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RBrogen
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Posts posted by RBrogen
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Here's the latest draft of my CUE w/o exhibits attached. Thanks in advance for your input.
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Scenario: C&P exam for bilateral knee issues. The C&P examiner wrote the attached "yellow highlight" in my exam. The rater denied my claim for service connection stating what is in "blue background attachment". If the rater knew the examiner didn't mention etiology, is it not a requirement for them to ask the examiner for an addendum and an opinion? I can't find an actual opinion DBQ in my C-File for this exam ... only the C&P exam. Note it is from 1999.
Thanks in advance for any insight.
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1 minute ago, Vync said:
That's awesome!
I have had a few rough drafts and posted them over the years. After getting advice and learning more, I looked back at them and determined they would have crashed and burned. Need to make them airtight.
Yeah there are some very experienced folks in here and I'm never one to think I've cornered the market on the best approach. As you said, if you just throw it together it will get shot down because VA has experts looking for anyway they can to deny your claim.
Just now, Vync said:Have you thought about tossing in 38 CFR § 4.2 Interpretation of examination reports? If they failed to accurately interpret your examinations, might as well make sure they know. The combo of 4.2 and 4.6 seems to go hand in hand.
Wasn't aware of that one but it sounds like it is exactly the area where "numb nuts" screwed up!
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1 hour ago, Vync said:
@RBrogen I'm in a similar boat as you. I am working on a couple of drafts. Looks like you used a template similar to what is found in the CUE forum. I like the approach of stating how the VA violated each regulation or law. I'm working to fine tune my wording for brevity and maximum impact. Will be posting my revised version very soon.
I am thinking of sectioning off each law to improve readability for both myself and the VA. I know it is probably not necessary, but the current version makes everything appear to run together. You cannot visually tell where each section starts and ends.
@GeekySquid advised me to make the exhibits a bit more focused so they don't have to read through the entire exhibit. Instead, you can tell them exactly where they need to look to find the pertinent evidence.
For C&P exams, something like: (Enclosure # C&P dated XX/XX/XXXX page # para #)
For regulation or opinions, something like: (Enclosure # page # paragraph #)I am not sure if the VA scans documents in as black and white, grayscale, or color. I assume they probably do not use color because it takes up a lot more space. If they use black and white, some of the content might end up being washed out. I realized this when I started scanning in my own service treatment records. Some of the handwritten medical records where more difficult to read when scanned in black and white, but in grayscale (256 gray colors, 8-bit) they came out perfect.
@Vync Yes I combined a couple of different template approaches with what I thought made sense as a first draft. I've received some great feedback already, including from @kanewnut and @GeekySquid. I'm working on a draft revision now and will post that based on the great feedback.
I recently got my c-file a few weeks ago and there are documents in color in that so the scanning must be color by default.
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3 minutes ago, kanewnut said:
I think that is much better.
Added the edit to the draft
Thanks kanewnut!
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7 minutes ago, kanewnut said:
This is a claim for CUE, Clear and Unmistakable Error, under provisions of 38 U.S.C. 1111 and 38 CFR 4.6.
Shouldn't this be CUE under 38 CFR 5109A and they violated 38 U.S.C. 1111 and 38 CFR 4.6.
Thank you for the insight kanewnut. Should it be something like this then:
This is a claim for CUE, Clear and Unmistakable Error, under provision 38 CFR 5109A for violation of 38 U.S.C. 1111 and 38 CFR 4.6.
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1 minute ago, Buck52 said:
RBrogen
I know Ms berta would look at it but not sure when she will return to hadit?
she is in the process of getting her 3CUE's claim evidence gathered up and also doing PR work for the new BW Navy veterans these are just among some of the things she is very busy with...She might pop in here any day but just in-case she don't you know why.
Asknod may pop in and look at it...for ya.
Hang in there my friend.
Thanks so much for the info Buck! I'm sure Ms. Berta is wicked busy! I've already begun to receive great feedback and will begin making those adjustments. I'll replace the original draft once I have those edits done. Thanks again as always!
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I hope @Berta has a chance to glance at this ... I would truly appreciate her expertise as a gut check.
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Had posted a note in another part of the forum but wanted to post here in the success stories. I had been at 20% for over 20 years and finally decided to fight the fight by filing a claim November 2018. I was awarded with 80% and a new found education to the VA system. I had several other conditions cued up and sent in the next volley which was screwed up by a C&P examiner that shouldn't be in the position but I got to 90% in spite of her incompetence. I fired off a couple of supplemental claims and was awarded 100% P&T backdated to April 18, 2019. Very thankful for all of the great advice here on Hadit! Now I've got my eyes on filing a CUE for a bogus rating decision in 1999.
- poohthewinnie, Kihr and vetquest
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God bless you Alex! Sticking up for those who can't stick up for themselves. YOU ROCK!
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Congrats! So glad to hear you didn't loose your home!
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Just now, paulstrgn said:
You may want to look at your document again and think about redacting more information about you. Reading through it there seems to be a lot of personal information still in there. Just a suggestion.
Hey Paul ... thanks for the response. the reason I didn't redact addresses and such is that none of the information is accurate any longer as addresses etc have all changed. Also, info on my parents is no longer valid as they have both passed away.
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Hello Everyone,
I wanted to post this draft CUE motion here to get your opinions on strength of case, format and any other comments. It has been redacted to remove my social.
General Overview:
I am service connected since March 2019 for neck, bilateral knees and ankles among other things. The knees are the condition I am primarily focusing on at this time.I had 3 full physical medical exams with no pre-existing conditions noted. The first exam was when I joined the Florida Army National Guard September 16, 1985. The second exam was when I transitioned to the regular Army on April 29, 1987 and the third exam was when I went to Airborne physical on March 13, 1989. I injured my both knees during Airborne training, especially my left knee when I landed wrong on a jump due to wind. I did NOT go to sick call or report it because there was no way I wanted to be recycled or told I couldn't come back ... which is a common theme with these types of training programs. I also had an injury documented in STR for right knee MCL strain a few months before I got out. I left the service because a few months after injuring my knee, I blew my back up and had a slipped disc and was discharged on July 3, 1991.
Not knowing anything about the VA, the DAV rep I had said file for your back so I did and was granted 20% for Low back syndrome as soon as I got out. In 1999, I filed a claim for increase in low back syndrome as well as bilateral knee condition. I had arthroscopic surgery on both knees and multiple instances of reports from doctors referring to the injury as service connected. I was denied service connection for both knees as pre-existing condition on left knee and no chronicity on right knee. I believe the rater completely ignored 38 U.S.C. 1111 as well as 38 CFR 4.6 in ignoring a preponderance of evidence supporting my claim. I believe had the rater applied the laws correctly as well as reviewed the evidence available to him at the time, it would have manifestly changed the decision.
I'm attaching my information in pdf format to make it easier to read. Than you all in advance for taking the time to look it over.
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2 hours ago, GeekySquid said:
LOL. Buck has good ideas but you quoted me LOL.
LOL with you 2 how can I quote wrong, you are both great!
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20 hours ago, GeekySquid said:
Any evidence or record that is in the possession of the va is in your c-file
Whether it is tabbed under the specific claim is a different story.
As is whether it makes it to the records management center to be included in our copy of the c-file
Thanks so much Buck! I think my case might qualify for cue and meet all of those pre-reqs. I'm going to post a draft and would love for you all to give me feedback on any aspect of it (approach, wording, formatting, evidence presentation etc.).
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23 minutes ago, Buck52 said:
yes they are required to put ''everything'' including notes ect,,ect,, in the C-File
Now remember thew VA has tendency to lose records or say they don't exist , so be sure what ever you do make your self tons of copies.
you might check 38CFR3.160 (d(
Finally of a Adjudicated Claim
Thanks Buck ... here's the situation:
The Rating Decision on this was October 4, 1999. I had a rater who screwed me up in 1999 making completely false claims and not using the evidence available to him that I submitted and was recorded in my C-File. I had 2 knee surgeries that were included Right Knee - 2/7/1996 and Left Knee - 8/23/1996 which both surgery reports were sent with my original claim, and RECEIVED by VA date stamps April 19, 1999, and show as being received and available for the Rater. Note in the image below, the rater indicated that he reviewed reports from my hospital dated 7/31/1996 to 4/30/1997, The records clearly show note that I was injured in-service.
Date Stamp on Medical Reports I submitted and show in my C-File.
Left Knee Report August 23, 1996
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Quick question: If a rater references evidence in the "Evidence Considered" section of a rating decision letter and it is "used" in making a rating decision (e.g. if the rater obtained private doctor medical records), are they required to add those records to the C-File?
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2 minutes ago, Mrpdbo said:
Congrats! Does this include the shin splints you mentioned in your other post? If so, what was the verdict on that?
LOL Funny enough the only thing out of 15 conditions they deferred was bilateral shin splints LOL. Everything else was connected and rated!
I'll keep you posted on the shin splints.
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I want to say thank you to everyone who provided their insights especially @Berta, @GeekySquid, @Buck52, @shrekthetank1, @vetquest and @GBArmy . After 20+years at 20%, I decided to fight again in March 2018. After 8 months of trying to figure out how to get someone to complete a DBQ I had a breakthrough and submitted my claim in November 2018. March 4th I won 80%, May 5th 90% and today, 100%!!! I did the entire process on my own (with huge help from resources like hadit.com). The latest rating decision has errors (no surprise) but I'll clean that up over the next few months.
The next big thing is I believe I have grounds for CUE on a rating from 1999 so I am putting that together now and am researching @Berta's great information!
Thank you @Berta
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4 hours ago, Buck52 said:
RBrogen,
I bet it will be a winner think positive!!!
Thanks Buck ... fingers crossed I am optimistic about the outcome given I have all of the reports etc and they look positive for sure.
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UPDATE: The incompetent examiner that created a mess for one of my C&P exams in April has now reversed her negative opinion on my GERD claim! This was after a meeting with her boss and submitting VA Form 21-4138 with highlighted errors in my C&P, including the GERD diagnosis. My entire claim that has 11 conditions on it now is "Pending Decision" and I'm optimistic that this will be a great outcome!
A quick shout out of thanks to all of the members here who provide their knowledge and guidance. In the past 15 months, I've educated myself to the VA claims process in preparation to fight the fight on my own without a VSO. I've gone from 20% that I had for over 20 years to 80% in March 2019, 90% in April 2019, and I hope I will hit 100% by the end of August 2019. I couldn't have done it without the collective support and confidence gained by the knowledge I have learned from here and other key sources. Keep Up The Fight!
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57 minutes ago, Mrpdbo said:
Don't know if it's the case for everyone but they folded my shin splints in with patellafemoral pain syndrome for 10%.
My shin splints affect ROM of both ankles and knees which I believe will be a separate rating to the pain as it is a distinct difference condition. Additionally, I have the 10% for L/R Knees and L/R Ankles for arthritis.
Medical Opinion Required ...
in Veterans Compensation & Pension Exams
Posted
Thanks BroncoVet ... Doesn't that fly in the face of 38 CFR 4.2 and 4.6 about collecting and evaluating all evidence properly. Perfect example my shin splints, they were pointed out in one of my C&Ps, I then filed a claim for them, and during one of my most recent C&Ps they did medical eval and now I just got a call to specifically go in for shin splint C&P even though all of the DBQs have been completed for them (with the exception of the medical opinion question). Is it not strange to bring me in to do the medical opinion if they have all of the evidence?.... if it is clear the road is made of yellow brick, and you're traveling with a tin man, scarecrow and lion ... one could surmise your destination is Oz? lol but not in VA land.