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

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elcamino_77us

Question

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 by elcamino_77us
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@BertaUnfortunately, I do not have that 2016 denial, however, it was for a different diagnosis than that of 2013 so I believe I would need to focus in on 2013? In addition, I believe the terminology of denial was same as usual, "Did not occur or worsen during active duty, etc etc" I never had anything show up in EBenefits under disabilities (such as Depression/Anxiety Not Service Connected) for the 2013 MH CP exam either, even though it diagnosed me with Depression at that time. With that 2016 denial they did add the other diagnosis to my disabilities list as "not service connected". However, they never did this during 2013 when they did DX me.

So 2013 I would have had at least a 10% rating for Depression/Anxiety with Insomnia, chronic pain?

Currently, I was awarded secondary SC for my MH. It currently lists as "adjustment disorder with Depression/anxiety, chronic pain, and insomnia. I feel this should have been the DX back in 2013 had the doctor not rambled on about the issues that were exacerbating the issues I had.

So to me, it seems like they had a DX but wanted to pin it on personal things. My marriage issues, as examiner stated, started before I was out. Which was WHY I was having marital issues...its like they just quickly shoved me DX and issue under the rug.

Here is a look at my C&P from then. Perhaps it can help shed some light for you as well??

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If you do find the 2013 decision, it might help but since it is for a different MH, I do not see that as a CUE.

A disability should be at least at 10% and listed as NSC, in order to support a valid CUE, if the disability subsequently becomes service connected.

I guess a NSC at "0" might be able to be CUED, if it becomes service connected,  but I have no idea how that would work. If an NSC has a zero %, and the medical evidence reveals it should be higher, that is the time to appeal the "0".

I dont recall ever seeing that type of CUE.

I will check the BVA site when I have time.

Others will chime in on that.

 

 

 

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4 hours ago, Berta said:

If you filed for a MH issue secondary to the SC issue, with the same diagnosis as you got on the award letter for the MH issue, and VA had possession of medical information that warranted a secondary SC, at that time, for the MH issue -that could be a CUE, if the MH issue raised to a level of at least 10% at the time of the past decision.

This is the interesting part. Now, this could just be my memory slipping but I do not recall putting in for a MH claim until 2016 personally (which was a different DX altogether so 2016 claim would be moot, I believe). Which is why when I found the C&P for MH in 2013 I was very surprised. I could not recall putting in for it then but the C&P exam report states that I did in the beginning (like all do at the beginning of the document).

I wonder if they were looking at it because they were trying to see if it was ratable and maybe presumptive after service along with my knee? I also did not have the DX listed in my Ebenefits for any MH claims until I tried in 2016 and shows as NSC. So this 2013 C&P, to me, is a bit of a mystery. But I have that C&P stating depression and anxiety, showing I was having psychiatric issues toward the end of my active time. I also have my reserves profiles that begin in 2012 and continue thru 2014, which was also available back in 2013.

I remember talking to mental health around same time as my Knee C&P, which I thought was a screening. My Left Knee C&P exam shows that a psychiatric disability existed and check boxed "Mental Disorder (other than PTSD)".

So I wonder if the MH C&P exam was based upon a referral or that my Mental Disorder was noted in the knee C&P (I had the injury in 2009 so I had already been dealing with symptomology for about 4 years at that point).

So it would also appear the VA had the same evidence as I used this time around for my current MH rating. I had stated that I had insomnia early on and was sort of the first symptom to develop (aside form pain) and led to the depression and was all related to my SC knee. They sent me to VES for new C&P for my 2019 claim, examiner was thorough and apparently opined favorably (have not seen that VES exam report as I am waiting on the VA to send me my C-File that I requested back in January of this year...).

From start to finish the claim was done in 3 months....so it makes me wonder if they should have came to this same conclusion in 2013 or back to the presumptive date of my knee 2011?

Thanks for taking the time to help!

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45 minutes ago, Berta said:

If you do find the 2013 decision, it might help but since it is for a different MH, I do not see that as a CUE.

A disability should be at least at 10% and listed as NSC, in order to support a valid CUE, if the disability subsequently becomes service connected.

I guess a NSC at "0" might be able to be CUED, if it becomes service connected,  but I have no idea how that would work. If an NSC has a zero %, and the medical evidence reveals it should be higher, that is the time to appeal the "0".

I dont recall ever seeing that type of CUE.

I will check the BVA site when I have time.

Others will chime in on that.

 

 

 

That is the thing. I did not put in for one in 2013. But a C&P was performed. Nor was I able to appeal anything. It was as if they did a C&P for MH, initiated a claim maybe? But then did nothing with it? So I guess my confusion lies more there? 

Edited by Foxhound6
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