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propp3

Seaman
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About propp3

  • Rank
    E-3 Seaman
  • Birthday 07/12/1964

Contact Methods

  • Yahoo
    propp3@yahoo.com

Profile Information

  • Location
    E. Prov., RI
  • Interests
    babysitting and spending time with my granddaughter, lately...revisiting my VA claims post-service

Previous Fields

  • Service Connected Disability
    20%
  • Branch of Service
    USMC
  • Hobby
    going to the range, tactical marksmanship anCQB
  1. 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... :-)
  2. 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 :-)
  3. 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
  4. One issue deals with the failure to adjudicate other diagnoses found on(remand) exam...exactly what one of the remand instructions specified.
  5. 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" :-)
  6. 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
  7. 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
  8. Yes, thank you all. Did some serious editing tonight to reduce redundancy, and to correct an odd spacing thing I do(leaving tail pages blank between issues, beginning new claims on a fresh page). That'll probably cut a good 25%. Still, I don't expect the Board member to read everything :-) They have staff to do that. At the regional level, I have no expectation at all...the quicker I get past them, the better. At COVA later most likely a lawyer will Briefen' my brief :-) But again, an issue not presented to the Board during their stage of the appeal, can not be inserted later(for the Court). But issues raised *can* be perfected before the Court, based on the BVA reading of and response(or lack thereof), once rec'd. Assertions mean nothing without case law and regs to back them up, and demonstrate how they apply within the issues. Thanks again to everyone, Happy B-Day and Semper Fi all my Marine brethren and docs...Happy Veteran's Day to all. Propp
  9. Well, 42 pages :-) but it's not as bad as It sounds. Probably 25-30% is case cites, regulation cites, definitions, and reference to exam notes and findings...not *argument* per say, by me. I considered brevity for brevity's sake...but...after reading additional argument submitted by my(DAV) rep following the SSOC in '95, and before the BVA review(early '96), I was overwhelmed with the sense of "what? that's it?". Brevity didn't have much success then and my rep completely missed issues of fact, law, etc....that I (now) see as relevant. Having read a lot regarding CUE, I decided the opposite of brevity: be as specific as possible, include as much/many cites as possible(applicable CFR/regs, case law decisions, etc) so there is *no* doubt I am arguing based on procedure/regulation/COVA decisions demonstrating what the VA must do, it was my right to have had done, etc....*not* argument about judgment, weighing of facts, my opinion...etc. The VA has a bad habit of defining your argument for you, if you allow them. If they're able to define the argument as *they* see fit, it's also easier for them to later dismiss it...whether or not they realize your rights were trampled...and even if they realize numerous examples of case law support your finding. I have no intention of letting the VA define my argument. Also, now that my claim will move to the BVA, I've got to include as many issues that I think might come up later...so the Board might address(or ignore). If all of part later goes to the Court as an additional appeal, I can not raise additional issues then; COVA only reviews the actions of the Board. So this now, is my bite at the apple. I don't want to take 2 or 3 bites when I can take a dozen, as long as I can justify...Incredible claims demand incredible evidence is a wise axiom. I'm afforded a lot of latitude pro see(even with DAV rep, I'm still pro see), and I want to roll out as many issues now so they can be reviewed still later, by COVA(if BVA denies all), or some. I don't want to kick myself in the head 6 years from now and think "holy shit, I should have included that argument back in 2015, when I had a chance"...only to begin a new process, later. And CUE is the only way I can attack earlier decisions(now final). Brevity has it's merits but in this case, I concluded otherwise. CUE's must always be specific, detailed, and address the law/reg/right that was not followed or denied. And it has to be overwhelming undeniable, obvious...as well as address the harm done. And, there has to be a remedy you're seeking, from the Board(or later, obvious to the Court). Brevity isn't gonna do it for me... :-) Whether or not the VA even bothers to read my arguments at the VARO or DRO level is insignificant to me. They churn out boiler-plate responses that don't even address the issues raised. But the BVA has to explain their decisions thoroughly, pro-con, remand, post-remand, credibility-given, evidence-weighed, etc., and cite the rationale so that it's easily understood, in their reasons and basis. Just my 2 cents(or should I say 2 dollars and 22 cents :-) ) Propp
  10. I spoke with a office in providence specializing in veterans law. Basically, they said they review, take(?) after the BVA stage. They said it's important to see the actions of the BVA, the end decisions made, and the Boards explanation. They recommended I try to work in as many issues as possible(for the BVA) because if it goes to the COVA, I can't really raise new issues then; COVA more or less reviews the actions of the BVA, and how they will deal with my appeal/// Propp
  11. My copier is copier only. I will try to find my decision at the BVA decisions cite and cut 'n paste into a document file.. Propp
  12. I've included in my new appeal a claim that the '95 diagnosis was new and material evidence, and my complaints to the examiner then)'95), constituted an implied claim of such. I doubt the BVA will agree, but I'm trying to work in a way sneak continuity of symptoms/chronicity...so I can provide future evidence)not allowed in a CUE) and later, argue an earlier effective date, when this goes to the COVA...which I fully expect on at least. I also included argument that my CUE claim July 2014 and further correspondence(Oct 2014) also implied a claim of new and material evidence within that addendum, that CUE claim, that the current VARO should have recognized and responded-to/ruled in the denial correspondence. Again, the argument is that I presented the evidence, identified a desired outcome(compensation), and rec'd no response thereof, or.., application for a new and material claim by the VARO. This argument again, gives me opportunity to present current evidence of my knee condition as it stands now rather than await a decision. It may work or not; but either way the evidence will be submitted. If not, I can later argue to COVA the issue was raised upon appeal(important to raise as many issues on appeal to BVA) and still argue to COVA to decide the EEF Propp... Berta, please see my latest post in this thread and the attachment, and let me know what you think... As far as the 'raise the most issues on appeal' concept? I'm also thinking about asking the BVA to rule also during my appeal on another request(my arguments are not yet complete, please see file attachment): Whether or not the Board, would specify..allow, and remand exams related-to my case, or explain within the body of their decision, if it would be appropriate for me to request any future exams be recorded, on tape and/or video. *I* consider as part of the VA's duty to assist. YES, there exists an expectation of privacy. But the VA is a fed agency that often records testimony to ensure accuracy, and those employees that do so during the performance of their duties have no expectation of privacy. I have often complained about the inaccuracy of communicating info to a VA doc., only to read something different in an exam report....*attributed* to a veteran, relayed as his/her comments, description of symptoms. etc. I would prefer at *any* time, my comments during exam, those of the VA MD, be recorded to ensure the utmost of accuracy. And a VA examiner is not your private MD; IMO during a mandated exam, their exists not doctor-patient privilege. And, once rated...VA care at your local VAMC also becomes potential evidence related to a SC condition, or a potential claim later. Veterans IMO should be afforded the opportunity when any VA exam relates to a SC condition or potential claim, to have that exam recorded...verbally, or videographically, if they(the veteran) chooses so. What do you think? If my case goes to COVA, I have to make the argument on appeal to the BVA, otherwise it won't be an issue(considered by the Court). Propp
  13. Update: Had my DRO hearing Jun 19, 2015. The DRO listened and recorded, asked me to submit updated medical evidence for my(service-connected) back condition(20%). In Oct, I got my denial from that DRO hearing, and my VA form 9, which I completed and mailed within a week. Always knew my case was gonna be dealt with at the BVA level, at a minimum...but somehow I hoped the DRO(de novo) would see the logic of my arguments, and shorten things by ruling in my favor. Not gonna happen, I see now. My form 9 was vague; I left open the 'issues' section with simple comments that I would submit an addendum in the future. That addendum I've been working on since: an expansion of my previous arguments made since July, 2014, new arguments and specifics, and mostly..editing language so it can't be misconstrued or used against me later. The point of my CUE argument has always revolved around the remand and exams and adjudication(after remand) etc, 1995. Secondary arguments for other CUE was that the VA had the duty to adjudicate findings of a new dx(then) regarding my left knee, even though my knee claim had been denied in 1992...becoming final a year later, since I failed to include with my appeal to the BVA. I also expanded my claim/s of CUE to include that original process, early 1992. Recently I've been adding and citing applicable case law to my appeal to the BVA, no easy task since my service rep rarely return-contacts me when I call/fax, etc. They seem as little-interested in reading my(very-thorough) correspondence/arguments, as the VA. All that cite searching led me to find something tonight, I hope is a game-breaker....but I don't want to get my hopes up. The VA examiner in 1995 twice recommended 2 MRI's, neither of which was performed. He even stated that both were necessary to fully explain the etiology, pathology, of both his dx he made of my knee(internal derangement of the left knee)...and my back condition(already service-connected then...appeal was to increase %, which the RO eventually did...to 20%. But the VA never comp'd me for a T12 compression fracture, I feel should have been included in the decision; stupid me, I never pressed the issue then(diagnostic code 5285 provided additional 10% to be *added*, not combined, for fracture of a vertebral body with demonstrable deformity confirmed on x-ray) The case I refer to is Hyder v. Derwinski, 1 Vet.App.221, 225 (1991) and a cite in another BVA nr: reads "The US Court of Vet Appeals(Court) has held that VA breeches the statutory duty to asst a veteran when supplemental testing or a supplemental exam recommended by VA's own physician is not performed" Exactly one of the issues in my('95) arguments of CUE...that the VA C&P examiner twice recommended a MRI of my knee and back, that he never ord'd(he even states in his exam notes he has not ord'd, and will leave it up to the RO) :-) Do I have a game-breaker hear? No? Or, will the BVA just ignore. Anyway, I've been long. I'm attaching a file with my appeal argument thus far(42 pages worth) which I think is about 75% finished(please ignor my notes-self on it's last page). I have to work in this new argument, and still have to final-edit all my typos and comp-goofs when done. Anyone who'd like to read and offer advice or more case law, regulation that's pertinent, please do so. There's no way I can possibly include all the additional evidence I've submitted, exam report, articles(written by physicians), co-worker statements(attesting to my limp) and statement by my wife(about meds, her observations over 27-8 years), etc. ANY advice and critique is welcome, esp regarding case law and regs you know of applicable as of 1995 thanks, Propp BVA APPEAL IN PROGRESS.wps
  14. So I filed my NOD at the DAV 3/3/15 in response to the Denial letter I got Jan 22, 2015. That letter basically said no to an increase of my back condition, and, that my CUE claims from July 2014, were not CUE's...yada yada yada as far as the explanation...basically, the definition of what a CUE is followed by the VA's explanation that they're not. Expected that, and with the NOD asked for a DRO review. Earlier in Feb, I'd sent off a letter explaining further detail and including new medical evidence for the back denial, and a list of what I'd like them to do under 'duty to assist' regarding the back. I also dropped off my new claim for secondary conditions, and my claim to reopen the knee claim based on new and material evidence. I was surprised because my DAV rep tried to discourage me from filing the new claims. He really doesn't seem up to speed on my file and to tell the truth, don't even think he even read my CUE claim from last July...which I worked very hard on for over 2-3 months of research, before composing; 44 pages of(very) specific and detailed arguments, another 35 pages of documents from my c-file to demonstrate/back up. He tried to tell me since I was filing a NOD and DRO request, it was best to wait with the new claims till after the DRO decided the current issues, otherwise they'd deal with one at a time. Maybe that's the case, maybe the VARO will deal one, then the other...but I disagreed that it was better to wait and insisted on filing the new claims...to preserve the filing date. And, I don't see why the VA can't deal with concurrent issues: CUE, denial for increase SC condition, and(new) a request to re-open(new and material) and secondary-condition claims. The way I figure, I'm using different avenues of approach... Then I get another letter from the claims center in GA telling me they rec'd my letter from last Oct(to the local VARO) disagreeing with the decision then that my claim of CUE, was not a CUE. Huh? Gave me 60 days to respond as far as my appeal. So I requested another DRO hearing/review...pointed out my response to the Jan 2015/denial, and that DRO request, and asked that the DRO review that set of issues and cojoin whatever CUE issues were pending. As far as the response and submission of the new evidence, re: the back? I must have surprised someone at the VARO taking a look: I got a call asking why I wanted all the films of my x-rays taken at the VAMC San Diego...20 years ago when I lived in CA. I explained that part of my request(duty to assist) included a request of a radiology view(here in Providence) of all my back films as a comparison study. He said that they already have the reports. But I pointed out that I already had one example of the radiologist failing to see a finding(until 3 years later) so her reads were suspect. And, I pointed out that despite the fact all mention height loss,etc and a bunch of other findings...none of the reports ever measures that height loss, grades some of the findings, etc; something the VA's rating schedule uses as a metric for assigning %. I pointed out how the only way to accurately measure the progression of those findings was a comparison study of all those films, from the beginning, something that had never been done by the VA during any time period. He(from the VARO) tried to make it sound like a big deal until I told him films almost *never* get destroyed(since they're medical evidence), and transfer from one VAMC to another shouldn't be any problem...films get transferred all the time, and all the films belong to the VA, anyway. He started to say "but if I can't, would you..." , at which point I cut him off and told him "If you can't, or won't, just respond in writing why, and it'll simply become another issue on appeal, regarding duty to assist". So, he promised to do what he could. But I'm gonna shoot off a letter and call VAMC San D myself just to discuss, authorize/whatever is needed, AND...check and see if they've been contacted in any way by anyone at the Prov. VARO... I'm also gonna look into getting my old military films; I've requested the VA obtain those as well but no one has contacted me yet about those. According to the NPRC in St. Louis, they have millions of old X-rays from former service members... Anyone else ever ask the VA to provide the old films under 'duty to assist', of obtain them themselves, from NPRC?
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