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

[broncovet]

Read Cushman vs Shinseki. Its another case where the VA frauduently altered the records in order to deny or at least delay, until they were caught. When they did get caught, as usual, the Vet paid the penalty for VA shennanigans like this. Its way way past time VA keeps getting away with this with immunity. Because someone wears a "VA employee badge", they are somehow immune to prosecution.

[Berta]

Odd question...I am a civilian and dont understand this...

You said the PEB found you fit for duty....

Was that PEB evaluation for the knee that IS service connected now?

“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.”

Our IMO forum has to steps to getting an IMO prepared in the best way for VA tpo understand it. They will reject anything speculative and the doc needs to use the magic words of 'at least as likely as not” and then give a full medical rationale for their conclusions as to why the disability should be service connected as due to direct SC or as secondary to, and/.or aggravated by a SC condition.

This doctor should explain his area of expertise to the VA and attach a Curriculum Vitae if possible.

http://www.va.gov/vetapp03/Files/0321406.txt Your 2003 decision involved more development before a return to the BVA,

and included a claim for bilateral knee disability

http://www.va.gov/vetapp05/Files5/0530230.txt 2005 BVA decision..remanded for left knee disability...

(I am only focusing on the knee disabilities here and others will advise on the rest)

In part:

“The private May 2005 medical opinion also indicates the 
veteran has been treated by Dr. L. since November 2001 at the 
Lawson Chiropractic Clinic.  However, the clinical records of 
this treatment have not been obtained by VA.”

and:
  “VA is also 
obligated to make reasonable efforts to assist a claimant in 
obtaining evidence necessary to substantiate his claim.  
38 U.S.C.A. § 5103A (West 2002).  This duty includes 
obtaining pertinent medical records identified by the 
veteran.  38 U.S.C.A. § 5103A(b) (West 2002).  Therefore, 
medical treatment records from the Lawson Chiropractic Clinic 
must be obtained prior to any final adjudication of the 
veteran's pending claims.”

claim remanded again for more development as stated within this remand. 
 
http://www.va.gov/vetapp08/Files3/0823887.txt  July 2008 decision

In part:
“In this case, the duty to notify was satisfied by way of 
letters sent to the appellant in February 2006, April 2006, 
September 2006 and October 2007 that fully addressed all four 
notice elements.  The letters informed the appellant of what 
evidence was required to substantiate the claim(s) and of the 
appellant's and VA's respective duties for obtaining 
evidence.  Although the notice letters were not sent before 
the initial AOJ decision in this matter, the Board finds that 
this error was not prejudicial to the appellant because the 
actions taken by VA after providing the notice have 
essentially cured the error in the timing of notice.  Not 
only has the appellant been afforded a meaningful opportunity 
to participate effectively in the processing of his claim and 
given ample time to respond, but the AOJ also readjudicated 
the case by way of a February 2008 supplemental statement of 
the case issued after the notice was provided.  For these 
reasons, it is not prejudicial to the appellant for the Board 
to proceed to finally decide this appeal as the timing error 
did not affect the essential fairness of the adjudication. “ 
Can you scan and attach the SSOC here? (cover thye personal stuff, name,addresss, c file #)

“ORDER

Service connection for a left knee disorder is denied.

A compensable disability rating for a low back disability is 
denied for the period from November 13, 1995 to June 23, 
2002.

A disability rating of 10 percent for a low back disability 
is granted for the period from June 24, 2002 to April 2, 
2006, subject to the law and regulations governing the 
payment of VA monetary benefits.

A disability rating of 20 percent for a low back disability 
is granted as of April 3, 2006, subject to the law and 
regulations governing the payment of VA monetary benefits.”

It appeared to me that the IMOs you had sent to the did not comply with the IMO criteria we have here at hadit.

I developed this criteria from Dr. Bash's IMOs I got because as a former VA doctor himsel;f. He knew exactly what the VA was looking for in IMOs.
Although the VCAA seems to have advised veterans in a convoluted way, that they should obtain any medical evidence at all to support their claims, the VA has never really given vets any inkling of what a strong IMO should contain,so it is always best to follow the IMO info ere at hadit.

Any docs who have never prepared IMOs before or the VA would appreciate knowing exactly wat the IMO must cover to make it valid.
This final decision was not a remand.
I think you have two options:
File a Motion of Reconsideration at the BVA:
 http://www.va.gov/vaforms/va/pdf/VA4597b.pdf
Or if there is a legal error in this 2008 decision you can file a Motion of CUE against the BVA.

The SSOC,if we can see if, will reveal the RO decision that the BVA decision was based on, and then reveal if there is possibility of filing wither a Reconsideration Motion or a CUE Motion.
There is no time limit in filing either CUE or a Reconsideration Mothion with the BVA.

“The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision on your motion for the Board to review

one or more of its final decisions for clear and unmistakable error (CUE). If you are satisfied with the outcome of this decision, you

do not need to do anything. However, if you are not satisfied with this decision, you have the following options, which are listed in no

particular order of importance:

Appeal to the United States Court of Appeals for Veterans Claims (Court)

File with the Board a motion for reconsideration of this decision

File with the Board a motion to vacate this decision.

None of these things is mutually exclusive - you can do all three at the same time if you wish. However, if you file a Notice of Appeal

with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a

Notice of Appeal with the Court

before

you file a motion with the BVA, the BVA will not be able to consider your motion without the

Court's permission.

There is

no

time limit for filing a motion for reconsideration or a motion to vacate with the Board.”

(from above BVA pdf.)

The BVA gives 3 options on the decision, and this pdf was enclosed with your BVA decision,or sure should have been)

The US CAVC option period is over for you but the two other ways can possibly get your foot right back in the door.Possibly.....

But A lot depends however on the wording of that SSOC that the BVA depended on and also what did the VA know and when did they know it...if you can scan and attach the SSOC here, please include the Evidence list as they might well have neglected to consider something important.

I do feel the past IMOs lacked the medical nexus VA needs to have.

[elcamino_77us]

"Was that PEB evaluation for the knee that IS service connected now?"

Yes, that was for both knees and my back. However, they did not include all of my medical problems. If they did I should have been medically discharged. That is still a possibility

The VA service connected the right knee for arthritis sometime around 2003.

Nexus examples I gave him

Nexus Letter Example 1.pdf

Nexus Letter Example 2.pdf

From what I've been able to figure out, yes the IMO failed to provide a nexus, mainly from what I've read, it lacked a Current Condition.

SSOC

20080226 SSOC_Redacted.pdf

The American Legion's response

20080602 BVA Presentation_Redacted.pdf

From what i can tell there was documentation that the VA had in their possession that they completely ignored. They mainly dealt with the back issues. However, the ignored documents prove that I had arthritis 3 1/2 months after my discharge and therefore rated 10% from the date of my discharge under 38 CFR §4.40, §4.45 & possibly §4.59

Dr Choi 28Feb1996_Redacted.pdf

Dr Choi 28Feb1996 Addendum 14May1997_Redacted.pdf

April 2006 C&P, this time Deluca is actually used. The Examiner was a PA-C Part of her report on my back:

"In 1994, he had radiation of midback pain to both lower extremities and bilateral feet with certain movements. He can't say which particular movement that was. He has numbness in the low midback to the left leg, right foot numbness that is constant now.

DIAGNOSTIC AND CLINCAL TEST RESULTS:

1. Thoracic spine films - Mild degenerative changes with spurring in the mid to lower thoracic spine.

2. Lumbar spine films - Degenerative changes of the lumbar spine with spurring, and minimal old compression of L3

3. CT of the lumbar spine:

T12/L1 mild broad based disc bulge without significant narrowing of the foramen.

L1/L2 Disc bulging without significant foramina! narrowing.

L2/L3 Broad based disc bulge and bilateral facet degenerative change.

L3/L4 Broad based disc bulge. Bilateral degenerative change, moderate central stenosis.

L4/L5 Broad based disc bulge. Bilateral facet change and mild to mod central stenosis.

L5/S1 Broad based disc bul e. no significant foraminal narrowing.

DIAGNOSIS:

1. Lumbar 4/5 and 2/3 minimal disc bulging 2002
2. Multiple levels of bulging disc in the low thoracic, thru out the lumbar and sacral 1 spine with varying degrees of central stenosis 2006
3. Degenerative arthritis with spurring in the thoracic and lumbar spine. 2006
4. Bilateral Retropatellar pain syndrome 1994
5. Left cortical lesion of the distal left femur . MRI 1995, x-ray 2006"

On this part I had been involved in two separate accidents which only one of them caused me any problems. However If I hadn't had preexisting conditions from the Military, there would never have been a problem as the car that bumped into the back of mine only damaged my bumper. I was experiencing shots of pain reading from the middle of my back down both of my legs my legs before the accidents. It was ruled Since there was no way to separate the conditions, the VA was responsible for all of the condition.

"There has been some progression in L4/5 to mild to moderate central stenosis. This Vet has certainly had further changes in the thoracic, lumbar, sacral spine that is attributed to futher injury in the 2 mentioned MVA's which may still have legal action pending there. In summation there is some progression in the Vets L/S strain and degenerative arthritis there, but within any neurological disability."

As you can see, the BVA's misquote of the examiners report completely changes the meaning of her statement concerning stenosis and I believe therefore constitutes a CUE.

Would a CUE of part of the BVA decision require a complete redo or would it only effect the part considered in error? Another words would a Cue for the Back help fix the left knee decision? I'm thinking not, but it might also get them to check to see if there might be other errors.

Right now my Current Claims are all being tied up with a Appeal on my clothing allowance. I was told by the VA the claim wouldn't effect anything, however...... Once my records are back at the RO in Atlanta, I will make an appointment to review them for the ignored documents.

Thanks

Bill

[elcamino_77us]

I have a question concerning my case, I testified at a BVA hearing and was wondering how much weight is placed upon the testimony as well as the documents entered into evidence? The evidence showed that I had arthritis when I was discharged. I'm going to have to check to see is the documents were ever used by the VA for rating purposes.

Thanks

Bill

[elcamino_77us]

Ok, I've made a list of the different areas that I either disagreed with or I see where there maybe possible CUE's. Again I found a another problem in my BVA "DOCKET NO. 97-05 565 Jul 17, 2008" concerning misquoting medical records.

Dr.Choi wrote, “He does clearly have median nerve distribution numbness symptomatically.”

Yet, the BVA felt it necessary to change the wording to make their case. "He did not clearly have any median nerve distribution numbness symptomatically."

If you have any questions, I posted Dr. Choi's medical report earlier in this post and my docket number is listed so you can read it for yourself.

Bill

[Berta]

"Would a CUE of part of the BVA decision require a complete redo or would it only effect the part considered in error? "

A Motion for CUE filed against the BVA only involves the legal error the BVA made, and does not trigger further review.

CUEs are not involved matters,if the CUE fits into the CUE criteria. If you read the CUE awards Carlie just posted recently here, you will see how simplified they really are..I think my SMC CUE claim is here too in the CUE forum. It involved 3 separate CUEs in one decision and only took a few paragraphs, all on one page with additional pages for the copies of the legal; evidence.

I consider the third prong of CUE the most important one:

that the CUE manifested an altered outcome to the claimant (meaning monetary loss)

VA can make lots of typos and even some ridiculous errors ( I have found plenty of them in past SOCs etc I got)

but the only errors VA makes, that matter ,are the legal ones that erroneously deprive a veteran or survivor of

a proper monetary award.

BVA CUE regulations are found at the BVA web site and maybe they rattled them off in the CUE claim awards from BVA that Carlie recently posted here.

It pays to study CUE claims , those denied at the BVA as well as those awarded , before filing a claim.And to go over all the CUE info here at hadit.

"Dr.Choi wrote, “He does clearly have median nerve distribution numbness symptomatically.”

Yet, the BVA felt it necessary to change the wording to make their case. "He did not clearly have any median nerve distribution numbness symptomatically."

It seems to me the BVA might have made some typos or wrong statements that certainly change what the facts were, however,

“From what I've been able to figure out, yes the IMO failed to provide a nexus, mainly from what I've read, it lacked a Current Condition. “

and I think that was the problem here.

IMO doctors must make either direct references to the veteran's SMRs as etiology of a disability,or direct references to evidence of the chronicity appearing at a 10% or more ratable level,within one year after service, or as secondary to an established SC disability, with a full medical rationale of the nexus.

“The evidence showed that I had arthritis when I was discharged. I'm going to have to check to see is the documents were ever used by the VA for rating purposes. “

Good because that evidence is what the VA needs, and also a confirmed diagnosis of the arthritis and documentation of chronicity.

Edited August 6, 2013 by Berta