tinnitus Fixing Previous Claims And Appeals Due To Inadequate C&p Exams And Cues

[elcamino_77us]

I was discharged Nov1995 and Finally got my BVA decided in the Fall of 2008. My VSO was The American Legion and at the end they sent me a letter stating that they had help me as much as possible.

I had surgery on my right knee in Aug 2012 and decided that would be a good time to file for an increase. After going through the Georgia Dept of Veterans Services and filing my claim, I began researching here and in other fourms.

What I found amazes me. Yes,The American Legion did a good job but at the same time, they really blew it.

In making their decission, The BVA relied on information from an inadequate C&P Exam. Plus, they (The BVA) changes the wording of the C&P examiner from within to without:

“In summation there is some progression in the Vets L/S strain and degenerative arthritis there, but within any neurological disability.”

To:

“In summation there is some progression in the Vets L/S strain and degenerative arthritis there, but without any neurological disability.”

This completely changed the meaning of the examiners statement. The word “within” used in this particular situation meant to include or encompass all of the neurological disability, in this case bilateral spinal stenosis to the L/S strain and degenerative arthritis.

The BVA decission also stated in conjuction with my Left Knee Claim:

"appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001)."

Last week, I had surgery on my Left Knee. I do not have as of yet, a post-op report from the doctor. According to my wife, the doctor stated that most of the damage in my left knee was the result of an old injury. The only injury that I have had to my left knee was while I was stationed in the Marine Corps.

My C&P Exam of 1996 did not include Deluca, My C-File was not view, The Examiner stated to me that he had looked at my x-rays and could not find anything wrong. At the end of the exam, he sent me for x-rays as he stated he didn't have any. All of my complaints of pain or my statements concerning military treatments were ignored. The doctor basicly stated I was a quack.

I have also found the medical reports sent in 3 1/2 months after my discharge and a year later with a diagnosis of dengenerative Arthritis of the Spine were ingored.

I believe there was a CUE committed as well with my first Audio C&P as I mentioned I had Tinnitus along with my hearing loss. I was service connected for the Hearing Loss but as I didn't know the Tinnitus was seperate, I wasn't service connected for that until 2010. According to what I can find, that would fall under Failure to Fully & Sympathetically Develop Claim.

This is just the tip of the ice burge.

OK, After reading all of that, can anyone give me some good advice.

I'm not sure how to handle the BVA and both their usal of a C&P exam that was I believed, previously considered inadequate or their deliberate changing of the examiners wording to deny an increase.

What did the BVA mean when they stated: "appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001)." And what does that mean for me still trying to service connect my left knee with my current claim?

Is my statement concerning the Tinnitus being a CUE, correct?

Thanks

Bill

Edited May 12, 2014 by elcamino_77us

[john999]

You were discharged in 1996 and you claim was on appeal for 12 years? When did you file your first claim?

[elcamino_77us]

Thanks for responding John

No, I was discharged Nov 1995 and filed my claim that same month. My C&P Exam was held in March of 1996. The C&P Exam was a complete Joke, which I appealed promptly. Seven years later I testified in front of a traveling BVA in Atlanta after I contacted a Local US Rep and asked about my case as I hadn't heard anything since 1996. The VA Apologized for forgetting about me. After that, the American Legion kept having to appeal due to the constant mistakes the VA was making which included 2 more Inadequate C&P Exams and 1 not as bad C&P Exam plus the fact that the laws kept changing as to who was responsible to hear my case.

Again Thanks

Bill

[john999]

If you think you have a lot of retro coming I would hire a lawyer. I say this because the more you make off retro the more the lawyer makes ....20% of retro. You have 120 days to appeal to Court of Vet Appeals if you want to go that way. If you found missing service records Bronco or Berta can help with that. That is a special case for EED.

John

[Berta]

“This completely changed the meaning of the examiners statement. “

I certainly agree. It was probably a typo but it could have changed the outcome of the claim...hard to tell here.

“got my BVA decided in the Fall of 2008”

What steps did you or your vet rep take with the BVA to get that corrected?

“According to my wife, the doctor stated that most of the damage in my left knee was the result of an old injury. The only injury that I have had to my left knee was while I was stationed in the Marine Corps. “

The right knee is service connected as I understand this .

Is the left knee already service connected too?

If not,is there evidence in your SMRs and/or on your USMC discharge certificate to claim it?

Also it is very possibly medically that the SC Right knee problem has significantly affected the use of your left knee, causing 'aggravation of' or secondary disability of the left knee.

That would take a medical opinion with full medical rationale to support that type of claim.

And ...would this doctor be willing to elaborate on what he stated to your wife (hope it is documented too) in writing ,in the form of an IMO, if needed? I guess I am assuming (and could be wrong) that this was a non VA doctor?

De Luca was decided in 1995 so your older claim appears to have been (should have been) covered by De Luca:

“In DeLuca the Court held 
that for disabilities evaluated on the basis of limitation of 
motion, VA is required to apply the provisions of 38 C.F.R. 
§§ 4.40, 4.45, pertaining to functional impairment.  Such 
inquiry is not to be limited to muscles or nerves.  These 
determinations are, if feasible, be expressed in terms of the 
degree of additional range-of-motion loss due to any weakened 
movement, excess fatigability, incoordination, flareups, or 
pain.  DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 
Johnston v. Brown, 10 Vet.App. 80, 84-5 (1997); 38 C.F.R. 
§ 4.59 (2006).”
http://www.va.gov/vetapp08/files1/0800709.txt

“What did the BVA mean when they stated: "appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001)." And what does that mean for me still trying to service connect my left knee with my current claim?”

sub nom is short legal talk for sub nomine, in Latin for “under the name”

A dismissal of part or all of an appeal will have the reason for dismissal within the actual BVA decision.

Part of your RO decision however was sent back (remanded) to the sub nom , meaning the AOJ Original Agency of Jurisdiction- The VARO,whose decision you appealed.

When did this all happen?

The dismissal of part of the appeal, in my opinion, means just that... the issue (s) dismissed are over.

The remand however....what is the current status of the remand?

“Is my statement concerning the Tinnitus being a CUE, correct?”

“ I believe there was a CUE committed as well with my first Audio C&P as I mentioned I had Tinnitus along with my hearing loss. I was service connected for the Hearing Loss but as I didn't know the Tinnitus was seperate, I wasn't service connected for that until 2010. According to what I can find, that would fall under Failure to Fully & Sympathetically Develop Claim. “

You are misinterpreting CUE. Any Duty to Assist regulation or 'sympathetic' mantra by the VA does not form a basis for a CUE claim. Heck the VA fails to fully and sympathetically develop claims all the time.

That is our job as claimants to do.

The full gamit of what CUE claims are, is here within our CUE forum.

Can you give us the BVA decision Citation Number and docket number for your BVA case?

It is published on line at the BVA web site ( no names addresses etc and that would help us to read it all.

What is the 40% SC for?

Sorry but one more question:

“got my BVA decided in the Fall of 2008”

Was that decision due to the result of the remanded part of the claim, after the original BVA claim involving a 1996 C & P exam?

[elcamino_77us]

John999

Thanks for your input, My thoughts are leaning that way especially in light with of your comment about 20%.

Bill

[elcamino_77us]

Thanks Berta, great job, I do appreciate your wealth of knowledge.

I have some answers that will help with your input, plus a question or two..

"What steps did you or your vet rep take with the BVA to get that corrected?"

To be honest, none. I just found it. I was trying to get my life back together after a divorce when the VA made their decision. I was somewhat happy that they finally decided in my favor and the fact that the American Legion had sent me a letter stating they had done all they could do. I only recently learn about the misquote as I was researching for my current claim. I had requested a copy of all of my files including the C&P Reports. I believe its obvious once you read the BVA.

"Is the left knee already service connected too?"

No

"If not,is there evidence in your SMRs and/or on your USMC discharge certificate to claim it?"

Yes, I had a left knee MCL Strain along with being found unfit by a MedBoard for BILATERAL RETROPATELLAR PAIN SYNDROME but Found Fit by the PEB. I had to check the boxes for knee injuries on my last military exam, as my local clinic didn't think I had a medical problem due to the PEB coming back fit for duty.

"Also it is very possibly medically that the SC Right knee problem has significantly affected the use of your left knee, causing 'aggravation of' or secondary disability of the left knee."

I'm sure they have both been affecting ech other as my right knee was injured as I left Okinawa in 88. Plus having DDD of the spine didn't help either.

"And ...would this doctor be willing to elaborate on what he stated to your wife (hope it is documented too) in writing ,in the form of an IMO, if needed? I guess I am assuming (and could be wrong) that this was a non VA doctor?"

The doctor is a Sports Medicine Specialist. I got a report from him today in detail concerning the surgery. The Chondromalacia is really bad in certain parts of my knee. I gave him a complete history outline of my left knee with a copy of all medical file as enclosures along with two examples of Nexus Letters. He stated that he would read through all of it and try and help me out. From what I have read mistaking Chondromalacia for Retropatellar Pain Syndrome is a common mistake, so hopefully this will be easy for him. I also asked him to complete a DBQ on the knee. I told him that the VA Doctor at the C&P did the ROM portions back in January as I would not be able to do that part due to my surgery. NOTE: She was instructed to only complete a DBQ on my right knee, but once I told her that I had reopened my left knee case, she went ahead and did the ROM for the Left knee, but only the ROM, nothing else was filled out on my left knee.

"De Luca was decided in 1995 so your older claim appears to have been (should have been) covered by De Luca:"

Yes, it should have been but wasn't

"A dismissal of part or all of an appeal will have the reason for dismissal within the actual BVA decision.

Part of your RO decision however was sent back (remanded) to the sub nom , meaning the AOJ Original Agency of Jurisdiction- The VARO,whose decision you appealed.

When did this all happen?"

This was apart of the BVA of 2008.

"The dismissal of part of the appeal, in my opinion, means just that... the issue (s) dismissed are over.

The remand however....what is the current status of the remand?"

That is a very GOOD question as I have never heard anything back on any kind of remand pending. If that is the case, does that mean that IF I can get the knee service connected this time will they have to go all the way back to my date of discharge???

"Can you give us the BVA decision Citation Number and docket number for your BVA case?"

DOCKET NO. 97-05 565 Aug 27, 2003

DOCKET NO. 97-05 565 Nov 10, 2005

DOCKET NO. 97-05 565 Jul 17, 2008

They are all a continuation from my original claims file of Nov 1995

"What is the 40% SC for?"

20% Low Back Strain

10% Right Knee Arthritis

10% Tinnitius

0% Hearing Loss

0% Hernia

"Sorry but one more question:

“got my BVA decided in the Fall of 2008”

Was that decision due to the result of the remanded part of the claim, after the original BVA claim involving a 1996 C & P exam?"

This was the third BVA ruling after the 1996 C&P exam. Even though the report was considered inadequate for the first two BVA's to use, the BVA of 2008 still used part of his science fiction report to make its decision.

I do have a question or two concerning the Tinnitus as A CUE however, I will have to wait until tomorrow to ask as it is getting late. I hope I gave you enough info to look up the BVA's so you can help me.

I realize that this is kind of late in the game and maybe there's not allot that can be done at this point.

Thanks Berta and anybody else willing to help