877-838-2889

Nebraska Veteran Prevails on VA Claim Appeal for Asthma and Other Conditions

November 13, 2018, Washington, DC – Bergmann & Moore (B&M) attorneys prevailed on behalf of a disabled Gulf War Veteran who sought benefits from the U.S. Department of Veterans Affairs (VA).

 

In 2004, the Army Veteran filed a claim for disability benefits, and over the next few years, the Regional Office (RO) granted service connection for her asthma, gastroesophageal reflux disease (GERD), and pes planus (flat feet).  The Veteran, who lives in Nebraska and deployed to Southwest Asia during the current war, added several conditions to her claim starting in 2014, including a pulmonary embolism, menstrual issues, headaches, and blackouts.

 

The Veteran also sought increased ratings for her asthma, GERD, and feet.  Over the next two years, the RO issued several rating decisions that denied service connection for the newly claimed conditions.  VA also denied increased ratings for the conditions VA had already granted. 

 

The Veteran disagreed with the RO and appealed to Board of Veterans’ Appeals (Board), located in Washington, DC.  In December 2017, the Board denied higher ratings for her asthma, GERD and feet.  She had several additional increased rating claims for joint disabilities and Individual Unemployability (IU) remanded.  IU compensates a Veteran at the 100 percent rate when it is determined that a Veteran is unable to work due to a service-connected condition.  The Board denied service connection for the new conditions.

 

Still believing VA made mistakes on her complex claim, she contacted Bergmann & Moore seeking representation on her appeal from the Board to the Court of Appeals for Veterans Claims (Court), also located in Washington, DC.

 

In October, 2018, B&M and the Veteran prevailed at the Court when VA agreed to a Joint Motion for Partial Remand (JMPR).  In the JMPR approved by the Court, VA admitted the department made several errors processing and deciding the Veteran’s claim and appeal:

 

 1. VA failed to obtain the Veteran’s in-patient VA treatment records, including medical test results.

 

 2. VA failed to place additional private and VA medical records into her claim file for consideration. 

 

 3. VA failed to consider the Veteran’s allegation that she had not been warned of the risks of blood clots due to VA-prescribed medication.

 

 4. VA failed to address her allegation that her asthma had worsened since her last examination, including supporting evidence in her VA medical records and her new VA prescriptions for asthma.

 

 5. VA failed to discuss why the symptoms and manifestations of her GERD did not entitle her to separate ratings under ventral hernia and hiatal hernia, which is not prohibited.   

 

As result of the JMPR, the Veteran’s appeal was returned by the Court to the Board in order to correct VA’s errors and decide the issues again.  VA must attempt to obtain her in-patient treatment records as well as add her VA and private medical records to her claim file.  The Board should then decide the issues again, specifically addressing if she provided informed consent, whether the VA examination regarding her asthma is adequate, and if separate ratings are warranted for her GERD.

 

B&M is honored to assist Veterans and family members with VA claim appeals at a VA Regional Office, the Board of Veterans’ Appeals, and the Court of Appeals for Veterans Claims.   

 

If you are not satisfied with VA’s rating decision on your claim, such as a low rating, an incorrect effective date, or a denied benefit, then please contact Bergmann & Moore for a free consultation at 877-838-2889 or info@VetLawyers.com.

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