Motor Vehicle Accident

[Carl]

USMC - 1995-1999 Hi i was injured in a Car Accident on base with a civillian contractor hit me on the side of my car on my last day going on terminal leave. I went to the Naval Hospital and received care overnight. I was discharged Honorally and was recommended to enroll in the VA for Medical care. I received Physical Therapy in the VA, Exams they found there is something chronic with my back I filed a claim in 2000 but my VA Medical Records were not sent to the VA when i received my rating decision wich i was denied for my back. I have been having a lot of problems with my back and knees due to the accident. What do i do now? It has been 5 years and i did not file for disagreement because i left to care for my mother. Please help!

[Guest allanopie]

Carl,

a few sugestions,

request a complete copy of your VA medical records, including Lab & Radiology, from the facility,(VAMC) that provided the theripy & care. Make copies & request a local hearing at the VARO that's handling your claim. At the hearing, get sworn in & submit & discuss the evidence in person with the adjudication officer.

If you choose to mail the evidence in, make sure you send it, "return receit".

[Guest jstacy]

You filed in 2000. It appears to me this may be an error on the part of the VA because the VCAA was imposed in 2000. The duty to assist has been violated because the rating officer failed to get VA records to assist in your claim. You did not NOD the decision and I assume your condition has worsened.

I would obtain copies and file a claim for the condition. At that point I would file a Cue claim against the VA for failure to obtain VA medical records relating to your condition. Did the VA give you a C and P exam for this condition.

Go to the VA and get copies of all treatment related to your back condition. Submit them to the VARO along with the claim. ALso if you have been seen outside of the VA then get copies of that also.

Duty to assist:

§ 3.159 Department of Veterans Affairs assistance in developing claims.

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(a) Definitions. For purposes of this section, the following definitions apply:

(1) Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.

(2) Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.

(3) Substantially complete application means an application containing the claimant's name; his or her relationship to the veteran, if applicable; sufficient service information for VA to verify the claimed service, if applicable; the benefit claimed and any medical condition(s) on which it is based; the claimant's signature; and in claims for nonservice-connected disability or death pension and parents' dependency and indemnity compensation, a statement of income.

(4) For purposes of paragraph ©(4)(i) of this section, event means one or more incidents associated with places, types, and circumstances of service giving rise to disability.

(5) Information means non-evidentiary facts, such as the claimant's Social Security number or address; the name and military unit of a person who served with the veteran; or the name and address of a medical care provider who may have evidence pertinent to the claim.

(B) VA's duty to notify claimants of necessary information or evidence. (1) When VA receives a complete or substantially complete application for benefits, it will notify the claimant of any information and medical or lay evidence that is necessary to substantiate the claim. VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. If VA does not receive the necessary information and evidence requested from the claimant within one year of the date of the notice, VA cannot pay or provide any benefits based on that application. If the claimant has not responded to the request within 30 days, VA may decide the claim prior to the expiration of the one-year period based on all the information and evidence contained in the file, including information and evidence it has obtained on behalf of the claimant and any VA medical examinations or medical opinions. If VA does so, however, and the claimant subsequently provides the information and evidence within one year of the date of the request, VA must readjudicate the claim.

(Authority: 38 U.S.C. 5103)

(2) If VA receives an incomplete application for benefits, it will notify the claimant of the information necessary to complete the application and will defer assistance until the claimant submits this information.

(Authority: 38 U.S.C. 5102(B), 5103A(3))

© VA's duty to assist claimants in obtaining evidence. Upon receipt of a substantially complete application for benefits, VA will make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. In addition, VA will give the assistance described in paragraphs ©(1), ©(2), and ©(3) to an individual attempting to reopen a finally decided claim. VA will not pay any fees charged by a custodian to provide records requested.

(1) Obtaining records not in the custody of a Federal department or agency. VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from State or local governments, private medical care providers, current or former employers, and other non-Federal governmental sources. Such reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. A follow-up request is not required if a response to the initial request indicates that the records sought do not exist or that a follow-up request for the records would be futile. If VA receives information showing that subsequent requests to this or another custodian could result in obtaining the records sought, then reasonable efforts will include an initial request and, if the records are not received, at least one follow-up request to the new source or an additional request to the original source.

(i) The claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from non-Federal agency or department custodians. The claimant must provide enough information to identify and locate the existing records, including the person, company, agency, or other custodian holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided.

(ii) If necessary, the claimant must authorize the release of existing records in a form acceptable to the person, company, agency, or other custodian holding the records.

(Authority: 38 U.S.C. 5103A(B))

(2) Obtaining records in the custody of a Federal department or agency. VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency. These records include but are not limited to military records, including service medical records; medical and other records from VA medical facilities; records from non-VA facilities providing examination or treatment at VA expense; and records from other Federal agencies, such as the Social Security Administration. VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile. Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them.

(i) The claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from Federal agency or department custodians. If requested by VA, the claimant must provide enough information to identify and locate the existing records, including the custodian or agency holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided. In the case of records requested to corroborate a claimed stressful event in service, the claimant must provide information sufficient for the records custodian to conduct a search of the corroborative records.

(ii) If necessary, the claimant must authorize the release of existing records in a form acceptable to the custodian or agency holding the records.

(Authority: 38 U.S.C. 5103A(B))

(3) Obtaining records in compensation claims. In a claim for disability compensation, VA will make efforts to obtain the claimant's service medical records, if relevant to the claim; other relevant records pertaining to the claimant's active military, naval or air service that are held or maintained by a governmental entity; VA medical records or records of examination or treatment at non-VA facilities authorized by VA; and any other relevant records held by any Federal department or agency. The claimant must provide enough information to identify and locate the existing records including the custodian or agency holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided.

(Authority: 38 U.S.C. 5103A©)

(4) Providing medical examinations or obtaining medical opinions. (i) In a claim for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but:

(A) Contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability;

( Establishes that the veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in §3.309, §3.313, §3.316, and §3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and

© Indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability.

(ii) Paragraph (4)(i)© could be satisfied by competent evidence showing post-service treatment for a condition, or other possible association with military service.

(iii) Paragraph ©(4) applies to a claim to reopen a finally adjudicated claim only if new and material evidence is presented or secured.

(Authority: 38 U.S.C. 5103A(d))

(d) Circumstances where VA will refrain from or discontinue providing assistance. VA will refrain from providing assistance in obtaining evidence for a claim if the substantially complete application for benefits indicates that there is no reasonable possibility that any assistance VA would provide to the claimant would substantiate the claim. VA will discontinue providing assistance in obtaining evidence for a claim if the evidence obtained indicates that there is no reasonable possibility that further assistance would substantiate the claim. Circumstances in which VA will refrain from or discontinue providing assistance in obtaining evidence include, but are not limited to:

(1) The claimant's ineligibility for the benefit sought because of lack of qualifying service, lack of veteran status, or other lack of legal eligibility;

(2) Claims that are inherently incredible or clearly lack merit; and

(3) An application requesting a benefit to which the claimant is not entitled as a matter of law.

(Authority: 38 U.S.C. 5103A(a)(2))

(e) Duty to notify claimant of inability to obtain records. (1) If VA makes reasonable efforts to obtain relevant non-Federal records but is unable to obtain them, or after continued efforts to obtain Federal records concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, VA will provide the claimant with oral or written notice of that fact. VA will make a record of any oral notice conveyed to the claimant. For non-Federal records requests, VA may provide the notice at the same time it makes its final attempt to obtain the relevant records. In either case, the notice must contain the following information:

(i) The identity of the records VA was unable to obtain;

(ii) An explanation of the efforts VA made to obtain the records;

(iii) A description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and

(iv) A notice that the claimant is ultimately responsible for providing the evidence.

(2) If VA becomes aware of the existence of relevant records before deciding the claim, VA will notify the claimant of the records and request that the claimant provide a release for the records. If the claimant does not provide any necessary release of the relevant records that VA is unable to obtain, VA will request that the claimant obtain the records and provide them to VA.

(Authority: 38 U.S.C. 5103A((2))

(f) For the purpose of the notice requirements in paragraphs (B) and (e) of this section, notice to the claimant means notice to the claimant or his or her fiduciary, if any, as well as to his or her representative, if any.

(Authority: 38 U.S.C. 5102(:D, 5103(a))

[Guest Berta]

I sure agree with jstacy- a potential CUE-

MARINE! Welcome aboard-

unfortunately you are going to have to do some leg work here- these vets are correct- you need all of your VA medical records-

also I suggest you go to the NARA web site:

http://www.archives.gov/--click on Military Service records and you can file out the SF 180 at the site (you will need printer for the bar coded thing for your signature) or just print out the SF 180 and instructions and ask them for ALL medical and Personnel recocrds to include your NAV 118 -if they still call it that in the CORPS (an SRB)

Also there is a topic posted here today EED CUE granted or words to that affect-

This is a good example of what we mean by filing a CUE.

I say you should re-open the claim and file the CUE too as the CUE claim could recover those years of retro comp that have been lost,as the claim is unappealed and final.

We can help you state the CUE when you get your records-

no time limit on it.

Do I understand - you got the HD but also this injury caused you to leave the service?Maybe I got that part wrong-

Were you asked to sign some phony waiver regarding any future comp for this disability?

I think those days are long gone, that was a Navy tactic in the 1980s.

Make sure the knee problems are mentioned in the reopened claim and how any meds you take for this affect your ability to work. like pain meds= do not take and drive, causes confusion, etc.

Do you have any painful scars from this accident ? if so put that in your claim- if they are disfiguring tell the VA that too-

Make sure the VA has copy of any current treatment records- you can get copies as they occur from the Records Access Officer by letter at the VAMC which treats you.

Make sure too that-if you have had any private care or therapy for this condition-

tell the VA this too.

And thank you for your service. Berta

[jimlane1949]

USMC - 1995-1999 Hi i was injured in a Car Accident on base with a civillian contractor hit me on the side of my car on my last day going on terminal leave. I went to the Naval Hospital and received care overnight. I was discharged Honorally and was recommended to enroll in the VA for Medical care. I received Physical Therapy in the VA, Exams they found there is something chronic with my back I filed a claim in 2000 but my VA Medical Records were not sent to the VA when i received my rating decision wich i was denied for my back. I have been having a lot of problems with my back and knees due to the accident. What do i do now? It has been 5 years and i did not file for disagreement because i left to care for my mother. Please help!

Did you get a settlement from the contractors insurance company? If you did, you could submit the insurance claim as additional medical evidence.