propp3

My VSO says "give everything to me" but I don't trust him. I still send everything certified to the local VARO AND the claims intake center... receipts, receipts probably produces lots of duplicates in my c-file but I don't care.

What I see lacking in current C&P's ? The dbq's ask about special testing that's been done. Often any special testing, imaging, etc that has been done and is part of the record, was ord'd by a specialist...often in the VHA. But the dbq never asks is an opinion by a specialist would be beneficial and produce more thorough analysis...often the c&p initially is done by genmed or a NP. And the BVA often remands back to the RO specifying another exam be conducted by a specialist...often causing years of delay.

No, the VA would not rate each fracture or finding at each vertebrae...that would be pyramiding. They also consider the lumbar and thoracic column as one spinal segment...cervical findings are their own segment. The rating code is less important than what the VA has considered service connected regarding all those specific findings, since most lumbo/sacral...lumbo/thoracic conditions are rated using their formula measuring range of motion or incapacitating episodes. Who diagnosed your osteopenia by the way...vs. say, osteoporosis? Was it the VA? And, in the past were you ever diagnosed with osteoarthritis, especially following your back injury? Reason I ask? OPenia is more of a bone wasting process, OPorosis is most often age related, and osteoarthritis is most often age related BUT can also occur at any age and be accelerated by trauma; traumatic arthritis presents very much like OA due to overuse and/or injury. Lumbar strain is a vague catch-all term the VA uses. When you were service-connected, did your x-rays or imaging note any of the vertebral findings you mention? Or anything similar? example: compression fractures are also described as 'anterior wedging' and 'compression changes' , etc.

The United States Court of Veterans Appeals (hereinafter "the Court") held that VA's failure to conduct further evaluations and studies as recommended by VA's own examiner constitutes a breach of its statutory duty to assist the veteran as provided for by the provisions of 38 U.S.C.A. § 5107(a) (West 1991). Hyder v. Derwinski, 1 Vet.App. 221 (1991). See also Green v. Derwinski, 1 Vet.App. 121 (1991) Think I found the case...see snippet above. I think Hyder v. was the CAVC case I'd read and lost track of but gonna read both.

yes Bertha... I googled the phrase so often and so many variations but get tens of thousands of hits. tried cavc search too but yields no specifics. is quoting the bva vlj sufficient in absence of an actual case cite?

yes...using 4.6, colvin(1991?), etc. exam year was 1995 and this bva docket quote was also 1995. the examiner stated he could not conclusively state the etiology without an mri, then that he would not order until he received instructions from the RO. no mri was ever done. so Id like to back this fact up as well with a case cite...but cant find the cova case, only the bva wording. i guess i'll have to go year by year thru the cova decisions up to 94, 95

A few years back read a CAVC cite that in effect said 'RO can't ignore request by C&P examiner for a test, diagnostics, they deem necessary'. Stupid me, I didn't write it down or if I did, I can't locate it now when I need it. Been googlin' but Google produces way too many hits to wade thru. Then I found this at the BVA appeals search page: “The Board notes that the Court of Veterans Appeals(COVA) has indicated that the VA cannot ignore requests for diagnostic studies suggested by its own physicians” The BVA docket # is 91-37 953, and I believe the year is 1995, that the Board remanded it back to the RO using the language above. So I'm not nuts...the BVA was referring to a CAVC(COVA back then) opinion. I just can't find that COVA case cite. Anyone have an idea? I'd like to use it in a CUE argument that'll probably get to the BVA sometime next year, late 2019 if I'm lucky, and I'm condensing/clarifying and adding clarity in preparation. Thanks

Edited down from 42 to 30 pages. About 2/3'ds is the issue of CUE, issues of '92 and the BVA remand '95. The rest relates to a request to increase my back condition that was included with my CUE claim July 2014. If I combine a few issues, say make into "The VA failed to..." rather than (now) "The RO failed to..." and "The BVA failed to...", I can probably shave a few pages more. So I'm getting there... :-)

The VARO probably didn't read all the content in my correspondence either; exactly why one of my new issues is that they twice ignored an implied claim to reopen a claim based on new and material evidence...in July and Oct 2014. All the required elements implying such are there(I show the page #'s and quote). They never addressed in(the recent denial) or sent my a formal claim, as required. The fact the VA 'does not do', comes as no surprise to me at all... as summary I submitted prior to my DRO hearing was I think, 12 pages. Prior to, I read aloud in a normal speaking voice, and timed; took exactly 9 minutes. A normal person could probably read in half that time..4-6 minutes. So it's not like my summary/ies are demanding huge blocks of time :-)

Yes, I realize. One CUE issue deals with '92...knee only, which was never appealed, became final a year later, and was not subsumed by any appeal or remand in '95. Interestingly though, the examiner *did* do a knee exam in '95, and does include a dx of internal derangement of the left knee in his exam notes. he then states the etiology and pathology can not be determined further, without a MRI, which he recommends but does not order. (I really think now he had no idea why he was conducting the C&P exam, because the RO had him repeat the exam). This is the same knee I'd injured in service. In his 2nd exam, he also states the knee and back pain probably related "one affects the other" and even goes as far as to state "the back condition can also aggravate the knee condition, in my opinion" drawing a nexus(I believe) also as a secondary(I was rated for my back injuries) condition. The failure to adjudicate for the knee the VA can worm out of, they never including anything related-to on the SSOC, by saying the knee was not being appealed. But I find it near impossible for them to deny that the exam did not present new and material evidence at the time. So another issue(now) deals with a new and material(left knee) claim based on that IMO/exam and dx then in '95. The VA can't say the evidence doesn't exist; it does. And it was never used in the previous claim(final a year later) so it's not redundant. The age of the evidence means nothing in that context

One issue deals with the failure to adjudicate other diagnoses found on(remand) exam...exactly what one of the remand instructions specified.

No, agreed. That's why I have been so very specific, to show my arguments meet the criteria...establish what was done incorrectly/not done but should've(as violation of law or reg), and that it wasn't a question of judgment or clerical error/misunderstanding. I eliminated a lot of redundancy and shaved down to 30pages(from 42) thus far. But I fear going to far because I don't want the VA to interpret my argument for me, then later tell me "oh, we thought you meant something else" :-)

Filed for a CUE last July, multiple assertions/issues, all relation to my original denial of a knee claim(never appealed) and a RO decision(on remand) to increase my % for my back condition, also final after BVA appellate review. All issues are old, dating back to '92(knee claim) '95(BVA remand to the RO re: my back) and '96(the BVA appellate review). I've don lots of case law and regulation research, applicable at the time, supporting my assertions..all my cites/etc back up my assertions of what should have been done/followed, and what was done or not done, wrong(cites of case law, COVA decisions). The RO passed(said nope), the DRO did not find in my favor(awaiting SOC), and I filed my VA-9/appeal to the BVA. Now I'm completing my summary, further presentation of issues, evidence in support, all my cites, etc. My question? How detailed should I be? I've rec'd advice to keep it short, brief...a few pages. But every research I done about CUE says otherwise...explaining the need for detail/detail/detail. My statement/letter will probably end up after editing at a good 30-40 pages in length. Even with editing to eliminate redundancy, I feel all the issues I've asserted and a forensic eval of the evidence...with supporting case law/regulation/BVA remand instruction('95) cites included...is all necessary and important in making my case. As I responded to one who advised almost absolute brevity....brevity hasn't accomplished shit for me in the past. After reading my VSO briefs and quotes of case law(about 2 pages), I was stunned by the *lack* of argument. 20 years ago I didn't know any better and thought and relied on the VSO(mine is DAV) as the *duty expert*. But like I said, it didn't work then(brevity) and I have little confidence it'll work now. Hell, I just recently found a case cite I think is of *extreme* importance to my CUE claim(Hyder v. Derwinski), and my VSO didn't mention...discuss with me, or even put forth in argument. I met my VSO appeal specialist for the 1st time only 20 minutes before my DRO hearing last June. Opinions, advice? Anyone here win a claim of CUE and if so, how detailed were your assertions and arguments and presentation of evidence? Prop

But it's not just evidence, knowledge of the law...it also matters if they decide to apply the law. Take my mention of Hyder v. Every search I've down at the Court's site(previous decisions) where Hyder was an issue(Dr. recommended follow-up/specialty testing or another exam by a specialist and it wasn't done...), has the Court vacating the Board's decision if Hyder was overlooked or not applied. One of my claims of CUE has that evidence, clearly in the (2)exam reports: the examiner recommended a MRI for my knee, my back, and additional x-rays of my back and consultation with the radiologist( to confirm a T12 fracture that had been seen on every VA x-ray, but which she did not see/comment on). The examiner referenced the need for both MRIs saying "the etiology and pathology can not be determined further without an MRI"...then adds..."I have not ordered however, unless the RO determines it's needed" . The BVA remand instructions specified the examiner was to order and and all necessary tests to determine the etiology and pathology... :-) The examiner with regard to the x-rays stated "It is known a T12 compression fracture existed on films taken in 1992[my 1st C&P exam]" . "The radiologist has not commented on any T12 finding on these films. I will contact her to determine if she can determine. If not, I will order additional x-rays". He did not. Evidence? Can't be any clearer...the MRI's he determined were needed were never ord'd; he left that decision up to the RO. Follow-up with the radiologist OR follow-up films, both he said were needed? Never done. The evidence is there, the knowledge of case law(Hyder v.) by the VA...there. So why did my claim make it past the VARO, then the DRO? In theory, application of the law says it shouldn't...the DRO should have declared a CUE in my favor, right? But reality says no; they have no intention of faulting a final decision by the Board... Propp

Good stuff, thank you. propp