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RBrogen
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Posts posted by RBrogen
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Yeah during a recent C&P for other conditions, the examiner completed a DBQ and on it noted that my radiculopathy was "moderate" severity for all three radicular groups. I was previous rated for "mild" severity. I had an issue with the claim decision where it had ignored a rating for painful scars of head/face/neck so I requested a Higher Level Review (HLR) and noted the discrepancy and on the same form noted the new severity of the radiculopathy and requested that they consider that a sympathetic claim for increase for radiculopathy upper bilateral extremities 38 CFR 4.124a (code 8513). I sent that on 9/4/2019 along with the copies of the relevant pages of the associated C&P so we'll see how they respond!
It pays to read your C&P and any test results THOROUGHLY!!!
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I'm actually trying a sympathetic claim on an existing claim and will post the results when they adjudicate the claim.
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I have heard of the VA treating a condition noted as a "sympathetic claim" and then adjudicating that with an open claim that discovered it. They did that with my tinnitus because when I filed it was for "hearing loss" and I got SC and rated at 0 but they noted I had tinnitus and told me to file a claim for it. I filed the claim and when they adjudicated the claim, they noted that my original claim for hearing loss should have been considered a sympathetic claim for tinnitus and thus approved the earlier effective date for my claim.
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UPDATE: CUE Final edits done and it is not certified mail on its way to Boston RO!!! NOW WE WAIT!!!!!!
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Not sure what you are asking here @Vet Dog and wife. If you provide more information perhaps we can assist.
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4 minutes ago, Vync said:@RBrogen If you happen to be using Microsoft Word, you can use it to automatically set the current page and number of pages in the header. You can look up how to do it because it may differ depending on the version you are using. I am doing this so I don't have to keep track of it if I insert or remove any pages.
Hey @Vync thanks ... I actually know about the pages but I just put the holder in there to show that I will be doing it because I have to add the numbering after I add all of the exhibits etc. Thanks as always though!
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Just now, paulstrgn said:
Perhaps my math is off, but did you not miss the one year mark by 2 days? If my math is right June 3, 1992 would be your one year mark Hopefully I am wrong.
Not sure on that ... I would have thought it would have been July 3rd 1992 but the process had already been established with an earlier date from when the claim that triggered the C&P occurred back in October 1991. The C&P was a result of the claim filed. This is also a smaller point to the overall claim I think.
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Just now, Buck52 said:
It sure looks like a very well prepared claim to me.
Just have wait and see whats in your BBE??
Thanks Buck ... I couldn't have prepared it without all of the great support here on Hadit! I hope I can share what I have learned with others.
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Thanks @Buck52. I actually noted on the CP Exam dated June 5, 1992, less than 1 year of me getting out on July 3, 1991, that I couldn't do deep knee bends due to pain. I am SC now for bilateral knees, and ankles. This is more of an argument that they didn't follow the laws at the time and if they did they would have concluded that I indeed had SC knees. I am looking for an EED of the Oct 1999 decision rather than March 2019.
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NEW DRAFT ... THANKS TO EVERYONE for your input ... my CUE case has definitely been made so much stronger because of your collective advice and guidance. Let me know what you think about my latest draft!
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3 hours ago, Buck52 said:
Vync
for some reason I had thought you knew to do that? anyway yes its a good thing to do.. not just CUE claims but its good to do it with all claims,
when we organize our claims and help make them better to read the raters love it.
You guys ROCK!!!! I'm making those edits ...
I've also found 38 CFR 3.304(b)(2) to show that the examiner didn't take into consideration that I was Airborne in such that "History conforming to accepted medial principles should be given due consideration." The fact that they did not consider my Airborne status and that it "IS" a medically known fact that parachuting puts abnormal, traumatic pressure on joints, especially knees, feet, ankles, hips and spine and as a result, chronic disabilities usually follow.
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Just now, GeekySquid said:
most of the regs have multiple versions. some are aimed at RO some at BVA some just general.
you use each and every applicable law CFR or USC or PL. whichever has the best language for your claim.
Ahhhh ... well both of the presumption of sound condition regs are pretty much the same .... do you think it makes sense to use them both?
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1 minute ago, GeekySquid said:
there are many possible avenues to look at.
I tried reading that note and get about 3 words.
What I do get further supports your Presumption of Soundness claim, which I think, with 4.6, are your strongest, clearest legal points. I definitely encourage you to review that doc I attached and the law I cited on Presumption of Soundness.
Yeah it is tough reading but base is there where first two words "In Service" and Both knees with arrow pointing to In Service. I am reading 38 CFR 3.304 (b). It sees weird that there are multiple regs e.g. 38 CFR 3.304(b) as well as 38 U.S. Code 1111 for Presumption of Sound condition. Am I just dense or should I only be using CFR and not U.S. Code?
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1 minute ago, GeekySquid said:
jumping in here but off this direct topic.
read
38 CFR 3.304 (b) — Direct service connection; wartime and peacetime. (b) presumption of
soundnessand I wrote this as a general set of guidelines but used your situation as part of an possible way to phrase the claim section.
back to your question to Vync.
in your doc it says
"On page 3 of C&P Exam dated October 1, 1991 (Exhibit G), the examiner noted “Both knees injured
in service from training at Airborne and jumped out of plane caused damage. Never reported it,
never got treatment for it.”It is common knowledge that veterans who are attending elite training such as Airborne course,
avoid reporting injuries so they are not recycled or dropped from the course"did they actually write that you said that?
it presents a challenge to properly address that type of statement in a factual way as CUE requires. You may have to ignore the other general suggestions for this one.
You might try something like
" The C&P record is incomplete. I also informed Dr. Blah Blah, that historically service men were expected to "man up" instead of going to sick call. Elite forces were under greater pressure on this issue than regular service men. Military records are replete with anecdotal evidence of the machismo mindset hammered into elite forces and with the shear number of unreported injuries to avoid being drummed out of training. "
(I am not sure exactly what group you were training for? Airborne Rangers maybe? but be specific about which elite group you were heading too.)
the use of machismo, service MEN and man up are intentional. If you get a female reviewer she will likely agree with the use of machismo as a false sense of identity (current social fad) and recoil at the common concept that elite military were male and only male. If it is a male reviewer, he will likely internalize the pressure of what others think a man is and that elite men were somehow expected to be impervious to pain.
It is a manipulative statement, and if well formed will be extremely effective.
You could try to dig up one of the thousands of psych studies on how macho elite forces were expected to be if you wanted to bolster that claim, but it's value in a CUE might be questionable since it is not in the record already.
The examiner noted "Never reported it, never got treatment for it." See hand written note in attachment. My comment was the "It's common knowledge blah blah blah" but I'm working on a new version of that, something like:
"It is a known medical fact that parachuting puts abnormal, traumatic pressure on joints, especially knees, feet, ankles, hips and spine and as a result, chronic joint disabilities usually follow. Veteran avoided reporting injuries so he would not be recycled or dropped from course."
I like where you are going with that paragraph ... lemme chew on it some.
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5 hours ago, Vync said:
@RBrogen I was curious about one the next to the last paragraph on the first page about "common knowledge". We all know that is true, but it sounds more like an opinion. Worried the VA might try to discount it under "(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."
Hey @Vync ... I was concerned about that as well ... any thoughts on how to word it more definitively? I'm working on a new version, something like:
"It is a known medical fact that parachuting puts abnormal, traumatic pressure on joints, especially knees, feet, ankles, hips and spine and as a result, chronic joint disabilities usually follow. Veteran avoided reporting injuries so he would not be recycled or dropped from course."
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3 minutes ago, GeekySquid said:
read this page very carefully
I believe that my claim does meet the 4 requirements (in my opinion):
- (1) Claim must be a "closed claim" also known as a "final decision" for a CUE review. The final 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.
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1 minute ago, Berta said:
Oh Geez, this is what a CUE broohaha started over-GBArmy gave the best advice on that matter.
This is not a Motion for CUE- that is BVA lingo-the RO does not speak BVA legalize)
This is a claim of CUE ( Clear and Unmistakable Error) under auspices of 38 USC 5109, in a Regional office decision....38 .USC , not CFR
Thanks @Berta! I will send my claim letter as you have seen with new edits along with supporting evidence exhibits certified mail to the Boston RO which should be sufficient to initiate the claim for CUE under 38 USC 5109.
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1 minute ago, GeekySquid said:
at this time, or at least as of yesterday, there is no designated "CUE" form. There is a generic statement in one of instructions that says '...use for all claims", but CUE is different than an claim. IT is an attack.
I have seen some posts that RO's have pushed back on not using different forms for CUE but they all seem to be overcome by stating that there is NO DESIGNATED form for CUE.
I suspect if you add in the EZ you will cause that same confusion but I can't provide proof of that suspicion. I would let them say "no use form XXX" and then demand where that form is officially designated as the proper form for a CUE.
So I am understanding that my CUE letter and supporting evidence will suffice for the initiation of the claim then ... no need to file the full claim since it is really not a regular claim but a motion to correct an earlier decision on a claim.
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2 minutes ago, Berta said:
Vync that is a good point-from you and Geeky Squid too-----
Sometimes it is necessary to highlight in some way, the exact points you need to call their attention to----
Thanks Berta ... I'm actually using highlighter to annotate exhibits so they can't miss where I'm pointing.
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7 minutes ago, GeekySquid said:
it has to be mailed to the RO, Certified Mail Return Receipt Requested. Include all exhibits.
the em dash is the long dash. to type it in Word type two dashes and a letter (no space between the dashes and letter) then hit the space bar. The Word program should automatically put in the em dash as it is a default behavior.
38 CFR 4.6 – blah blah blah
You did the work. I just provided suggestions on format.
I chose to assist in this way because I feel that if I just wrote it for someone, they don't learn how to understand the formatting. If more people know how to format and decide content, then more people can help future vets learn to be their own best advocate. It is just a skill that has to be honed by use.
I have seen @Berta flooded with CUE questions and she has a ton of irons in the fire. If I can help relieve some of that flood, then I will do so. I feel this is the best way I can help. It is my opinion, that the folks who send in CUE's with a strong format are the best possible resource to assist those future vets.
Beyond the formatting issue, I just don't know all the medical conditions and terms and I really don't have time to devote to reading every page of every vets possible cue claim. I don't many would do have that kind of time and built in knowledge across all possible conditions.
If several of us (many? most?) can point that hypothetical new vet towards getting rid of verbal fluff and concentrate on the legal basis, then that vet can learn from many sources with a consistent message.
Expert advice as always GeekySquid! I am happy to pass on any knowledge I gain to new vets fighting the fight, we have to look out for one another. I knew of the long dash, just didn't know that it was referred to as an "em".
Learn something knew every day!
When I send it to the RO, I assume I have to fill out the 526EZ, 2104138 and then add all of the supporting exhibits to the package.
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8 minutes ago, GeekySquid said:
I try to limit my input to format and making the flow point to exactly what you want the reader to consider. It is like leading a pig to a specific puddle of slop. you want them rolling in that puddle and no others.
Overall from that perspective, this current draft is head and shoulders above where you started. I would consider an em dash between the law number and topic; that may seem ticky tacky to you. It would just make it clearer to the reviewer.
If I was asked (and chose to answer), I would echo @Berta in that your strongest claim is in the Presumption of Soundness. That link to VLB is critical to your success. At induction nothing was done to 'investigate' if you actually had a permanent injury. The Dr's notes have to be more than you just saying "I hurt myself once", on a form, to overcome the Presumption of Soundness. That is an area for you to focus on and write the strongest refutation of the C&P examiners claim that your injury is not SC. at best his claim would be that your NSC injury was further harmed by in service events.
I have zero opinion if playing softball on your units team will constitute an "in service" event. I just flat out don't know.
@Vync the level of specificity in citing your claims is all part of my singular focus on leading that pig to slop. The format can/is critical to leading the reviewer to the conclusion you want. We have all heard of the vet who sends in a couple hundred pages and expects the VA to find the problem. That never turns out well. So it is my opinion that drawing them the exact map to the conclusion you want, is in fact, your most effective tool in that shed.
@Berta is spot on in that a CUE at the RO is vastly different than one at the BVA. The BVA operates under a different legal standard across the spectrum. At the BVA lawyers and paralegals and judges look at legal issues with their scope and authority. They have different rules and standards.
At the RO, the standards and rules are laxer. One way to phrase it is that more "opinion" can be brought into play (I know some will object to that characterization; it is just a way to view what they can do at the RO). The RO also has the requirement to Maximize the Veterans compensation and view things liberally in favor of the veteran. The BVA requirement is a bit more structured in legalese and procedure.
If a CUE, a legitimate CUE, can help avoid the Hamster Wheel I don't see the problem using it.
@Berta is an invaluable font of experience and assistance; with all her other things I do hope she keeps weighing in on questions about CUE's and other topics like DIC. She is the Queen and most respected.
Thanks so much @GeekySquid! I've modified the format to have specificity on the exhibit references, page, paragraph etc and feel pretty good about the flow. I guess it is just a matter of creating a claim with a 21-4138 with reference to the evidence and then attaching the evidence to the claim. I assume there is no special claim process I have to do to submit this as an RO claim since the decision was Boston RO and not the BVA correct?
Also, not sure what you mean by "consider an em dash between the law number and topic"
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1 minute ago, Vync said:
@Berta I was talking recently with @GeekySquid about CUEs. I know referencing exhibits simply by using (Exhibit A) can work, but what about being very specific like (Exhibit A page # para #). I have always said spoon feeding the VA exactly what they need can be a good thing. Some of my exhibits are a bit lengthy so it might be helpful to show them exactly where they need to look. Just curious about your thoughts.
Thanks VSync ..... I reference more specific locations in the narrative when referring to the exhibit ... e.g. C&P exam dated September 8, 1999 (Exhibit J), noted on page 2 .... I probably should go and make sure each exhibit reference is as specific as possible.
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1 hour ago, Berta said:
Randy, I think your CUE is swell!
Vync-that is an interesting point on 38 CFR § 4.2- I have never used that in CUE claims- because I feel 4.6 covers a lot -and medical determinations ,if they are wrong, do not raise to CUE level just on that basis- still it would not hurt to throw it in-
I believe the strongest point of this CUE is the Fact that RBrogen had no pre existing conditions listed on his entrance exam and was accepted into service as fit to serve- and was a paratrooper -certainly a well know cause of lower extremity and back issues for many with that MOS.
I didn't leave because , as Buck said I had other issues to wok on- true- and lots of Fall maintenance on my home-and farm.
I left because most of us hard core VA claimants here have "practiced" before the VA at the VARO level by fighting their War of the Words.The VARO level is the best place t get a CUE awarded.
I recall only one veteran here who won a CUE at the BVA, a CUE Motion on BVA decision.
And two widows who filed Motions for BVA reversal due to CUE and lost.
99% of the CUEs we see here occur at the RO level. GBArmy made that point somewhere here a few weeks ago-
if I can find how he stated it, it is well worth repeating.
I am very happy with the excellent CUE advice that Vync, Geeky Squid, GB Army , Kanewnut, Dawsonatl and others here have acquired. I feel I am missing others here as well I should mention...who do understand CUE at the RO LEVEL.
R Brogen does as well!
I only recall one member here who won a CUE at the BVA, as a motion under CUE on a BVA decision.Two widows filed BVA motions but lost.
They did not have basis for CUE even at the RO level.
That is where a CUE should receive a Frontal Attack- at the RO level----
if it is a valid CUE ,there is no need for it to get on the Hamster wheel.
Thanks so much for taking the time to review my information Berta. It means a lot, as does all of the wonderful feedback. I'm attaching my latest, hopefully final drat so I can send this over to the Boston RO. Would you, and anyone else with thoughts on it please let me know what you think about the format and if I'm missing something major. I don't want to loose the opportunity on a technicality.
Just now, RBrogen said:Thanks so much for taking the time to review my information Berta. It means a lot, as does all of the wonderful feedback. I'm attaching my latest, hopefully final drat so I can send this over to the Boston RO. Would you, and anyone else with thoughts on it please let me know what you think about the format and if I'm missing something major. I don't want to loose the opportunity on a technicality.
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22 minutes ago, broncovet said:
Well, there IS a Santa Clause in VA's 4.6, but you dont get Santa's services for free. Va will hire you a doc for a c and p exam, but this does not guarantee you the doctor will write an etiology (aka nexus) statement.
The nexus statement is an "opinion" by the doctor, and, like any opinion, you are not required to share your opinion with everyone. It goes like this: (VA management speaking to doctor)
You see, the VA interprets its own regulations, and enforces (or chooses not to enforce) them also. So, the VA picks and chooses which regulations to force on their employees, and you can guess which ones they choose to enforce: Those that benefit VA at the expense of Veterans.
Yeah I hear ya .... that's why we are forced to dance the VA dance.
START LIST OF BAD C&P EXAMINERS .....
in Veterans Compensation & Pension Exams
Posted
I don't know if there is a place on here or not but is there a place where we can list both good and bad examiners ... for instance in my case the examiner in the Bedford MA VA is HOOOOOORRRRRRRIIIIIIBLLLLLEEEEEE and completely not qualified as proven by my 1 and ONLY C&P there that I documented 14+ errors and even had her boss agree that she f'd up so bad that he asked VA for a new C&P for me. Conversely, Jamaica Plain VA Hospital in Boston has absolutely the BEST C&P examiners in the area. They are thorough and veteran friendly. I've had 3 C&Ps, 3 different examiners, at that location this year alone and EVERY SINGLE ONE has been veteran friendly and each extremely thorough in actually reading my entire file as proven by the pieces of doctors hand written notes that each one found that supported my claim. That's something you can't just search for because the searches don't pickup hand written items at all or well so it proves that they actually read every single one.