NOD denied and errors to boot! Need opinions

[Navy4life]

I posted this in my other ongoing thread but I want this brought to the forefront.  I was recently denied by WACO DRO Steve Wilbur and I believe I was retaliated because I simply asked Robert McDonald in an email to step in after 6 months of waiting for a decision when the DRO told me in the informal hearing to give him 60 days.  My hearing was 45 minutes long and I was well prepared.  The DRO Steve Wilbur has a very bad reputation at WACO for denials.  I received a call from DRO Wilbur on August 18th, 2016 stating he received my request for a decision.  He told me he would be deciding it within the week but in fact he had already decided it that day!  Now I have yet to received the SOC but I have a Women's Outreach Coordinator in St. Petersburg VBA who is a very close friend of mine and happened to see the denial in my records.  This idiot DRO failed to put a cover letter with my SOC and no date on my SOC.  He simply submitted it to Evidence Intake and never mailed it to me!  If it wasn't for my connection I would still not know and would not be within the 60 days to file the Form 9.  I emailed Robert McDonald earlier this week, firing off my distaste for this DRO and my local congressman.  I plan to further put him on front street when I do file the Form 9.

As for my NOD, I filed it back in 2014 for right foot (5th metatarsal fracture), right ankle condition, and left toe condition.  I am attaching a lot of documents and I know we all have busy lives and I have helped a lot on here and now I need help please!  I need your opinions on this situation.

Original denial for toe condition was on decision letter in June 2014.  They put the denial of the toe condition on the wrong foot!  It was noted on the right foot when it should have been the left foot.  I pointed this out since my right ankle and right fracture had yet to be decided on.  November 2014 received denial for right foot/right ankle and toe condition noted on left toe continued to be denied.  This was after I had a C&P exam July 2013 where I provided TWO DBQ's from my current outside podiatrist stating my injuries to my feet/ankles/toe was all in-service injuries and I was still affected by them to this day.  That was 2013.  I was s/c in June 2014 and was able to start getting treatment by the VA.  My primary had X-rays completed and in 2014 it showed an old fracture to my right foot, the 5th metatarsal.  The C&P examiner made a rationale that stated he noted diagnoses in the C&P exam.  He felt comfortable with the DBQ's from what I gathered.  November 2014, a medical opinion by some doctor I never saw but supposedly reviewed my records determined either I was healed and no further treatment or that I had in-service injuries but no loner had issues.  So I filed NOD November 2014 citing the errors and why I felt the denial was incorrect.  Fast forward to February 2016, I had my informal hearing with DRO Wilbur.  I had submitted a Nexus letter dated February 12th, 2016 from my podiatrist indicating he reviewed all my SMR's and my current conditions were all related to in-service injuries.  During the hearing, DRO Wilbur even stated that a fracture in s/c with no further residuals is at least 0%.  He further went on to review the Nexus letter noting that my Podiatrist stated all three contentions were in fact in-service, continuity continued.  DRO Wilbur told me 60 days to decided.  DAV rep was present.  I felt good......WELL, then I was denied last week.

Here is the evidence I submitted to the DRO for review.  I am just lost for words on this!

 

DBQ ankle conditions_Redacted.pdf

DBQ foot conditions_Redacted.pdf

medical opinion w-o exam_Redacted.pdf

Timeline for NOD hearing.pdf

Nexus letter-redacted .pdf

NOD - Denial Letter .pdf

NOD evidence notes.pdf

[broncovet]

Remember, when you allege CUE, it needs to be specific.  If VA violated 38 CFR 4.6, then cite from the decision or medical exams instances of when they violated this regulation, for example.  

Its not enough to say, "this is wrong", but you need to show which regulation they violated and how.  See the following:

§ 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not.

(a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.

(b) Record to be reviewed -

(1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made.

(2) Special rule for Board decisions issued on or after July 21, 1992. For a Board decision issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record.

(c) Errors that constitute clear and unmistakable error. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable.

(d) Examples of situations that are not clear and unmistakable error -

(1) Changed diagnosis. A new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision.

(2) Duty to assist. The Secretary's failure to fulfill the duty to assist.

(3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.

(e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.

[Navy4life]

Bronco;

Okay so when I fill out the Form 9 I should cite the CFR that was violated regarding the C&P exams under the above rule?

[Navy4life]

7 hours ago, broncovet said:

To summarize:

1.  Get your records fixed.

2.  File the I9, timely even if you can not get the records fixed in time.  If the VA has not responded to your request to amend records, per 3.1579, then so state in your I9.     Later, if the VA does amend the records (or if they refuse), then submit that as new and material evidence, per 38 cfr 3.156.  

3.  Get help as you may be too emotionally involved in the outcome.  Even lawyers get lawyers.  "A lawyer who represents himself has a fool as a client.".  Alex could probably fix this mess for you, probably John Dorle could also, but you have a short time fuse, so file the I9 in 60 days no matter what, even if you have to amend it later.  

How do I file the request to amend my records per 3.1579?  What am I amending?

[broncovet]

I posted the applicable regulation, above.  Simply write a letter, send it certified mail return receipt requested, to the evidence intake center and to the offending VAMC stating something close to this:

                                                                       John Q Veteran  856-123-4567

 

I am the Veteran listed above, and herewith request my records be amendeded, per 38. CFR 3.1579 as to the following errors.   The following exams list errors, they state.....and .... and should state, instead:

1.  Wrong foot C and P dated 11/12/14.  

2.  Mischaracterization of disorder on exam dated 11/12/13

3.  Symptoms omitted on exam date 9/1/2014

 

I certify the above is true to the best of my knowledge. 

Signed                                                         Date 9/1/2016

John Q Veteran

1235 Main Street

Waco Texas 34245

Phone 1 800 need fix 

Edited September 1, 2016 by broncovet

[broncovet]

Your VAMC, where records are kept, has a "release of information center" which manages your records.  Go to them with this letter, and ask that your records be amended to fix the applicable errors. 

Do not be threatening to any employees, be courteous but firm. Never yell or get violent.  You will be escorted off the premesis by security.   

Get in the "release of informtation" line.  When it is your turn, explain there are errors in your medical records you wish to have amended.  If the clerk is unable to accomodate, ask to speak to the supervisor, a copy of your letter in hand, which precisely identiifies the errors in your records.  

If this clerks boss can not accomodate, go to the directors office at the VAMC.  

ASk to speak to the director.  Explain there are errors in your medical records you need corrected and have not been able to accomplish the same through ROI office.  

When you see the director, or his assistant, give him a copy of your letter, above.  

If you are unable to get records amended at your local VAMC, then document this (get names and positions) and email Bob McDonald the details.  

Keep a copy of all emails, include those as evidence for your BVA appeal.  

It should not get that far, but the BVA will have to remand your claim if VA fails to comply with 3.1579 after you request they do so.  

Edited September 1, 2016 by broncovet

[broncovet]

Lastly, if the Board of Veterans Apppeals fails to remand this to corrrect your records per 3.1579, then get your attorney to select from filing an appeal to the CAVC, or filing a writ of mandamus to compel compliance with 3.1579.  Give the attorney full documentation, including your letter, certified post office receipts, the date and who you spoke to in the directors office, notes on what their response was.  Document EVERYTHING.  

Remember:  Your testimony ALONG with documents, such as your letter and post office receipts of mailing is strong testimony you asked the VA to comply with 3.1579.  

You can also write a letter to the VAOIG, but dont do that until you have AT LEAST spoken to the director of your VAMC's office.  (His secretary will suffice).