Vinsky54

john999: I know it probably sounds crazy, as most of our government could care less about us vets, but if you have your story written down somewhere, or are willing to do so, send it to my congressman, Sam Johnson. He works his butt off for vets, getting legislation passed that forces the VA to act on our behalf. The more ammo he has, the more he can get done. Here's a bit from his bio: "Sam Johnson, a decorated war hero and native Texan, ranks among the few Members of Congress to fight in combat. During his 29-year career in the U.S. Air Force, Representative Johnson flew combat missions in both the Korean and Vietnam Wars. He endured nearly seven years as a Prisoner of War in Hanoi, including 42 months in solitary confinement. A decorated combat veteran and war hero, Sam was awarded two Silver Stars, two Legions of Merit, the Distinguished Flying Cross, one Bronze Star with Valor, two Purple Hearts, four Air Medals, and three Outstanding Unit Awards." This administration is obviously going to do nothing about the deplorable way the VA operates. It will take Congress and the courts if we are to get any redress. Thanks for your post. Vinsky/David

jfrei - That is good news, that the VA is having to contract out to alleviate the backlog. I have proposed the same to my congressman (Sam Johnson, a champ for vets) regarding the claims and appeals backlog; contract them out to private health insurance adjusters until the backlog is caught up. Vets would get a quick response and almost certainly a more equitable one.

Thanks for the responses TexasMarine & Gastone. AskNod: Again you come to my aid. Thank you so very much! (Though I have to admit, you sent me to Google a few times to "translate" the acronyms.) I now have the sense that I may be waiting quite a while longer for a decision. If I am reading you correctly, should the DRO determine that there was a CUE in my original decision of 2002, then it is going to kick my NOD into a chain that involves the VSCM (Waco), a possible review by the AMC, then on to Mr. Murphy? Sounds like a whole bunch of people getting involved to find a way to cut their losses.Based on the research I have done since "talking" to you and Berta, my "by-the-book" rating would be 50% (46 rounded up if I am reading the Schedule of Ratings correctly. Under section 4.110, the several factors leading up to the dumping syndrome cannot be combined with the others. It says: "Ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation." So the bleeding ulcer that damn near killed me and the emergency surgery to stop the bleeding and prevent new ulcers counts for zero. That in spite of the diagnosis of an internist that under code 7348, I meet the criteria for a 30% rating for the results of the surgery alone. Under code 7308, dumping syndrome, I only rate at 40% percent instead of 60% because I have not consistently lost weight for 39 years. Anyone want to explain how you do that?) Anyway, if a decision were reached today, that would mean 12 years, 4 months of back benefits were due. I am assuming every effort will be made to find a way to deny that much of a back payment. Thanks again everyone. This forum has been a real blessing.

My prior topic, "Seeking Advice on my CUE," brought me a wealth of information from some very informed people. I remain grateful. But I have been doing more and more research based on what I learned from them and just ran across this: j. Approval of Ratings Prepared Under 38 CFR 3.105(a) All rating decisions prepared by RVSRs under 38 CFR 3.105(a) require the approval of the VSCM or designee at the Coach level or higher. Ratings prepared by DROs would require the approval of the VSCM or Assistant VSCM if they would effect · severance of service connection, or · a reduction in evaluation of an SC disability(ies). Exception: Approval of the VSCM or designee is not necessary if the rating is the result of a Board of Veterans’ Appeals or U.S. Court of Appeals for Veterans Claims decision. Important: A rating decision must be reviewed and approved by the Compensation and Pension (C&P) Service prior to promulgation if the decision · initially grants service connection with an effective date retroactive eight or more years, and/or · results in a lump-sum payment of $250,000 or more. (See M21-1MR, Part III, Subpart vi, 1.A.5 (TBD) or Fast Letter 07-19.) Reference: For more information on CUEs involving rating issues, see M21-1MR, Part I, 5.C.13.f. The CUE in my case is obvious. It took the help of an attorney who does medical insurance claims to help me read my Service Medical Record, but the denial based upon "no evidence of complaint, treatment or diagnosis" is just plain wrong. So is the conclusion that there is no service connection, as it is also in the record. Problem is, VA repoened my 2002 claim, denied it based upon "no new evidence" and that led to the NOD. Anyway, as I read this, even if the DRO acknowledges the CUE, my claim then has to go to this C&P Service. Who are these people and how many more years can I anticipate waiting? Anyone have any experience with the C&P Service? Thank you. Vinsky

Well everyone. I want to thank each and every one of you for all your guidance, advice and encouragement. Today marks day 325 that my NOD has been "in process," and that is the VA's average processing time at Waco. So... it is now in God's hands. Everything I could add to the record has been added. The evidence is as plain as day, so I just await a decision. Thanks again. David/Vinsky

TR-6 is a fantastic little car. I once owned an MG-B. When I was a kid, dad drove an Austin Healy 3000 mk2. He used to drive in gymkhana events. Fun stuff.

Fortunately, dumping syndrome has been around for a long, long time. Check this out: Hertz made the association between postprandial symptoms and gastroenterostomy in 1913.[2] Hertz stated that the condition was due to "too rapid drainage of the stomach." Wyllys et al first used the term "dumping" in 1922 after observing radiographically the presence of rapid gastric emptying in patients with vasomotor and GI symptoms.[3] Want to see the pertinent part of the latest filing? It's attached if you do. Really appreciate you taking the time to advise rookies like me. It is most helpful VA Extract.pdf

Thank you asknod. More great advice. Thank y'all so much for all the help. For you and Berta both... I have enlisted the help of my best friend who is an attorney. He does insurance defense claims. (We met in the USAF 40 years ago, on the island of Crete.) With his help, I think we have nailed down the language and focused the issue on the fact that the SCR does in fact contain evidence that I was complaining of dumping syndrome while still on active duty (only 18 months post-surgery). This is in direct conflict with the Rating Decision of 2003, which says: "Service medical records do not show any complaints, treatment or diagnosis for dumping syndrome." That was the reason for the denial. I only recently got these records pursuant to a FOIA request. I have submitted this information as part of the NOD (noting the CUE) and am hopeful that now they can reach the right decision rather easily (?).

So now I have an email address and the phone numbers - thank you so very much. Do these people actually answer the phone and/or email? I sure would like to get an answer on when my NOD may finally get a review. IRIS is useless, they completely ignore me when I ask that question - even just asking for an estimate. Based upon your suggestion, I have demanded a C&P Exam. It occurred to me that without it, I have no claim. Because they refused all the evidence I submitted with my second claim (doctor's diagnosis, my sworn statement and my wife's sworn statement), there is nothing in the record to even substantiate that I have dumping syndrome (refused as not new or material). Though I did give them the option to just admit the CUE, include the documents in the case file and skip the exam. I tried to schedule the C&P here at the Dallas VA Med Center, but they said it had to be ordered as part of the NOD; I cannot initiate it. File a form 21-4138, they said. I looked at the form and realized it was nothing more than shredder material. So I filed a demand styled as a legal pleading. Wanna see it? I will attach it. C&P Exam Demand.pdf

Holy crap! My denial came out of Waco, but now that you asked, I look and see that the Evidence Intake Center is in Janesville, Wisconsin?!? The Texas Vets rep filed my NOD in Waco and I have been sending everything there. I am going to resend the entire file tomorrow with a notice that my supplement will be filed in the next couple of days. Am I screwed? Working on getting the C&P exam scheduled.

Good Evening: Berta - I have once again taken your great advice. The re-worked NOD (supplement) is in progress. I now have three bases for CUE: evaluating the wrong surgical procedure in the first denial; failure to consider all relevant information in the SMR in the first denial (as you pointed out); and the erroneous statement that no new or material evidence was provided in the second denial. Further, I have done the research in the Schedule for Rating Disabilities as you also suggested. Here is what applies to me: 7308 Postgastrectomy syndromes: Severe; associated with nausea, sweating, circulatory disturbance after meals, diarrhea, hypoglycemic symptoms, and weight loss with malnutrition and anemia - 60 Not sure if ulcer applies, except that that is what brought about the surgery in the first place. Almost killed me, literally. By the time they got me to Incirlik from Crete, I had lost five pints of blood. I do not currently suffer from ulcers. 7305 Ulcer, duodenal: Severe; pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health - 60 7348 Vagotomy with pyloroplasty or gastroenterostomy: With symptoms and confirmed diagnosis of alkaline gastritis, or of confirmed persisting diarrhea 30 7800 Burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck: With visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement -30 *Scar 5 or more inches (13 or more cm.) in length. *Scar at least one-quarter inch (0.6 cm.) wide at widest part. *Skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.). Question: In the NOD, do I need to argue what I think my level of disability is? Or is that strictly a matter of their interpretation? Is that why the C&P exam is so important? Thanks again. Did you already know of Bonnamassa? Or have you checked him out? Absolutely among the best guitar players ever.

Berta: Yes, I would love the numbers. Forgive my ignorance... What is a C & P Exam? (Since I already owe you a ton, here's a little gift. Based upon your musical tastes, if you don't already know who he is, you really should check out Joe Bonnamassa.)

Applying Berta's wisdom and suggestions, I went back and studied my old records. I have only had them a few months as a result of a request for them that the VA converted to a FOIA request. Regardless, I got them and struck gold. Buried in handwritten "code" in a USAF clinic record is a description of me complaining of the symptoms of dumping syndrome. The VA's argument that there is no military record of "any complaint, treatment or diagnosis" of dumping syndrome has evaporated. Thank God for you Berta - and for the inspiration of Navy4life on another thread. Here's my first draft of the supplement I intend to file. Any critique will be greatly appreciated. Vinsky VA supp 4.pdf

I am again so grateful for what I learn here. My dismay has turned to hope. Navy4life's post about "continuation of treatment" really had me worried. But it had the effect of driving me back to my AF medical records, and there it is! Something I had missed. I went to the clinic about a year and a half after my surgery complaining of the very symptoms of Dumping Syndrome. Though not diagnosed as such, it is clear as day due to the documentation of my complaint. That was the VA's main justification for my first denial in 2003. That there was no record of the syndrome during my service. But now, I beg to differ. Hope is back. Thanks again for the insight. And Buck52, I meant no offense when I made that comment about "the more time I spend on this site..." I hope I cleared that up above. Y'all are very much appreciated.

Meaning i Meaning that I am rapidly losing what little faith I had in the VA. The more I learn, the less I think I will ever survive the process. Certainly no offense to the fabulous resource I have discovered here. I am grateful - more than I can describe at this point.

The more time I spend on this website, the more I fear my claim will likely never get a positive result. As far as continuation of treatment goes, I am going to have pretty much zero. Short of surgery to reverse what the AF did to my stomach, there is no treatment for Dumping Syndrome. That is what prompted me to file the claim in the first place; facing surgery I did not feel I should have to pay for (in 2003, 15+ years after the surgery and 13+ years after my discharge). I have asked many doctors over the years and been told the same thing - the only "treatment" is eat six to eight small meals a day. Therefore, there is no record of "continuation of treatment." 1 and 3 are a slam dunk. The surgery was done while I was on active duty at the USAF hospital in Incirlik, Turkey to keep me from bleeding to death (though they almost blew that too). The "bonus" surgery they chose to do while they were stopping the bleeding in my stomach is the direct and only cause of Dumping Syndrome. I have no idea what to do. Any suggestions?

My prayers are with you. And I am a firm believer in the power of prayer. As the Bible says: "What, then, shall we say in response to these things? If God is for us, who can be against us?" We have right on our side. You shall prevail.

Wow. So much information and so little time (maybe). Why did I not find this place a year ago? It seems many have had good success with the informal hearing process. As my NOD has now been sitting in Waco for 10 months, would I be starting the wait all over if I request the hearing? I think the file I have built and submitted for the NOD is pretty comprehensive and irrefutable, but I would rather see and hear what the VA has actually put in the record vs. what I have sent. What do y'all think? Stick with the DRO review on paper, or ask for a hearing?

Just one more quick note. I do have a POA, who shall go unnamed, that has done zip, zero, nada except fill out the original NOD form (incorrectly). Looks like I got a POS instead.

Thank you again. I will do the research and modify or expand on my NOD as appropriate. I guess the main thing I am taking away from this is that my ignorance is cured. One would think, based upon the law and regulation, that the VA would be doing everything in their power to make sure the vet is getting the benefits he/she earned. It has become obvious that the opposite is true. As I mentioned earlier, my congressman is very involved in vets issues and his staff has been very interested in the roadblocks, delays and incompetence of my claim experience. I will forward this thread to him. (His name is Sam Johnson. This is from his bio: "Sam, a decorated war hero and native Texan, ranks among the few Members of Congress to fight in combat. During his 29-year career in the U.S. Air Force, Representative Johnson flew combat missions in both the Korean and Vietnam Wars. He endured nearly seven years as a Prisoner of War in Hanoi, including 42 months in solitary confinement.") Thank you and the founders of this website for your awesome work. It is greatly appreciated.

Berta, you are the best. Thank you for taking all this time. To answer your questions - 1. There will be no mention of Dumping Syndrome in my military records. The first time I ever heard the term Dumping Syndrome was about six months after my discharge; when I had an episode so bad I hauled my butt to a doctor. That was 1979. I don't have a clue what that doctor's name was nor if he is even still in practice almost 40 years after this happened. 2. What the AF did to me was the way they treated ulcers back in the dinosaur days. A vertical incision was made in the connection between the stomach and intestines (pyloris). It was then stretched horizontally and stitched. If you read my reference in the NOD to the surgical report, where it says "two fingers fit easily," that's what the surgeon was talking about. Normally, that opening is about the size of your pinky finger. The theory was that acid could no longer pool in the stomach, hence no more ulcers. Problem is, if you eat like a regular person and not like a bird, the opening allows food to pass undigested from the stomach to the intestines. The intestines do not like this; they get very angry, thinking they have been poisoned or worse. They then make every effort to evacuate all that food as rapidly as possible. In the period between 30 and 90 minutes after I eat, the initial reaction is almost identical to hypoglycemia; the heart rate goes crazy, I break into a sweat, get very dizzy and sometimes vomit. That is the alarm. I have about five minutes max to get to a restroom because an uncontrollable explosion is going to happen. There is no way to stop it. The diarrhea is explosive - that is no exaggeration. The cramps quite painful. I have embarrassed myself in grocery stores, Lowe's, in my car, in a park, you name it. I have to carefully plan a meal anywhere besides home; restaurants are very tricky. Either we sit and wait an hour after we eat, eat a restaurant close to home, or make sure the next destination is very close by. It is ridiculous. The aftermath sucks as well - I am left with a monster headache, lethargic, dry mouth and hungry (if you can imagine that). 3. There is no extensive record of treatment because, short of surgery, there is none. I have asked doctor after doctor over the years and it is always the same - eat six to eight small meals a day or have the surgery to close up the pyloris. Thanks again. I had read somewhere that I can request (demand?) an in-person interview with the DRO. True? If so, is it useful? Or does it just delay things further? My NOD is now 10 months old. When I first filed it, the average processing time was right at 10 months, so I am hopeful of a decision rather soon. (If you want to see what I filed in 2014, I can post it here.)

I seem to be in deep s*** here. How ignorant to think the VA was in business to HELP vets. Thank God I have a Congressman (Sam Johnson - TX) that is fighting the good fight. At least we may get some relief after 2016. Anyway, I am grateful for the input. What I thought obvious (and I have not posted my 2003 claim), was that the Dumping Syndrome was caused by the surgery done at a USAF hospital while I was on active duty. There is no other cause for Dumping Syndrome other than surgery of this type. The CUE is based upon the fact that in the initial decision of 2003, they stated the laparotomy was not the cause of my dumping syndrome and that there was no history of it in my service medical record. First of all, the laparotomy was never claimed as a cause - it is simply the incision made to gain access to the abdomen. Of course it didn't cause the syndrome, the pyloroplasty did and that is so evident in the record that a third-grader could figure it out. Regardless, the VA never asked for any further information, never asked for an exam, never did anything else and I let it go. Ignorance on my part, I know. I did not take the time to look up laparotomy in 2003; I just scratched my head and said "all these years I thought I had a pyloroplasty." I have never been one to look for the government to give me anything. That's why I never even made a claim until the syndrome got worse and worse and I was told the only remedy was surgery. I did not believe I should have to pay for that. Anyway, further ignorance on my part. What is a C & P Exam? And no, I never received a VCAA letter. I have the entire record on file with the VA that I obtained through a FOIA request. They never asked me for anything - and certainly never offered any assistance. Thanks everyone for the advice and wisdom. Looks like I have an uphill battle.

Berta: You had asked about the decision letters. Here is a redacted scan of both of them; the original from 2003 where they are not even looking at the correct surgical procedure (laparotomy vs. pyloroplasty) and the denial from last year that says no new or material evidence was provided. I have never seen such gross incompetence in my life. Thanks again for taking the time to look at this. David/Vinsky VA Decisions scan - redacted.pdf

Thank you Berta. To answer your questions: No. This is my first post. And no, I have not posted the denial. I will have to scan it to post, but I quote it in the NOD. I am posting a redacted version of my NOD here for you to see. Thank you so much for taking the time to look at this. I am way beyond frustrated. David/Vinsky r_NOD.pdf

My NOD is still pending in Waco. It was filed in April of last year. As it has not been reviewed yet, I can still supplement the record. After reading several of the topics here, I see that there are many willing to help. So, here is the CUE portion of my NOD. Anyone that would be willing to read, comment and make suggestions woould be greatly appreciated. 4. CLEAR AND UNMISTAKEABLE ERROR (CUE) 4.1 STANDARD FOR CUE 4.1.1 Claimant is aware that the standard for proving CUE is stringent and difficult; that if reasonable persons could reach different conclusions in the review of a claim, that no CUE exists. That is not the case here. 4.1.2 The Court of Veterans’s Appeals has held: When reviewing factual determinations made by the BVA, the Court’s scope of review is governed by 38 U.S.C. § 7261(a)(4) (formerly §4061), which states that: (a) In any action brought under this chapter, the Court of Veterans Appeals, to the extent necessary to its decision and when presented, shall–. . . (4) in the case of a finding of material fact made in reaching a decision in a case before the Department with respect to benefits under laws administered by the Secretary, hold unlawful and set aside such finding if the finding is clearly erroneous. A factual finding “is `clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” [citations omitted] Look v. Derwinski, 2 Vet.App 157, 161-62 (1992) 5. GROSSLY ERRONEOUS OR NEGLIGENT READING OF THE SURGICAL RECORD (Claim File, Operation Report, 20 Jun 77) 5.1 In the 2003 claim, Claimant cited surgical Pyloroplasty and Vagatomy as the proximate cause of his Dumping Syndrome. (Claim date unknown, see footnote 1) 5.2 In or about April, 2003, the VA denied the claim, stating, inter alia, there is “no medical evidence (linking) the disability to laparotomy and vagatomy.” 5.3 There is no mention or reference to a “laparotomy” in any document submitted by the claimant. 5.4 Given that the Claimant was citing pyloroplasty, even a cursory examination of the surgical record should have included looking for that procedure. A proper reading of the record makes the fact that a pyloroplasty was performed painfully evident; it is even designated as “principal.” 5.4.1 The Clinical Record Cover Sheet, at section 39 – DIAGNOSES-OPERATIONS AND SPECIALS PROCEDURES states; “Duodenal ulcer disease with hemorrhage. 18 Jun 77 Pyloroplasty. Principal. Clean. 18 Jun 77 Vagatormy. Associated.” (emphasis added) There is no mention of a laparotomy. 5.4.2 The handwritten cover sheet, contained in the record, also in section 39 states: “2. Pyloroplasty and vagatomy” Again, no mention of a laparotomy. 5.4.3 The handwritten Clinical Record, Narrative Summary, dated 25 Jun 77, states under HOSPITAL COURSE AND THERAPY WAS: …”Vag & pyloroplasty performed…” Laparotomy does not appear on this page. 5.4.4 The Clinical Record, Operation Report, under OPERATION PERFORMED states: “Exploratory laparotomy, ligation of bleeding ulcer, truncal vagotomy, Heinecke-Mikulicz pyloroplasty.” This is the first and only time laparotomy appears in this record; and it appears in the same section as the description of the type of pyloroplasty used. 5.4.5 The de minimus importance of the laparotomy is demonstrated in next section of the Operation Report, under PROCEDURE. It says: “The incision was made…”; the only reference to that procedure. 5.4.6 In contrast, the record states: • “The pyloris was opened between sutures…” • “The opened pyloris was packed…” • “…so then the opening in the proximal duodenum and distal stomach was closed in a Heinecke-Mikulicz fashion…” (The above-referenced pylorplasty procedure.) • “This opening allowed two fingers easily.” 5.5 Though not precedential, the following is instructive in this instance, and contains relevant precedent where the medical record was likely misread: It is equally possible that the examiner simply misread the relevant service medical records, in which case he did not properly familiarize himself with or base his opinion on an accurate understanding of Mr. McGowan’s medical history. … Given this uncertainty, the Board was required to return the examination report to the examiner for clarification. See 38 C.F.R. § 4.2; see also Roberson v. Shinseki, 22 VET.App 358, 366 (2009) (“To be adequate, a medical opinion must be based on a consideration of the veteran’s prior history and examinations and describe the veteran’s condition in sufficient detail so the the Board’s evaluation of the claim may be fully informed.”); Reonal v. Brown, 5 Vet.App. 458, 461 (1993) (holding that a medical “opinion based upon an inaccurate factual premise has no probative value”). (emphasis added) McGowan v. Shinseki, 2011 WL 5903831 (Vet.App.) 5.6 In McGowan the confusion was in trying to determine the difference between a sprain and a strain. One can understand how that can be confused, but in this claim, the difference is between a laparotomy and a pyloroplasty. It is really no different than a veteran who suffers disability from heart-bypass surgery to be told there is no evidence linking the median sternotomy to his disability; or the veteran who has a brain tumorectomy being told there is no link between the craniotomy and his seizures. The error in this claim is so obvious and irrefutable, it must be corrected.