Need help determining the best way to proceed with my claim. Possible CUE

[OldJoe]

Need help determining the best way to proceed with my claim.  I am currently working with a VSO but I know I have to be my own advocate.  My VSO seems to be competent but he won’t do anything unless I say so (I understand why).

 

If everything I have learned in these last several months is correct and I am interpreting the requirements for claims correctly there were mistakes made in the original decision. 

 

First mistake being mine by not filing a NOD, though I am not sure an appeal back then would have fared any better.

Second mistake, filing a new claim for vocational rehabilitation without a nexus letter (in hind sight only learned of the need for nexus recently).

 

Third mistake, not filing a NOD, not that it would have mattered I hadn’t provide any new and material evidence.  (That darned nexus thingee strikes again).

 

The biggest question now is the best way to go about the appeal that will provide me the greatest chance of success without forcing the issue of the dreaded “C.U.E.”  I have read too many horror stories of vets that failed proving “C.U.E.” 

 

I feel I have information that shows that there were mistakes made in the initial decision process.  The task; putting this information in a form that will withstand the rigors of the appeal process and can be used to support my claim.  I don’t want to simply just say you all goofed fix it.  I tried that back when I applied for the VA Vocational Rehabilitation program, obviously, that didn’t work.

Here is the breakdown of what I think are the facts as I see them:

 

1)      A letter from the VA confirming my application for benefits which is dated September 1, 1995.  I was discharged June 30, 1995.

 

a)      If I have interpreted the rules and procedures for determining eligibility this is within the 1 year period of presumption.

 

i)        Unless this is a newer rule, but even then, doesn’t that help me?

 

2)      The VA Rating decision

 

a)      From the letter itself:

 

i)        1. <content deleted because it has no bearing on the errors noted>  “The examiner indicates the veteran's condition is mild. Based on this a 10% evaluation is assigned effective 7-31-96, the date of claim since the claim was filed over one year after separation from service.

 

2. Service connection may be granted for a disability which began in military service or was caused by some event or experience in service. Service connection for back condition is denied since this condition neither occurred in nor was caused by service.

 

Service medical records for the period 1-28-84 to 5-23-95 show treatment for low back pain on 9-20-90.  The x-rays did not how any degenerative changes or fractures. The condition responded to treatment.  There is no evidence of a chronic back condition in service. The VA examination dated 9-12-96 at VAMC Kansas City, MO shows no postural abnormalities or fixed deformities. The musculature of the back is normal. The range of motion is normal with no objective evidence of pain on motion. The straight leg raising test is normal. Since no chronic back condition is shown in the service nor on the VA exam, service connection for a back condition is not established. “

 

b)      Noteworthy items:

 

i)        The record used was for the earliest evaluation I had for my back not the most recent.

 

(1)   As far as I can tell there were no x-rays for this evaluation listed in my medical records.

 

ii)      The only x-rays mentioned in my military records are in relation to the last evaluation I had for my back.

 

iii)    The most recent entry in my medical records concerning my back contains statements such as “recurring”, “mild scoliosis”, “numerous evals for this problem”, and x-rays

 

iv)    The greatest error being the fallacy that, and I quote, "There is no evidence of a chronic back condition in service".

 

3)      My Medical records

 

a)      There are nine pages of medical notes pertaining to my back.

 

i)        The pages contain six separate evaluations and one script for light duty not to lift greater than 10 lbs.

 

(1)   Two of the evaluations were follow ups

 

b)      The only record I can find where x-rays are even mentioned is the latest evaluation for my back (maybe I missed something I will check yet again)

 

c)       The last (most recent) entry contains wording such as “recurring”, “mild scoliosis”, “numerous evals

 

I understand that unless I obtain a nexus letter I don’t stand a flipping chance of getting my case reopened.  Unfortunately I cannot seem to find any medical professional that is willing to write me even a lame one.

 

That said, in my research I have found a BVA decision that basically stated that since they (the BVA) couldn’t establish if the medical records that would have help in obtaining a favorable outcome were present at the time the decision was made the claim is still considered pending.  This in spite of the fact that the decision stated that records reviewed included everything within the stated period reviewed. Citation Nr: 1508730 Decision Date: 02/27/15 Archive Date: 03/11/15 DOCKET NO. 13-10 512.

 

Then there is title 38 and the various sections that deal with everything that I have mentioned.  Though it isn’t like I totally understand the legal jargon in it, just that everyone keeps quoting it.

 

I guess the biggest thing is; is there a way to get a DRO to review the claim and C.U.E. themselves without having to go through the process of getting a nexus letter and getting my claim before the BVA only to have them remand it back to square one because of what I see as obvious mistakes.  And, with all of the stuff I have read in my attempts to understand, I am not sure what to do and scared sh…less of doing the wrong thing.

If I am correct in the precedence set by the BVA my claim has actually been pending for about 20 years.

 

Edited May 19, 2016 by OldJoe

[pwrslm]

Get on the phone Monday.  Call every medical office in your area that deals with spine, spine surgery, scoliosis, etc.  (only use a chiropractor as last resort) First question you need them to answer is if they can give you an independent medical opinion, then how much is it going to cost.   Answer whatever questions they ask to get your answers.

Did this in April 2014, in about 30 min I had an appointment scheduled for $200-400, depended on the x rays they needed.  Ended up at $250, VA x rays saved me $$.

 

Do your legwork, outline all the medical info in your service file related to your back (this is where you have the 9 pages of stuff you detailed above), highlight it all in yellow for the Dr.  Same thing with your recent medical file, VA or otherwise.  Give him a brief, polite written explanation, what you need done, and also a sample letter for the VA that is considered a "Nexus Letter" with an explanation of the lingo that must be used.  If you have x rays or MRI's from the VA, get them on CD from your local VAMC.    Then get it all to the appointment.  If they say no way possible, listen to them.  If they say yes, there is a connection, you have a specialist with a professional opinion and that is something the VA will not overcome so easy.  If they give it to you, ask for the Dr's  curriculum vitae, and you are ready.  Good part is, on re open, there is a good shot that you can get an effective date back to the original claim.  

If they ignored info in your SMR, and failed to address it, giving no reasons or basis for not using it, not only is it probable that you will get the EED approved, but its also a back door to a CUE as well.  As you state there were 9 pages of records on your back issue, but they cite only one single incident, it would appear (IMO) that they ignored some of it.  They key is, if that info was before the rating authority, and taken into account, is it sufficient for an average person to believe that it would have changed the decision in your favor?   If it is, then you win.

Did they have a medical professional state that because there was nothing on your x ray in 1990, that your back had no problem?  If not, they actually provided a medical opinion.  Asknod posted on this a while back.  This matters because x rays dont show damaged disc's.  Only an MRI can do that.  An injured disc can cause (secondary) scoliosis over a period of time, and an x ray cannot show the cause of scoliosis either.  If the VA rating official came to his conclusion, without a valid medical opinion to cite, then you have a solid case for reopen as well as CUE.

This would be new evidence to reopen your old claim.  It also might behove you to get a real sharp lawyer to put your paper through, if they really screwed the pooch, a legal ace would get it resolved much quicker than trying to navigate this system on your own.

 

Gluck.

 

Edited May 21, 2016 by pwrslm

[OldJoe]

Thank you SO MUCH pwrslm, it is good to hear something that is positive for a change.

So, many times I have just wanted to break down, become a blubbering fool, and just give up because this is the "ALL POWERFUL and MIGHTY" VA we are talking about that never makes a mistake.

Now, to be honest, I want to break down a blubber because there is a glimmer of hope that isn't just my imagination. 

I am just very grateful that my wife and kids aren't around to see me right now.

This stuff is just really screwing with my other 10% portion of my disability (which was the main reason why I got out in '95 under the SSB program).

I know I have a long way to go before this is over.  But every step I take, no matter how small or seeming insignificant, brings me one step closer to what I hope is a successful outcome.

One little bit of information, I was in contact with Mo Senator Blunts office, I gave a brief synopsis over the phone and they are going to be sending me a form to fill out.  And if necessary they will inquire into the matter.  She told me that they don't talk to the same people that VSO's and the like talk to.  I know I cannot count on this to help me because I need to still do the "leg work" to demonstrate that I am being as involved as possible and not just taking the easy way out.  But it is nice to have another little bit of ammo that I might be able to use if the situation warrants it.

 

[OldJoe]

Notice many people mentioning things about tangling with the VA over certain issues is like getting into a knife fight in a dark alley.

As far as I know the first rule of knowingly getting involved in a knife fight is to bring a gun (or have an individual with a properly sited scope watch your back).

Caveat of that of course is that spit-wads do not constitute proper ammo for a .45. 

Historical example (I may be mixing up a few facts) when Kunsan AB was overrun during the Korean War it was found that in the panic that ensued the armorer issued the wrong ammunition to many SP's that were assigned to defend the base.  As a result defenders were later found to have been trying to load incorrect ammunition into their weapons.

 

[Berta]

Interesting...about the Korea problem.I will check that out.

My daughter told me her M16 jammed when she was in BT, 'just like Dad's did a few times in Vietnam",  she added.

I suggested maybe she was trained on the same M 16 he had in Vietnam.

One point my AMU courses sure taught me was ,in battle, there is always confusion and panic. Mistakes happen.

And I bet our AD are still using old materiale , and such....In Vietnam they probable ate C Rats left over from WW2.

I learned that our best weapons as claimants are two fold.....the regulations themselves and the Internet.

And of course Hadit.com! This site should be a training program for the ROs.

 

"Having covered some of the potential issues with getting my IME is there anything I can bring to the Dr.'s attention so I don't fall into the trap that the nexus itself is considered not "new and material" .

A Good IMO/IME doc will follow to the letter the advise here at hadit on getting an IMO.

It holds the key words the doc needs to state, along with a full medical rationale.

They will need copies of your SMRs, all medical records, VA and private,and a copy of any C & Ps the VA used to deny you with.

I would give the IMO doc a copy of their actual decisions too.

VA honed in on a finding that this was not 'chronic' in service.His IMO will have to give a medical rationale that it was, and that it remains chronic.

 

 

[broncovet]

Old Joe posted, 

"As far as a possibility of a nexus letter, 99.9% sure there isn't one.  But on the 0.1% chance there is, you are correct that I should check."

I take this to mean you dont have your cfile, and/or you have not checked.  Yes, I know.  I wanted to skip the ordering of the cfile part, also.  I was wrong.  I was also wrong that I did not have a nexus letter TWICE.  The first was with hearing loss, and it was clearly there.  Next, was just a few months ago, upon digging I found a nexus between sleep apnea and MDD.  

You dont want to leave this to chance!!  Its your life!   Over and over, I see Vets try to avoid ordering their cfile, and I have never seen a good result from taking this shortcut.   Its always a bad result.  If you contact an attorney, I will guarantee that he/she will want to read your most recent decision and will always get the RBA (cfile).   

Doctors dont always tell us what they write down.  It can be better or worse than we think based upon what the doc says.  Skipping getting/reading your cfile will almost never get you the desired result.  

[pwrslm]

They really should take the VA and force it to bring claims into line with their non adversarial mandate.

 

Over and over, I see similar cases where the VA intentionally omits facts in medical records that the VA has in its possession, or should have, which would justify granting service connection for conditions resulting from Active Duty.  I would hate to see the percentage of claims that have gone through this over the last several decades because it would expose how millions of Vet's and their families were kicked to the curb because of a lazy, or inadequate, rating processes.  The law says they have to read, and account for, all of the facts contained in a Vet's medical history, both current and historical, yet all too often, they dont.

Edited May 22, 2016 by pwrslm