free_spirit_etc

Clear and Unmistakable Error. If there was enough evidence that the left foot should have been granted, you might be able to file that they clearly made an error.

"The explanation was, there wasnt any evidence showing I had any injuries in my "right" foot. My Right foot!! My claim and all evidence clearly stated my "left" foot." I hope you can file a CUE for that.

"I find it odd, certain parts of the government are just about stuffing cash down the throats of people. Food stamps actually sets up marketing campaigns in areas of the country where they think the service is underutilized." Believe it or not the VA actually spends quite a bit on advertising too. http://www.marinecorpstimes.com/article/20131016/BENEFITS04/310160015/VA-halts-new-spending-criticized-ad-campaign http://fedscoop.com/va-spent-up-to-3-million-on-facebook-ads/

I have been surprised by some of the BVA cases I have read where the remand specifically said the specialty the person needed to write an opinion, and then the RO sends an opinion from someone else - AND the BVA will accept it and note that the RO had knowledge of who had enough experience to write such an opinion -- and they trusted their judgement. Something just seems very wrong with that.

I agree that VSOs can also be part of the problem, especially if they have bad attitudes. My VSO absolutely ruined my hearing: ** Disclaimer -- I am not saying that ALL VSOs are part of the problem. But some of them are...

Ahhh - here is the post I was looking for Where the doctor noted the vet "disobeyed a direct order" to get out of his wheel chair without assistance.... God grant me the serenity....

And if you work in a VARO... or as a VSO VSO -- And I agree the mud at the wall remark and insinuation that you would lie about your shoes is completely uncalled for --- As well as the attitude of why wait 24 years. Things have changed since 1983. People weren't as informed about filing claims as soon as they got out as much. And many many many vets just put up with lots of disabilities until they start getting pretty bad. Granted - it is often harder to go back and prove claims after many years out of service. But that doesn't mean that it can't be done. And that doesn't mean that a vet doesn't deserve to have their claim developed to see if the in-service injury is actually the cause of the present disability (and if you injured your foot AFTER service, they would be pretty quick to jump on that as the cause) and that doesn't mean the vet should be treated as if they are lying, or throwing mud at the wall to see what sticks. EVERY vet deserves respect and assistance in developing their claim!

If it is any consolation -- I believe you know what shoes belong to you...

Why wait 24 years to file a claim for a condition that was caused on AD? Many people do. The examiner was looking for chronicity and that's why she asked the questions she did. I don't think there was any complaint about questions being asked - it was the attitude in which it was asked. Bringing flip flops to a examination, any doc won't use them. How do they know that they are yours? I guess they trust you not to lie about your shoes. I think veterans should be considered competent to testify to what shoes are theirs. They will look at the shoes you are wearing to see if you have excessive wear and/or an abnormal gait. Then they should advise you to wear your normal shoes. Or note how much you have worn the shoes you wore to the exam. I don't like it either when a veteran comes into my office and says the examiner was rude and not listening. I will go to the end of time supporting and assisting in anyway I can, but the examiners know who is throwing mud on the wall to see what sticks and what don't... JMHO What????

My husband filed his initial claim for disability when he retired - so his ORIGINAL SMRs were sent to the VA. So the Records Center doesn't have copies. Maybe your original SMRs have been held at the VA instead of the Records Center.

You definitely need to get a copy of the entire C-file! The nurses notes may or may not be yours. My husband's C-files had copies of medical records of other veterans.

"The VA is dealing with a highly intelligent and pissed off woman." LOL - That is the worst type of person to have to deal with. There actually are many good people at the VA. But there are also a lot of people whose sole purpose is to deny claims. Some of them are doctors. That is crazy about the CLEP tests. It is amazing how people just make random decisions that effect people's lives with so little effort.

"the IL doctor quotes from my "nurses notes" on 8/2/83 that I had no issues with my hearing" Good! You have evidence that your hearing was fine - right up until the lightening strike!

The thing I am finding more and more as I research is that they are probably not idiots. They often know exactly what they are doing. They might very well have noticed that the incident was in October. That is why they didn't mention it. Granted, they might not have noticed. But often times they do. They know exactly what to pretend to not notice. If they noted the October incident they would have to go through more trouble to deny the claim. It is much easier to just act like they don't see that. I noticed in one of my husband's claims - the C&P examiner clearly stated that my husband underwent an x-ray of his sinuses on September 3, 1982 and the x-ray showed ethmoid and maxillary inflammatory changes of the chronic type. The RO decision said - "A review of service medical records showed diagnosis of sinusitis in September 1982. A chronic disability associated with sinusitis is not shown by service medical records." When I got my husband's SMRs -- I see he was treated for sinus problems multiple times. The RO acted like it was just that once, and failed to mention that the C&P examiner noted that the condition was shown to be chronic in service. I don't think they were just being lazy, or being idiots - I think they were intentionally distorting the information in order to deny the claim. My husband and I did not get married until April 2006. He died in February 2007. The regulations for DIC state: http://benefits.va.g...d_indemnity.asp 3.54© Dependency and indemnity compensation. Dependency and indemnity compensation payable under 38 U.S.C. 1310(a) may be paid to the surviving spouse of a veteran who died on or after January 1, 1957, who was married to the veteran: (1) Before the expiration of 15 years after the termination of the period of service in which the injury or disease causing the death of the veteran was incurred or aggravated, or (2) For 1 year or more, or (3) For any period of time if a child was born of the marriage, or was born to them before the marriage. (Authority: 38 U.S.C. 1304) My husband retired in 1998. Our 2006 marriage was well within the 15 years required. My first denial for DIC stated I was NOT eligible because the regulations state in order to be eligible For 1 year or more, or For any period of time if a child was born of the marriage, or was born to them before the marriage. They left out the condition under which I WAS eligible and just reported the other two. They HAD to notice the 15 years part. It was the FIRST one. They didn't "miss" it. They intentionally left it out. So though they might ACT like idiots -- don't underestimate their skills. They are smarter than they pretend to be and know exactly what they are doing.

Since they have lost a bunch of your medical records, you should get a heightened benefit of the doubt. That doesn't mean it is easier to prove your claim, but they are supposed to more fully explain their decision and discuss all the evidence that supports your claim. Actually - they are also supposed to try to obtain the documents and let you know when they have exhausted their efforts - and inform you of OTHER evidence you might be able to submit. But I don't think they actually do that unless you push them. (My husband's discharge physical is missing from his file... who would have Thunk it!) But you will have to decide how much you want to push that. If you think that there might be something in the missing records that will support your claim -- then you might want to push for them to search for the records. If you don't think there is anything in the missing records that will help you, then it will just add a lot more time to your claim for them to pretend like they are trying to obtain the records. But make sure you get the C-file before getting an IMO and have the doctor specifically state he / she has reviewed the C-file.

Here is a good term to keep in mind: "repeated supination trauma". It is really too bad that if this has to go to the BVA that you can't just ask the judge to walk on their outside of their feet for a few months and then go to a gynecologist and see if their ankles hurt... I bet they would grant the claim in a heartbeat! (Probably after only a couple days of walking on the outside of their feet...)

MUSICK -- That sounds interesting. Sounds like something my son would like (and would play loudly...).

"It just infuriates me that any old doctor is "qualified" in the VA's opinion to give their opinion on things outside their specialty." I agree. It would be one thing if they sent you to real doctors who were really trying to actually figure out whether your injury in service caused your problem. But to send you to someone who isn't even qualified on your condition to see if they can find a reason to deny your claim is such a slap in the face. I think - Dang it! After serving her country they send her to a gynecologist to deny her ankle claim? Doesn't sure deserve better than that??? The VA refused to even acknowledge the major portion of my husband's claim that his cancer STARTED in service. He said his doctor told him it started in service, and that it could ALSO be connected to his asbestos exposure. I think they know it dang well started in service - so they just ignored that part. They changed his claim from TO INCLUDE asbestos exposure to only DUE TO asbestos exposure despite him continually telling them they were ignoring the part of his claim that said it STARTED in service. So they got an opinion from a doctor that said that asbestos exposure wasn't related to his cancer because he was not exposed to asbestos. He based that on the fact that my husband wasn't in any occupational screening or medical surveillance programs. He failed to mention that such programs were not even in existence until the late 80's (my husband was an electrician from 1970 - 1983). And dang it! Even when the RO finally conceded that my husband WAS exposed to asbestos (after my husband died) they STILL used the same dang 2002 VA opinion to deny the claim. How in the world can you concede someone was exposed to asbestos and then still use an old medical opinion that said he was not exposed to asbestos to deny the claim? Then - they finally acknowledged the part where my husband said his cancer STARTED in service. And they sought an opinion on that. But heck -- the doctor wrote four sentences and didn't even bother having it typed. And he just stated that the viral illnesses my husband had in service were not early manifestations of his cancer. I thought what a slap in the face! My husband deserved better than a doctor taking two minutes of their time to quickly scribble something to deny the claim. (But at least they never sent him to a gynecologist....) But -- yeah -- It is totally disrespectful to treat veteran's claims and lives so marginally. But -- on the upside -- it is easier to defeat their nonsense with a decent IMO. On the downside is that vets have to PAY for doctors to say what the VA doctors should have known. One doctor that wrote an IMO for me said he was appalled that they were making a veteran's widow fight for this. He said ANY doctor should know that it is more likely than not that my husband's cancer started in the service. I think they DID know. That is why they danced to the side of the issue -- and just concentrated on whether my husband's upper respiratory infections were early manifestations of his cancer.

Be sure and tell you nephew to make sure every little thing gets documented (because you never know what might come back and bite you in the butt later) and to get copies of everything... I am sure you know that now...

"The only C&P I can access is a DBQ where the VA had a doctor who never talked to me "review" records (and lives in ILLINOIS - I live in GEORGIA) recommend denial of my hearing issues, so No.. it was NOT favorable." Ugh! The VA examiner did not even examine my husband before opining that he had no apparent residuals from his lung cancer surgery. He specifically noted my husband had no shortness of breath, despite the fact the pulmonary function tests done at the same facility the same day reported he had dyspnea on hills and stairs and frequent wheezing. It is definitely starting to look like you might need an IMO. One good thing is that many of the VA examiners don't take the time to really explain things well (because that would require them to not only look things up, but to also actually find something that supports what they are saying) and so a doctor that practices real medicine can often blow them out of the water will real medicine type stuff. It is aggravating though - because when a vet claims a lot of things when they get out -- they are milking the system. When a vet tolerates stuff until they can't tolerate it any more -- then "they first complained of pain MANY years after service." It is a real Catch-22. But it looks like you might not be able to count on the VA to take care of you on this one, and might have to build your case yourself. It often helps to view BVA cases on similar conditions and see what they said and why they were granted or denied. Many times it is because the VA examiners give unfavorable opinions and the vet just has their own word (which never counts) or a couple of journal articles with no opinion to back them. Do you mind sharing what the C&P examiner said? You can remove any personal info.

This is the kind of stuff you can be up against with the VA: http://www.va.gov/vetapp13/Files2/1313673.txt "The physician also concluded that the Veteran's left foot pain was not related to any problem or injury to the right foot, to include any treatment therefor. The physician noted that, from his 35 years of experience and a review of the medical literature during that time, he has never seen even a suggestion that an injury to one foot would be expected to cause a problem with the other foot. The physician stated that even patients with a lower extremity amputation who do not use an artificial limb do not report having a problem with their other feet." By the way... thank you for your service! (The VA might forget to tell you that..)

I am not sure I would just focus on the sesamoid bone removal either. I would broaden it out to foot injury. With the claim that you injured your foot in service -- to include shattering your sesamoid bone, it broadens it out a bit to include any other way your foot was injured. I would try to keep the focus on "I injured my foot in service, since then I have had an abnormal gait, my abnormal gait has effected my ankles, knees, hips, etc." If you let them stay very narrow, I am sure they can find all kinds of things that say the sesamoid bone doesn't effect the hip."

You should also be able to get copies of the C&Ps / x-ray reports / etc. directly from the center that did them. Is the C&P exam that you have access to favorable?

You should be able to get a copy of the C&P exams from the VA. In fact, I would recommend it. Even if they are favorable, the RO sometimes distorts them. I am thinking those might be available on ebenefits; but I am not sure. They didn't have ebenefits when my husband was alive - and I don't think it is available for dependents. You should be able to get copies of the x-ray reports from the VA also. They fact that the foot doctor has to fit you for special orthotics for your shoes should be in your favor on the claim.

I think the continuous part would have more to do with was your problem continuous, or did it become progressively worse. That can be especially difficult to prove in claims where there has been a long time between service discharge and filing a claim. They will often try to say your condition is from intercurrent causes. If you can show you injured your foot in service, and the doctors say you have a current disability and that it stems from the foot injury, you will be fine. But if they say something else (either that you don't have a current disability or that it isn't from the injured foot) then you will need to get a private doctor that is willing to write a statement in support of your claim. I wonder why they didn't have the same doctor that assessed you knees and hips assess your ankles.