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pwrslm last won the day on September 27 2017

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  1. The NP is competent to complete the form. The RO can then ask for the medical opinion from a specialist. I prefer that the actual specialist examine me thats why I got an IMO that cost me $$. The VHA commits fraud all the time. Every encounter they put down information in your medical file that claims they did things that never happened (like go over your prescriptions with you or counseled you about high blood pressure, diabetes, or being overweight and needing lifestyle changes) it is fraud and a felony for falsifying medical records. It happens thousands of times every day but we have become so accustomed to it that its business as usual. That is a Grand Scale!
  2. Once they have a medical opinion about this, you have to seek an alternative opinion to counter it. Gather your records and find a good spine surgeon (Orthopedic or a Neurologist) who is willing to give you an IMO. I started making phone calls and it didnt take long to find one who would do it for $250. This was good price, some of them charge ten times that and more. If the specialist also states you had a congenital deformity, then at least you have confirmation. I was told I had a congenital deformity (scoliosis) 18 months after I hurt my back. It was the US Army playing CYA though. I challenged that in a lay statement, presented info that I had been hurt while on active duty directly from in service treatment records, and gave them an IMO from a specialist. They rolled over and gave me SC in just over 90 days. You only need to balance the issue, the tie goes to the veteran. Congenital deformity would have to have a name and be backed with evidence, so just saying its congenital is not enough. You can challenge that claim and if they dont have anything to back it up, they lose. If your lay statement contains information about the lack of any medical condition noted before enlistment, they also have to accept that as competent evidence in your entrance exam. You would know if you had a medical condition diagnosed before you entered service, and you dont need medical expertise to know it. The same thing goes for lay statements by your parents if they never were told you had a congenital deformity. The accident you were in should have generated information about pain in the neck, and anything that was provided from a medical standpoint to check and diagnose the problem. Any x rays or MRI's would benefit you if they show injury to your neck. All in, you should gather everything that possibly could dispute the decision. One or two items might get you over the hump, but its smart to make sure that they have a tsunami so they cant deny you. Its all leg work.
  3. That's a sticky issue. The CFile contains info that could prove your case, yet they refused to give you that? I would get hot and nasty on that issue fast. A FOIA must be complied with. They can take time to get it done, but it must be complied with either way. Your CFile is not a classified document, and contains information that you should have access to because it exposes the VA screw ups. How long ago did you file for it? If its been some time, you might be able to do a writ of mandamus that forces them to give you a copy of the CFile. Read up Asknod website about this.
  4. Beware. The C&P exams may be only for DBQ's. Any medical pro from a NP up can complete these. For an opinion, the medical pro should be specialized in the field of the subject matter. Pull this challenge with a NP who is doing the DBQ and you will lose your claim. Dealing with a remand is a different and specific situation.
  5. TDIU vs Scheduler

    To see if you are P&T, call 800-827-1000 and ask. If your rating decision shows eligibility for CH 35 educational benefits for dependents, call them too and that will also verify P&T status. ChampVA health benefits for dependents are also a part of the package.
  6. Treatment records of your knee should include xrays from 75 and when you were at the VA after discharge. Get copies. ST Lois archives, request specific dates and location for this. Call them for instructions, they are helpful when you need it like this. VA retires XRays also, inquire how to get your VA xrays also from after your discharge. Neither of these would be deleted, just filed in a different place. Get the statement that the VA has no records from 1975. If they find the XRays, you have proof. You also can use lay statements about this if you have family members who can testify that you hurt your knee. They can also support your statement that your knee was no problem before enlistment. Without objective proof that the entrance exam was in error and that your knee had real problems, the lay statements should at least make this issue in equipoise, meaning in a tie, that you win direct S C instead of aggravation. You were assumed fit at the entrance exam. your knee had no problems. In your statement you indicated that you hurt your knee before but had no damage before enlistment was made in good faith, and it also asserts that you had no actual injury significant enough to be noted. (People fall down and hurt their knees all the time without any injury!) They are not allowed to jump to medical conclusions that way. Get your CFile, check their records. If they have no records showing any disability before your enlistment, and have no medical opinion that a knee injury existed before enlistment, then the RO made a medical decision and that is a CUE. For the RO to take a statement that your knee hurt without any other evidence, to assume that the entrance exam was bogus, and that your knee issue is only aggravated by service is a huge leap of logic that MUST be based on evidence. Your entrance exam proves your knee was not an issue, he has to have more than your statement because that statement denies injury of that nature. Steps for CUE must show (1) Claim must be a "closed claim" also known as a "final decision" for a CUE review. The finald decision must be from the VARO, Veterans Administration Regional Office, or the BVA, Board of Veterans Appeals and was never appealed, and (2) either the correct facts were not before the adjudicator or the statutory or regulatory provisions in existence at the time were incorrectly applied; and (3) the error is "undebatable;" and (4) the error must make a difference in the outcome. In other words, a CUE is not a disagreement with a decision or an argument that VA got it wrong.
  7. Decline the C&P and your claim goes bye bye. You must attend the VA's C&P exam, no exceptions. Anyone trained as a medical pro can fill out the DBQ (disability questionnaire). The VA has several dozen covering most conditions. If they did not follow the requirements, you can attack the DBQ on appeal. What you need to watch is if the RO gets an opinion for service connection from a person not qualified to render the opinion. The qualifications of the examiner can be brought up on an appeal, and that is done often.
  8. If this was a RFE, the EED on the award would be the date of the C&P exam. The date on the appeal would be the date of the orig claim that was denied/low-balled. Let it ride, if the BVA decides in your favor, they SHOULD give you retro back to the orig claim.
  9. So how did you get the STR's? Why didn't the VARO have them in 2007 or 2015? The STR's are in the custody of the US Govt, archived permanently. They have a duty to retrieve all records before they make any decision. Going back to 2007, all of your treatment records should have been in front of the RO when your claim was originally made. The STR's were created while you were active duty, not after, and that means that the records are not new. They existed before 2007 is my point. What needs to be researched is if the VA had a valid reason why they did not have your STR's. The failure of the VA to retrieve the records should allow you to appeal to get an EED. If they did have them and failed to acknowledge them in the decision process, your EED should be back to the 2007 original claim. Did you get you CFile yet?
  10. Painful motion of knee,

    I would look at how you put it in your claim. If you put it 2 claims, one for extension, the second for flexion, then it would be something that I would push. If you think it should have been automatic, you will need to appeal the decision. I think finding a good lawyer who deals with appeals and getting an opinion from him would be smart. You can also research this topic at the VBA and CAVC to see if there was ever an award of this type for pain on motion.
  11. Could try the local VSO. They might nudge a decision letter out of the VARO. Its free.
  12. To be safe, make sure the base etiology linking a condition in service with you current condition is in your nexus letter. I got a copy of the MD's CV as well, to prove he is an authority on the issue. CV is the same as a resume. The language preferred would be like "I have reviewed current medical records and service treatment records of Beachy. It is well established in current medical literature that the (xx condition) ln Beachy's service records is known to develop or progress over time into the (current condition)." Get the date of the treatment in the service treatment records and have MD refer to that incident if you can. Nexus language will make or bread a claim.
  13. unable to start anything

    Schedular can still work. Im 90% and use CH 31 in VR&E. You should be able to get into a college or some type of vocational training that you like. They also have the Independent living services that you should qualify for. Like shop work? Make furniture in your garage. The VA can pay for the tools and get you started. Same thing with a greenhouse, ASKNOD did that one. He is still fighting to get it done, but its a path that he blazed for all of us so you can follow his example. The VOC-REHAB rep you have should talk to you about all of the potentials, and if they dont, research on your own. Find the door, and go through it!
  14. You need the C File. I dint note anywhere in this long thread where you asked the VARO for a copy of it.. They should have records going all the way back to the first time you filed a claim. You need to review the entire file, note every mistake the VA made, and see what you turn up. It is very possible that your original claim contained errors that you can win in an appeal which would give you back pay for the entire 25 year period, but you will never know without the CFile. You can take it to a VA Lawyer for the appeal, and if there are any grounds for you to appeal, I have little doubt that they will pick up and run with it for you because of the sizable back pay involved. They take something like 20 or 40% when you win and should pick you up on contingency. The biggest mistake we make is that we get in over our heads in the appeals process. If the VA Lawyer at the VBA thinks that they can run over you, they will and get the appeal denied. If you have the lawyer on your side that knows the in's and out's of the legal process, it is much less likely to happen. I know that the first instinct for a vet is to follow the good will ad faith in the system, but sometimes when these claims get very complex, we need legal help. The VA will fight tooth and nail and use every dirty trick in the book to not pay you backpay for 25 years because THEY made a mistake from the start. My advice is get that legal representation on contingency, if they lose you wont lose a thing. If they win, you get 60-80% back for the last 25 years.
  15. Convalescence Question

    Make sure you get a letter or note by the surgeon for convalescent time. My spine surgeon wrote that I would be out of work for 3-6 months and it went through without a hitch. If you do not have anything saying you need it, I dont think they will approve it.