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

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OldJoe

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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 by OldJoe
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Berta, when I was stationed in Germany at Rhein Main we had airbase ground defense training.  They pulled out some MRE's.

Back then we were all under the impression that these things were supposed to last forever.

What a laugh, we found a bunch of them that has started to "swell up" like balloons.

And yes the few of these they opened up had a wonderful aroma ...

I think outdated c-rats would have been much better.

Green eggs and ham anyone?

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Got to love technology (imagine of Old Joe beating head against wall),

eBenifits are down, archive's computers are down, I really hope their service provider isn't the same as the one responsible for building the universal care website...

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  • HadIt.com Elder
On 5/21/2016 at 2:46 PM, Berta said:

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. :wacko:

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.

 

 

"In Vietnam they probable ate C Rats left over from WW2 "

Actually those that i saw were from the Korean war!

At times, even those were preferable to the slop served up in the mess decks.

 

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YUK!

Chuck I met up with one of our former hadit members here, Philip Rogers, years ago when he was in NY.

He still ordered C rats by the case from somewhere because he loved them and we discussed Pho and Nuc Nam which he also still loved...and he gave me a great gift that is still on my PC desk...with all the other military related stuff...it was

A P 38!!!!!!

Do they still issue P 38s? I always forget to ask my daughter. She said the MREs on a bivouac she was on ( USAF) were delicious.

She said one was a shrimp meal and the other one was lamb stew.    ...... yeah right....

I have some MREs and used them as a prop for a presentation I did at my church. I sure wont ever eat them though.

Good thing you didnt eat them OldJoe...I dont think food poisoning inservice equals any VA comp.

 

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