Claim review helps disabled World War II veteran.

Thomas W. Kressler, an 82-year-old veteran disabled in combat during World War II came to the DAV seeking assistance for hearing difficulties. Unfortunately, after a review of the claimed condition, it was determined Kressler was properly rated for his hearing loss at 0 percent. The story might well have ended there but for the professional training and dogged determination of an observant National Service Officer.

Kressler joined the U.S. Army in April 1943 and soon found himself in combat against German forces in Europe. He was attached to Headquarters Company from Company "C" of the Fourth Infantry Division's 22nd Infantry Regiment.

"They picked out certain ones of us to go out at night to locate enemy positions and report them so they could be destroyed the next day," Kressler said. "I think they picked me because I was Pennsylvania Dutch and could speak a little German. If the position wasn't destroyed using the information we gave our guys, we would go back out at night to destroy the position."

On Nov. 19, 1944, before the soldiers moved out into the dark searching for targets, they were cautioned to be back before 8 a.m. Artillery was scheduled to begin a bombardment in the outlying area at that time the next morning. The patrol didn't make it back in time.

Kressler was among the soldiers wounded in the bombardment. He took shrapnel in the left shoulder blade, right forearm and left thigh. He was treated and later returned to duty with some of the shrapnel still in him. It would not be the last time he would be wounded or his last brush with death.

In April 1945 he tangled with an enemy grenade. A piece of shrapnel flew inside his helmet and bounced around leaving him with a head wound. It was treated in the field by a medic, and the rangy Browning Automatic Rifleman returned to duty again. This time he finished out the war and returned to the States. He was sent to Baltimore, where the young private went to the hospital to get the shrapnel he was still carrying extracted.

Kressler grew tired of the way he was being treated in regard to his disability by the VA and decided to do something about it.

"I spotted a DAV newspaper and tore the address and membership form out of it," he said. "I sent the form in with my membership payment."

That's as far as Kressler's DAV involvement went at the time. He was discharged from Camp Meade, Maryland on March 2, 1946.

In a rating decision dated May 24, 1946, Kressler was granted service connection for wounds to the left scapula (shoulder) muscle group at 30 percent disabling, the right forearm at 20 percent disabling and muscle group XV (thigh) at 20 percent disabling for a combined rating of 60 percent. Less than four months later his benefits were reduced to a combined rating of 40 percent.

Kressler filed for an increase in compensation for his service-connected disabilities in December 1949, but a January 1950 rating decision confirmed and continued the previously reduced 40 percent combined rating. Unknown to Kressler, a clear and unmistakable error (CUE) had now occurred in his case and would not be discovered for 57 years.

Following World War II the world began to change and the U.S. military downsized. Members of the military, mostly men, returned to the civilian workforce and the country began to build and grow.

Kressler left high school to go into the military. He had wanted to be an architect, but his lack of education and disabled forearm kept him from that career. He still wanted to build things and got into the construction trades, where he spent a career until retiring in 2005.

In 1984 Kressler became a life member of the DAV. He is currently a member of Chapter 23 in Pensacola, Fla. Through the years he had followed the organization through its publication and has grown to trust it. After a claim for service-connected disability for a hearing loss was denied, Kressler contacted the DAV National Service Office in St. Petersburg to file an appeal.

NSO Michael A. Michelotti received Kressler's claims file to review and assist with the appeal for entitlement to an increased rating for bilateral hearing loss. Unfortunately, after a review of the claimed condition, NSO Michelotti determined Kressler was properly rated for his hearing loss at 0 percent, end of story? Not when you have a professionally trained DAV NSO on the job.

"During my training as a National Service Officer, my mentor/trainer Sam Sabino (former Assistant National Service Director and Assistant Supervisor at the St. Petersburg Office) would always tell me, 'When you review a file containing ratings for gunshot wounds, which includes shrapnel, take a few minutes to review the past rating history. This is where clear and unmistakable errors are possibly found.' Sam also said the VA either rated muscle group injuries too low, or did not apply the bilateral factor properly."

The review of Kressler's file left NSO Michelotti feeling something wasn't right.

"Mr. Kressler received two gunshot wounds in service, one to his right forearm, and one to the left scapula, both rated 20 percent disabling," NSO Michelotti said. "He also had an injury to his thigh, rated as 10 percent disabling, for a combined evaluation of 40 percent. Using the VA's combined ratings table for disabilities, this would have been the correct rating if the veteran did not sustain injuries to both upper extremities. It appeared that the VA had failed to apply the 'bilateral factor.'"

Simply put, the bilateral factor results when an individual has one extremity with a service-connected disability and another extremity with a service-connected disability. When this occurs, a mathematical 10 percent can be factored into the combined rating.

"Once I realized the error, I needed to determine how far back they failed to apply the bilateral factor. Mr. Kressler was originally granted service connection on March 3, 1946. The bilateral factor was established in the 1945 Schedule for Rating Disabilities." At the time, the interpretation of how to apply the bilateral factor was left up to the rater's interpretation of the regulation, but on Aug. 23, 1948, the VA amended the 1945 Schedule for Rating Disabilities defining the terms and procedures on how to properly apply the bilateral factor.

After Kressler filed for an increase in compensation for his service-connected disabilities on Dec. 29, 1949, the VA should have applied the bilateral factor as required by the amended Schedule for Rating Disabilities, in its rating decision dated Jan. 18, 1950, but failed to do so.

NSO Michelotti submitted a claim on Kressler's behalf based on the CUE on Apr. 24, 2006. The VA denied the claim for CUE on May 22, 2006.

NSO Michelotti tried again. He met and talked to the VA Decision Team Coach who agreed with the decision of the rating board members continuing the denial. Three years of training and work on behalf of disabled veterans had steeled the NSO. He wasn't ready to take no for an answer.

"I went to the Assistant Service Center Manager, who sent the file to a Decision Review Officer (DRO) for review and a second opinion. The DRO concurred with our claim that the VA should have applied the bilateral factor to Mr. Kressler's claim in its Jan. 18, 1950 rating decision."

A new decision was rendered on July 21, 2006. It stated, "A clear and unmistakable error was found in rating decision dated Jan. 18, 1950, because the bilateral factor was not correctly applied from Dec. 27, 1949, to provide a combined evaluation of 50 percent." The old soldier had won his appeal.

Alhough Kressler and NSO Michelotti had only dealt with each other via telephone and letters, they formed a lasting bond and respect for each other.

"I appreciate what Mike and the DAV have done," Kressler said. I went to the DAV about my hearing, but Mike went over my records anyway and found something I wasn't even aware of in them. I think the DAV did a heck of a job for me. I won't forget it."

"There is no greater thrill or joy than notifying a Word War II veteran that an injustice has been corrected and a retroactive payment will be made," NSO Michelotti said. "Veterans helping veterans is why I became an NSO when I retired from active duty. I could not have found a more rewarding profession. Building better lives for America's disabled veterans and their families is not just a motto for me, it's now a way of life."