/83 Physical Profile Serial Report Physical Profile Chronic lower back pain, with recent strain. No lifting over 10 lbs, no prolonged sitting or standing greater then 30 minutes.

01/27/84 Health Care Record Summary of Doctor visit Low back pain. Narrowing of L4 L5.

01/30/84 Health Care Record Summary of Doctor visit Consult back injury. Narrowing of L4 L5, Lumbar Syndrome, and evaluation for corset fitting.

01/30/84 Physical Profile Serial Report Physical Profile Lumbar Strain, no lifting over 10 lbs, no prolonged sitting or standing greater then 30 minutes.

01/31/84 Consultation Sheet Summary of Physical Therapy Clinic. Lumbar Syndrome, centered lower back pain - clicking noted. Tender LS region. ?Spondylolisthesis

02/17/84 Health Care Record Summary of Physical Therapy Clinic. Lower back pain, Lumbar Syndrome and renew profile.

02/17/84 Physical Profile Serial Report Physical Profile Lumbar Strain, no lifting over 10 lbs, no prolonged sitting or standing greater then 30 minutes.

03/12/84 Physical Profile Serial Report Physical Profile Lumbar Syndrome, no lifting over 10 lbs, no prolonged sitting or standing greater then 30 minutes.

03/22/84 Physical Profile Serial Report Physical Profile Bilateral Spondylolisis L5. No stooping or lifting over 15 lbs.

03/24/84 Health Care Record Summary of Doctor visit PARs defect L5 Slip, Bilateral Spondylolisis, lower spine, chronic lower back strain. Ultra sound therapy recommended.

03/29/84 Health Care Record Summary of Doctor visit Lower back pain, needs permanent profile. Spondylolysis L5 Bilateral.

05/12/84 Health Care Record Summary of Doctor visit Renew profile, lower back pain. AF Form 422 completed.

06/06/84 Consultation Sheet Summary of Doctor visit Lower back pain, After he hears "pop" pain is relieved.

06/06/84 Physical Profile Serial Report Physical Profile Facet Syndrome (No clear evidence of spondylitisthesis. Avoid lifting more then 20 lbs, no pushing or pulling, no climbing.

06/12/84 Health Care Record Summary of Doctor visit Permanent Profile consult, refer to ortho Malcolm Grow Medical Center

06/12/84 Physical Profile Serial Report Physical Profile Facet Syndrome (No clear evidence of spondylitisthesis. Avoid lifting more then 20 lbs, no pushing or pulling, no climbing. No aerobics.

07/19/84 Narrative Summary Cross Training of xxxxxx. Patient presents with most likely symptom of FACET Syndrome with myefacial chronic pain pattern. Cross training is recommended to career field in which the straining, pulling and pushing will be avoided. Should wear a lumbosacral corset to support his lower back and avoid types of exercise and past time activities which will include no straining of the lumbar spine. Patient had a series of low back x-rays. Came with a diagnosis of Spondylolysis, on examination of x-rays there is no clear evidence of spondylectic defect. Patient does have a suggestion of a partial defect on pars of the L5 level but there is no clear defect. Facets are all normal and disc spaces are normal without any signs of degenerative disc disease.

08/02/84 Report of Medical History MEB Medical History Report Hearing loss, broken bones, recurrent back pain, wear brace for back support.

10/11/84 Medical Board Report Summary Statement Facet Syndrome, lumbar spine. 24 year old male has facet syndrome which runs in intermittent course where he has discomfort for hours to days to weeks after a lifting or twisting mishap. Originally thoughts were given to cross training however patient is planning to separate from AF in April 1985. Not unfitting.

10/17/84 Line of Duty Determination Finding injury occurred in the line of duty

10/17/84 Line of Duty Determination Line of Duty Determination Low back strain, 1-27-82, approx 2200 hours patient was pulling liquid oxygen cart on the flight line when the listed injury happened.

01/18/85 Findings of PEB Disposition of PEB Facet Syndrome, lumbar spine, with low back pain. Is unfitting, degree of impairment is permanent, 10 percent rating. Hearing loss, minimal, row A column A not unfitting, impairment is permanent 0 percent rating. Member is unfit because of physical disability.

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