Jump to content

OldJoe

Chief Petty Officers
  • Content Count

    224
  • Donations

    $0.00 
  • Joined

  • Last visited

  • Days Won

    1

OldJoe last won the day on June 11 2016

OldJoe had the most liked content!

Community Reputation

28 Excellent

About OldJoe

  • Rank
    E-5 Petty Officer 2nd Class

Profile Information

  • Military Rank
    SSgt

Previous Fields

  • Service Connected Disability
    50%
  • Branch of Service
    USAF
  • Hobby
    puttering around tinkering

Recent Profile Visitors

The recent visitors block is disabled and is not being shown to other users.

  1. VA is playing nasty, they won't let DAV print out contracted C&P results for vets. I have to go and file a FoIA request. That smacks of cheating in my book. If the DAV can see it then they should be able to provide it to the service member they are representing. I don't mind filling appropriate forms for it and signing documents, but that is a load of crock that they cannot provide me with that information (6 month average processing time) so I can assist in making a proper argument and provide any supporting details to counter something that may be presented in a negative manner thereby affecting the outcome of my claim.
  2. Just got off the phone with DAV in St Louis, they suggested that I submit a letter outlining the details (as mention repeated previously) so that their counsel can use that when preparing their argument. I just need to remember not to go into excruciating detail (like I tend to do) so they can do their work and prepare the argument. Like how they can totally ignore the orthopedist's letter that directly connected the knees to the military. And how between 1996 C&P diagnosis for knees, current C&P diagnosis of degenerative arthritis of the spine (earning me 40%), letter from nurse practitioner stating about weakness in lower extremities being cause by current condition of back being related to the military has anything to do with gait. (What they used to counter the nurse practioner's letter). Um, yes, I am just as puzzled, don't have any clue where that came from, I don't remember stating/claiming/submitting anything about gait. Maybe I did (need to check her letter again), but I really don't remember stating it anywhere but here. (Wouldn't that be a trip to find out they were using this forum against us... But that is pure conjecture/tinfoil hat thinking...)
  3. Sorry for being confusing, I have been trying to chronicle what has been happening in my claim and subsequent appeal. When I first started my I had this wonderfully [stupid] idea of trying to get the case for my back reopened by claiming secondary knee condition. Unfortunately I had difficulty finding a Dr that would conduct an IMO/IME before my VSO up and sent in my claim. Needless to say what the outcome was... Twist of events, after sitting on the rear burner for 3 years (average I hear) I finally given an appointment for a new C&P. During this C&P I show the Dr the exact SM where it stated that my condition was recurrent. End result, they grant me 40% for degenerative arthritis of my spine but deny my knees. Since then I have gotten a letter explicitly stating (one sentence) that the bilateral knee arthralgia was "at least as likely as not" related to the military. Really just based on the original diagnosis of 1996 C&P and the fact I was Security Police for 11 years (a lot of flight line walking and other "fun" military activities). So that takes what I was claiming as secondary and the knees become directly connected (really hadn't anticipated that when this whole thing started). I tried to call them out on making the mistake they made back in 1996 (my first claim where they denied me service connection thus no rating). They kindly informed me that they made the decision based on the criteria of the time. OK, they got me there, except for one thing, they never "rated" me, they denied me. So, there is still a CUE, I just called them on the wrong thing. I have other records that indicate that I did display "limited motion" in "all directions". Which is ammo for raising the rating from 0%, which is what I would have been awarded had they granted me service connection back in 1996. But they didn't and my current argument. To further complicate this twisted mess, I can find dates in my C-File that indicate that I may not have miss the one year period like they stated in my initial denial back in 1996. I did fill out paperwork after the one year period, but there are dates in my C-file that indicate that the process had started before then. To be quite frank, except for the most recent letters from the nurse practitioner (specializing in spinal conditions) and orthopedic specialist for my knees, everything is based on facts already present in my SMRs/C-file. In some ways, you could say this whole claim is one big CUE. If it wasn't for a friend from a squadron reunion saying I should go revisit my claim(s) I wouldn't have even thought of doing any of this. I would have been one of those tried and gave up long ago vets. And as I find out the "then" vs "now" aspect, this claim seems to take on more of a keystone cop aspect. No worries, it does help to hear other's trails and tribulations. It lets me know that I am not alone, that others have or are going through similar situations. You couched everything you said in the correct manner (I on the other hand haven't in others' threads and sincerely apologize). In the end of this whole process, I hope people can find bits and pieces to help them through their process. What to do, what NOT to do, things to consider, things that may not seem like much that could mean a lot, ...
  4. The only thing that bothers me (though I do not have the opinion from the DR they got a second opinion from) is if pain can be caused by my gait being affected then how can they say my gait isn't affected by my back condition? Especially when scoliosis is noted and scoliosis does affect gate. Not to mention, I didn't think anything in my appeal mentioned gait (could be wrong need to reread). The nurse practitioner stated weakness, which is a symptom of degenerative arthritis of the spine. This should have set off all sorts of red flags requiring other examinations. Instead they simply deny it... Nothing to see here folks move along...
  5. This is basically how I started my claim. Don't ask, long story, and I shouldn't have done what I did to try and get my back reopen via back door by claiming secondary. Though it sounded smart in my head when I started this fiasco, but it has twisted around so bad that even I get confused. I still don't know how they could turn around and grant me for my back but deny my knees as secondary. Granted I still don't know all the mumbo jumbo/entomology but I am learning. Going to be working up claim for hip next and legs if they don't in the end remand that part for another C&P so that they can get measured. My very, conservative estimate both legs less than 30 degrees flexion in each leg (20% apiece). With other measurements already taken for knees, should end up very close to 100%. But unfortunately need to go before law judge to review (hopefully no further or else we are looking at 6 year wait).
  6. Sorry, for taking so long for getting back. Got admitted to hospital Thursday (1 AM ER visit) because my heart decided to play formula 41 racing car (A-Fib). Everything seems cool now, though get to join the beta blocker and blood thinner club... Thanks for the insight. Sounds like I have a few options on how to argue this. I do have knee pain (knee arthralgia) and hip pain (actually started recently but has been getting worse, osteopath asked if I had ever had an MRI of it, that is a bit foreboding). What is really weird (frustrating is more like it) is the dates that I have found in my records are correct, there is all the reason to believe my initial denial back in 1996 should have fallen withing the 1 year grace period for service connection. Which this whole mess kind of meaningless. My bilateral knee arthralgia should have been rated under arthritis, not being a medical professional specializing in any of this that could mean anything from 0, 10, or 20% (probably 0%). The documentation for my back from this period should have rated me anywhere between 0, 10, or 20%. Original C&P stated opinion of "slightly disabling" but service records show that during flare ups it was worse. So should be able to argue for higher. Yes, the year period for appealing that ruling (denial of service connect) has long since passed. However there mistake was one record that did demonstrate by itself that it should have been service connected without my producing a nexus letter (it was what got me my 40% rating for my back). Their denial during my "DRO" phase, now "RAMP"/"new and improved" system (now they can deny your claims 3 times as fast), that there was an error was that the rating on my back was based upon the correct rating system of the time. Should have clued in right there that something was off. But, bottom line still is that they DIDN'T rate me, they denied me service connection. Now if I had been granted service connection then my argument wouldn't mean a hill of beans. Would I have argued it back then, honestly don't know. But this is here and now not then, so that argument goes out the wind too (I hope, if I am wrong please inform me). But while on this subject, since they issued me a rating for my spine shouldn't they have measured hip and knee flexion because it deals with the spine? They did when they did my very first C&P all those years ago. Also just stumbled onto the 1998 CFR for rating. CFR-1998-title38-vol1-part4.pdf
  7. This is a bit premature but I remember the St Louis DAV telling me that the second opinion (assuming it is the one they used to counter the nurse practitioner's opinion) stated that the current condition of my back had nothing to do with my gait. However from the denial of my first CUE they state the following: Granted I have to get all the information, but if they say that my condition may result in abnormal gait, how can they say that the condition of my back doesn't affect the gait? Which isn't what they nurse practitioner stated but that I showed signs of weakness. Which may have been the intent of the second onpinion (in which case OK, they succeeded). But doesn't this then bring up that they have identified another potential issue (my gait) that should have been rated? And thus ordered a second C&P to measure that? Or, am I just barking up the wrong tree here?
  8. After calming down and re-reading everything. I think I still have a shot at CUE. guess I do have to thank the DRO review for dinging me on the "rating criteria at the time" aspect. The fact is they did not grant me service connection even with the medical evidence that it was a recurring issue. If they really wanted to mess with me they could have granted me the connection not the date, and then I would have had the appeal the rating of 0% based on the diagnosis of the first C&P examination. Now at least I can bring other bits of evidence into the argument that my effective date should be much earlier. Granted, purely anecdotal and most likely not admissible in the DRO appeal but it does bring up serious concerns as to when may initial case may have started. First I have my letter dated September 5, 1995 stating they were in possession of my claims for benefits (I exited the service June 30, 1995), and that they would work them as fast as they could with the current backlog. I distinctly remember thinking that at least I was in the system. We all know that the VA doesn't move very fast. There are a few instances in my records that contain dates prior to the July 31, 1996 date where they officially recognize my request for vocational rehabilitation (funny exactly one year one month beyond the presumptive service connection). Notice the July 10, 1996 date, granted still after the one year presumptive service, but makes you question how long had it been running through the system before that official "RECEIVED" stamp. In short, given 7 to 10 days turn around for anything to occur in the VA if everything happened perfectly under conditions of high backlog, someone requested my medical records before the one year period. Not to mention the form on which it was stamped seems kind of peculiar. Not really much in the line of evidence but it does create some doubt as to when I should have received an effective date. Also there is the entry that my case was a "TRAINEE CASE" this should have been a major red flag that errors could have existed when the first claim was filed over 20 years ago. Dated August 14, 1996. If I am not mistaken trainee cases can be error prone. Then there is this little gem, further adding weight that I started this whole process before the one year expiration (just noticed this). Claims don't start instantly and I hadn't applied for a VSO to be assigned (heck I didn't even know what one was back then) My C&P for my first claim was conducted back in September of 1996 which means their statement of case was later than that.
  9. Could you take a look at the last couple of posts I made?

    I think I just completely blew it (the CUE) based on all of the wrong assumptions.

    1. Buck52

      Buck52

       Unfortunately I  am not familiar with your case

      I don/t  know if this is first appeal or if your at the BVA?

      or when  you filed  CUE and for what?

      YOU may just have to wait and see what the decision will be  and you can post what they based the decision on?

    2. OldJoe

      OldJoe

      Thanks, talked to DAV Rep today, about that and getting exams.

      It is my first appeal (DRO process where they have the special pixie dust and fairy wand with the power to correct anything they messed up on since day one when Jesus walked the Earth).

      Now it is time to gear up for the BVA, go in loaded for bear.

      As for getting the exam and other documents. VA came down on the DAV for printing stuff off, so DAV up and stopped printing any of it off.  Got to got through VA for it.  VA is getting down right testy (it's BS).

      After calming down I realized that all isn't lost on the CUE.  In the denial, they made one mistake...

      They never rated me, they denied me.  Yes that is the diagnosis, but that isn't a rating. 

      If they had grated me a zero percent rating and I didn't appeal then yes I would have been SOL.  But since they denied service connection, it is very arguable then that with the other information which presents reasonable doubt in the ways of rating (how ever that legalese stuff goes) I stand a chance of winning it.

      Just have to be VERY CAREFUL on how it is worded for the BVA.

      Then there is that other bit of information concerning the letter I had stating they were working on my benefits 3 months after I exited the service.  That may be enough to get everything even my knees (which the old C&P exam 20 years as also denied but diagnoses as bilateral knee arthralgia).  If that letter is good enough then my effective date goes back to the time of separation and knees get re-figured in (under rules for arthritis if I am not mistaken) at another 10% for pain.

      Still a lot to go yet..

      But all hope is not lost.

      Also plan on getting this claim tagged so that congress gets to pay attention to it, especially with how this new "system" is going to "help" us vets out so much.

      They just proved with mine that they are going to do the same thing they have done in the past, just at a quicker pace.

      If I can I am going to try and cause a stir with it so we vets can get more help from VSOs.  If the VA is going to streamline it then it only stands to reason that we vets and our VSOs need to be able to "our part" in making sure that our claims are right so that the VA can best leverage the new system.

      Will it work, probably not, but somebody has to start throwing down the BS card on this sham.

    3. OldJoe

      OldJoe

      One other thing, is the information I dug up on how to figure out what rating schedule posted anywhere?

      Does it need to be posted some where?  If so what would be the best way to format it,  there are a lot of Federal Registers that deal with Title 38 and not just with the rating schedule.

  10. OK folks, went from thinking I had a great shot to having absolutely no chance in light of the evidence presented here. Is there any hope or am I just plain S.O.L.
  11. I still feel I have good grounds for my CUE and even though I don't consider what they have down to be in line with "duty to assist". But as everyone knows that line is one of the biggest jokes going. Though I probably do owe them a bit of an at-a-boy for denying my CUE. I should have picked up at the start the fact that they specified that they rated me under the correct system. Though how they could have correctly rated me when it was by my records alone that got me my 40% degenerative arthritis of the spine. Rules state that you need new evidence to reopen a claim, I didn't supply any for my back I had simply filed on a "Hail Mary" hoping I could get them to reopen my back by claiming secondary on my knees because of my back. Go figure, they denied my knees but granted me my back. Here is the SMR that should grant me at least 10% if not 20% because of noted muscle spasms (well probably not now that I saw one Item in my very first C&P) Makes guarded movements More on spasms Spasms and limited motion in all directions The only thing that may hurt me from my initial C&P exam (I guess I am pretty well screw aren't I?)
  12. Talked to my rep and I got the very distinct feeling that the only thing I can do now is wait for my denial paperwork. Others can probably confirm this but the general impression I got was though I might get an A++ for effort being proactive and being a squeaky wheel, I am only hurting myself at this point because all the VA will do is fire off some boiler plate letter stating they just finished and are in the process of finalizing the claim/appeal. And to top it all off, I found out I messed up with my CUE. I should have taken the hint when they stated that they "correctly" rated me under the system at the time. I thought my research had been thorough enough but evidently scoliosis wasn't added to the list until 2003. It took me quite some time digging to figure out how they went about amending the rating table. It is done in dribs and drabs but they never publish a yearly update of the rating percentages. You find these updates in the federal register and there are hundreds of these updates. Luckily at the bottom of the rating percentages they list the dates the system was amended, go through the dates and find where they added what you think you should be rated as. If it is there great, if not you have to go back to the next full table. The full table I found was the 1964 percentages rating system. Even though I find to believe any of what they have done falls within the area of "duty to assist" I guess I do owe them a bit of thanks for shooting me down now before I go before the board. Now I know the correct system to argue my CUE under. I find it hard to believe that they could have "correctly" rated me when the only thing they used to use as a service connection after they had denied my claim over 20 years ago was my service records. Rules state that you have to have new and material evidence that can be used to support my claim, I didn't. Oh well, now back to the game...
  13. If anyone is interested in figuring out what they were rated under I finally figured out how to find the information. At the bottom of the rating system you will see when the rating schedule was amended. Check the federal register for each of the dates listed until you find where your rating should have fallen under. Here is what you should be looked for under the rating schedule. For mine, I thought scoliosis had always been there, but when I went through the rating schedule date by date I founds that that had not been added until August 27, 2003.
  14. Still think I have a good case, should have been rated under 5295 with bouts easily at the 20% range (when using the comparison for sacro-liac injury). Though whether my records will support that or not we will have to wait and see.
×
×
  • Create New...

Important Information

{terms] and Guidelines