Cue And Severing Service-Connection

[AF1982]

Dear Hadit; First, let me start by apologizing for posting on the wrong forum. I did not mean to hi-jack anyone else's post.

Second, I was asked what month in 2002 my SC was established. My C&P was in July and my grant was in October, 2002. I went through Voc Rehab 2003-2005 due to my qualified disability. If anyone has questions, please feel free to ask. Thanks!

REPOST from yesterday:

I have just received a severing decision to my sc knee. The decision argues within itself...; it acknowledges my dislocated patella in the service and that a later automobile accident doctor verified it was an old injury, reaggravated by the accident.

Due to the area of AF service I was in, after I received my honorable discharge in 82 I just wanted to forget the military existed and wanted to try to move on with life. I was never one to run to doctors with my discomforts, as those who know me attest.

My knee was always a problem after the service injury; I just dealt with it, using my sleeve-brace and avoiding certain physical things when the knee would flare up.

7 years after my service I was in a work-related auto wreck and reaggravated my knee. The work-comp doctor documented it was an old injury reaggravated.

In 2002 my knee was at the point where it was dangerous to me. I'd already had one fall and the constant locking and swelling was driving my wife up the wall. So, I sought VA Voc Rehab and was told I also qualified for SC benefits. My disability was evaluated and recognized at 20% at that time. I wasn't seeking SC benefits, only Voc Rehab, but VA said I qualified for both. I told them about the 1989 auto wreck, as I had no intention to lie to them and they asked for my history. I was approved for Voc Rehab and SC disability at 20% in 2002.

In 2005 my rating went to 30%. 2006 and 2007 I had (2) knee replacements (of my problem knee). The 2nd was due to the first messed up by the VA doctor. My rating went to 60% and my back, neck and hips (and good knee) have been affected by my shifted body-weight being carried.

Following a dismissed med-mal suit against the VA surgeon of the 2006 knee replacement, the VA (U.S. District) attorney emailed VA claiming my disability-injury was not service-connected. This claim was NEVER MADE or even INFERRED, during the lawsuit. This attorney is NO LONGER a U.S. District attorney, as he left that office when I requested a FOIA of his notes and contacts concerning his claim.

My Congressman is involved, and has been the ONLY WAY my attorney and I have been able to get VA to respond to our letters and/or his legal requests in the matter. I have requested an electronic copy (email) of the Sever Decision, and when it is received, I would greatly appreciate your input.

Thank you - I look forward to hearing back.

[AF1982]

Hadit; The Decision is below; sorry for the delay. It took awhile to type out. In an earlier post I attached evidence documents. (The bold italics areas are my comments).

Input appreciated.

STAMPED May 29, 2012

Dear ________:

In our letter of August 15, 2011 we had received information indicating that your service-connected Status post total knee arthroplasty (previously rated as left knee meniscus disease with effusion and history of patellar dislocation) was service connect in error. We proposed to stop your benefits. You requested a personal hearing within the required timeframe. The hearing was conducted on January 25, 2012. Based on the results of that hearing we have severed your service connection.

REASON FOR DECISION

Continued entitlement to compensation for status post total knee arthroplasty.

VA proposed to sever service connection for your status post left knee arthroplasty, currently rated as 60% disabling in our rating decision dated August 31, 2011. The reason for the proposed severance was that the rating specialist who service connected the meniscal injury on the VA rating decision dated October 28, 2002 did so without any medical link to a cause or origin in military service whatsoever.

(This is false;; VA had full access to AF file and acknowledged service injured knee)

You asked for and received a personal hearing which took place on January 25, 2012 at which point you presented evidence in support of maintaining the current evaluation. You had a series of arguments designed to discredit the findings of the C&P physician, Dr. VA, who performed the exam of August 14, 2011. Your initial argument appears on page 24 of the transcript and indicates that his analysis of the August 20, 1990 workers compensation document was incorrect and that the veteran was asserting that knee simply gives out, not that it gives out to the industrial accident. This analysis on your part is not correct because you are taking the question #3 out of context with the preceding two questions on the form which were "What were the general duties of your job when you were injured," and "What was the resulting injury?" You answered your job was as a plumber and that you injured your left knee on the job. The third question then was "How does THIS disability affect you in your work?" This obviously refers to the preceding question and workers compensation claim in question and you answered that his knee gives out on occasion. He was attributing his knee giving out to his workers compensation injury. It seems that Dr. VA was correctly reading this form when he commented on it on page 130 of his C&P exam.

(No C&P Exam was done. This doctor was 600 miles away and I was not offered to see him!)

The second argument made (pg 25 of transcript) was that Dr. VA statement on page 130 of the August 2012 exam is incorrect because it notes that there is no apportionment to other causes. You argue that that Dr. Huene clearly identifies an osteochondritis dissecans prior to the industrial accident thus showing a preexisting condition.

The statement that the osteochondritis dissecans existed prior to the 1989 industrial injury appears sound. However, the next argument (page 27) that you put forward that Dr. Huene is identifying the entire disease process as preexisting the industrial accident and that there is no apportionment to the accident itself is an argument that holds absolutely no weight. The proof in the validity of where the apportionment lies is obvious. Dr. Huene was writing his July 10, 1990 document to the Transamerica Insurance Company, the company who would be responsible for paying the Workers Compensation claim. Dr. Huene went over the evidence and did identify a preexisting osteocondritis dissecans but clearly notes that this and the other findings in the knee were aggravated by the industrial injury. He is advising his employers, the insurance company, that the symptomology present was due to the aggravation and is not otherwise apportionable to other factors. In fact, as we will show below, it is continually reiterated that there was no actual ongoing symptomology in the knee prior to this industrial injury, radiographic findings notwithstanding. It is notable that the Transamerica Insurance Company is clearly shown in the evidence of record to have paid the Workers Compensation claim which is proof that they accepted that the symptomology occurred as a result of the 1989 industrial accident. This is partially on the strength of the opinion from Dr. Huene. It again appears that Dr. VA's reading of the document was correct.

The next argument (Page 28 and 29 of transcript) is that Dr. VA's observation #8 on page 130 of the C&P exam takes Dr. Lambert's out of context. Dr. Lambert's letter of July 14, 1989 points out that the veteran has a history of wearing a knee brace but no longer does. The next statement by Dr. Lambert was that "He (the veteran) had no previous systems or trouble with the left knee."

(VA was to provide the transcript but has not and they leave out most of the relevant argument)

The argument is that this letter is not entirely chronological and that there was a knee disability of some sort preexisting the 1989 industrial accident. To this point, I would state that it has been established that an osteochondritis dissecans preexisted the 1989 accident. However, according to Dr. Lambert's letter, no symptomology was present immediately preceding the industrial accident. The veteran had apparently even discontinued use of the knee brace. The observation #8 by Dr. VA only restates what was written in Dr. Lambert's letter which is that the veteran did not identify problems with the knee immediately preceding the accident. Going back through the preceding documents, (veteran) had identified the worker's compensation injury as the source of his knee giving out on the workers compensation document dated August 20, 1990, did not identify preexisting symptomology in the left knee to Dr. Huene during the examination of July 9, 1990 which was discussed in his letter of July 10, 1990, and now again failed to identify ongoing symptoms in the knee which existed prior to the industrial accident of 1989 when seen by Dr. Lembert as described in the letter of July 14, 1989. So, again, Dr. VA's statement #8 simply reiterates which Dr. Lembert identified by the veteran existing in his left knee prior to the accident.

The next argument (page 31 and 32 of the transcript) regarding Dr.VA's bases for his opinion is regarding observation #9 on page 130 of the C&P exam. It takes issue again with Dr. VA's reading of Dr. Schuman's record of June 29, 1989 that there was no previous history of knee problem and also that there is a probably ACL/meniscus injury from the industrial accident of 1989. The argument put forward at the personal hearing is that the phrase "He denies any prior problems referable to the left knee," does not mean that the veteran did not have symptoms in the knee prior to the industrial injury but that rather than veteran interpreted the question to mean "Did you have symptoms in your knee which caused you to visit a physician or seek medical assistance prior to the industrial accident of 1989?" It is an interesting argument as a hypothetical but one which lacks creditability when taken in context with all the other primary source document. As noted above, you denied ongoing symptoms in the knee prior to the 1989 industrial accident on the workers compensation document of August 20, 1990, you did not identify any preexisting symptomology in the left knee to Dr. Huene during the examination of July 9, 1990 which was discussed in his letter of July 10, 1990, and now you again failed to identify ongoing symptoms in the knee which existed prior to the industrial accident of 1989 which seen by Dr. Lembert as described in the letter of July 14, 1989. It might be argued that you are a strong person and don't often seek medical help. However, your claim regarding this misinterpretation is not given any weight in this discussion given the multiple denials of symptomology preceding the industrial accident.

As for the ACL/Meniscal injury, it is entirely appropriate to conclude that those symptoms which were present when Dr. Schumann examined the veteran on June 29, 1989 but which were not described prior to the 1989 industrial accident, stemmed from the accident. There is no evidence showing that the preexisting finding of osteocondritis dissecans caused an ACL or meniscal injury prior to the industrial accident. Dr. VA's observation #9 is sound.

The next argument that a preexisting injury may have been present is an odd one (see page 36 of the transcript). It looks at Dr. Peterson's statement of March 29, 2010 and identifies on Exhibit 3-44 that "However, the patella could just as easily have been jumping over something else, such as scar tissue." Your argument at the hearing was that such reporting on this document suggests that a pre-existing injury may have been present. However, one must remember that Dr. Peterson's statement was compiled in 2010 and discusses the knee replacement surgery which is 21 years and at least two surgeries following the industrial accident of 1989. The possible scar tissue in question need not have been from any source prior to the industrial accident of 1989 but just as easily (if not more so) might have been from either of the two surgeries. This argument on your part leads to no conclusive findings.

(I have no idea where this statement is coming from or the point it is trying to make as Dr. Peterson's 2010 statement is part of the medical malpractice suit and was rebutting the oversized knee replacement implant that was grabbing my patella and necessitated a 2nd knee replacement. Peterson was the VA's (U.S. Government) expert witness and was claiming the implant wasn't necessarily oversized, and wasn't necessarily grabbing the patella, but maybe just hitting scar tissue. Dr(s). Garland, Howland and Scott verified the implant oversized, grabbing the patella, required the 2nd surgery).

A slightly better argument (see page 36 of transcript) for a preexisting injury made at the hearing was that the treatment record dated February 21, 1989 from Memorial Hospital Association which antedates the April 1989 industrial accident shows some left leg focal weakness. This is true that the record does show complaints of left legal focal weakness.

However, that record specifically indicates that a neurological process is suspected and at no point is a left knee problem complained of by you or identified by the medical professional. These records therefore carry no weight in establishing left knee related symptomology prior to the 1989 industrial accident.

(The simple truth is that since the original service injury 1982, my left knee/leg has been a problem. I rearranged my life around it. I handle pain quite well and I only see doctors when I have to. The emergency hospital issue was to address an unknown poisoning to my body; the focus was not on my knee, but was on my seizures and high temperature, etc. -- the life issues, not the inconveniences that I dealt with regularly.

The next argument of note (see page 34 of the transcript) is that this case passes the three pronged test as outlined in Damrel v. Brown. The first test is that the correct facts, as they were known at the time, must have not been before the adjudicator. You have argued that they were. Clearly, they were not. The adjudicator (rating specialist) clearly knew that there was a Worker's Compensation determination on the left knee as we had a partial record, but clearly did not take any steps to obtain those complete relevant records. Only 10 years later did VA finally seek and obtain those records--records which contact most of the primary source documents described above.

The second prong or test was that the error must be undebateable and that if it had not been made, it would have manifestly changed the outcome of the decision at the time it was made. Clearly, the evidence apportioning the symptomology in the knee present in 1989 to an industrial accident would have changed the decision made on the rating decision of October 15, 2002.

(Are you serious? There are debatable issues every step in this case)

The third prong or test is that the clear and unmistakable error must have been based upon the record and law which existed at that time. The records we sought and obtained from Workers Compensation in California existed and under the law at that time had they been obtained they would have resulted in a denial of the veteran's claim.

In fact, the three prong test for a clear and unmistakable error has been met. The rating decision of October 15, 2002 was flawed in that the rating specialist attributed the symptomology which was present at that time, using her own judgment alone, to the dislocation of the patella which was shown in the service treatment records twenty years earlier even though 1) there was no qualified medical opinion making that link, 2) the C&P examiner had not reviewed the claims file or any of the evidence of record, and 3) VA had not sought to obtain the necessary Worker's compensation records which describe a known intercurrent injury.

In summation, it has been shown that dislocation of the patella can potentially cause ongoing symptomology and it has been shown that the veteran had osteochondritis dissecans prior to the industrial injury of 1989. However, the evidence is conclusive that there was no symptomology which preexisted the 1989 injury identified by the veteran in at least four different chances to report such symptomology in the Worker's Compensation documents. There has been no medical evidence presented linking any knee symptomology to the kneecap dislocation in service. There has been no medical evidence creating a nexus between the osteocondritis dissecans and the knee cap dislocation in service. There is no continuity of treatment or symptomology demonstrated between the time of the patellar dislocation and the industrial accident.

Lastly, and very significantly, VA met its duty to assist by ordering an exam on the question of which the in-service patellar dislocation caused the disability which led to the current status post left knee arthroplasty. This should have been done at the time of the initial C&P decision. The opinion put forward by the examiner included a close reading of the source documents and concluded that the current knee condition is less likely than not related to the service injury. The full rationale concluded that there are no records of knee complaints between the dislocation and the 1989 industrial accident despite the fact that you have engaged in a heavy duty occupation in that time. It also indicated that the multiple doctors records (discussed at length above) following the industrial accident do not contain substantive evidence of ongoing symptomology in the knee prior to the industrial accident.

There remains no evidence which has been submitted which changes the fact pattern as described in the C&P examination of August 14, 2011. There has been no medical evidence submitted which reaches a different conclusion from that of the C&P examination. A clear and unmistakable error was made in granting service connection for symptomology in the left knee on the rating decision of October 15, 2002 as described in detail above, and as such, service connection for status post total left knee arthroplasty is severed effective August 1, 2012, the first day following a two month due process period.

(No C&P exam done, and so I had no opportunity to provide input to a person I wasn't notified existed. My knee has been a problem since 1982; I adjusted my life to it.)

REFERENCES:

Title 38 of the Code of Federal Regulations, Pensions, Bonuses and Veterans' Relief contains the regulations of the Department of Veterans Affairs which govern entitlement to all veteran benefits. For additional information regarding applicable laws and regulations, please consult your local library, or visit us at our web site, www.va.gov.

(These are Cases that I believe support my right to my Service-Connection continuing).

http://www.va.gov/ve...les/0403057.txt

http://www.va.gov/ve...es2/9912466.txt

http://www.va.gov/ve...es2/0604981.txt

http://www.va.gov/ve...les/0406823.txt

http://www.va.gov/ve...s02/0209480.txt

http://veteranslawli...m/case_law.html

Edited June 30, 2012 by AF1982

[AF1982]

Question: Wouldn't this be protected under the 10-year rule?

Original SC Effective date May 24, 2002 and new Decision severance date scheduled for August 1, 2012 (in decision May 23, 2012, date-stamped May 29, 2012)? Got it June 1st.

Thinking of submitting effective date argument and asking 10-year protection restoration.

Comments welcome.

[jbasser]

Service connection for any disability or death granted or continued under title 38 U.S.C., which has been in effect for 10 or more years will not be severed except upon a showing that the original grant was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge. The 10-year period will be computed from the effective date of the Department of Veterans Affairs finding of service connection to the effective date of the rating decision severing service connection, after compliance with §3.105(d). The protection afforded in this section extends to claims for dependency and indemnity compensation or death compensation.

That sums it up

[AF1982]

So, do you think there is a 10-year rule here or just have to submit a NOD of Decision?

[jbasser]

How many exams did they do?

J

[Philip Rogers]

Personally, I don't think they have a leg to stand on and I think you can win. However, that probably won't stop the actual severence happening, on 8/1/2012, and you having to adjust to the loss of income, in the meantime, while appealing the decision. I see the effective date of severing service connection as 8/1/2012, two months beyond the 10yr protection date. jmo

pr

Title 38: Pensions, Bonuses, and Veterans' Relief

CHAPTER I: DEPARTMENT OF VETERANS AFFAIRS

PART 3: ADJUDICATION

Subpart A: Pension, Compensation, and Dependency and Indemnity Compensation

: Protection

3.957 - Service connection.

Service connection for any disability or death granted or continued under title 38 U.S.C., which has been in effect for 10 or more years will not be severed except upon a showing that the original grant was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge. The 10-year period will be computed from the effective date of the Department of Veterans Affairs finding of service connection to the effective date of the rating decision severing service connection, after compliance with 3.105(d). The protection afforded in this section extends to claims for dependency and indemnity compensation or death compensation.

(Authority: 38 U.S.C. 1159)

[33 FR 15286, Oct. 15, 1968]

Edited June 10, 2012 by Philip Rogers