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HadIt.com Anniversary 24 years on Jan 20, 2021
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Fixing Previous Claims And Appeals Due To Inadequate C&p Exams And Cues


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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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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 Ve

“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 de

A final thought here....most CUEs occur when the VA has given a disability a NSC rating in past decision, unappealed, which subsequently became SC. One can assume that the rating (although NSC in th

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  • HadIt.com Elder

Thanks for posting this is the main forum-

I dont do PMs or emails or profile questions because- if I give inaccurate advice , there is no one to correct me.

And because this is a public forum, it means the  replies that  help one vet might help many more. We gets hundreds of a guests a week , who often formally join hadit- to tell us they got enough info here as a guest , to succeed in their claims.

Can you scan and attach here the 2016 denial for the MH issue, as to the Evidence list and their rationale for the denial?

Cover your C file # ,name, address prior to scanning it.

You said :" He did mention before this that I was suffering from insomnia in service and taking meds."

What is the diagnosis you have for that? 

Sometimes a CUE claim can certainly recover a better EED.

we have a wealth of CUE info in our CUE forum here.

 

 

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  • HadIt.com Elder

Actually this thread holds the basics of CUE. 

It is in my April 2014 reply above.

If you filed for a MH issue secondary to the SC issue, wth th 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.

What VA means by "in their possession at time of alleged CUE" means medical evidence at anywhere within the VA system.

I do not feel the C & P exam will help you with a CUE, unless the other insomnia disorder could be service connected.

C & P exams can become a basis for CUE , only  if the VA depends on the exam and then uses a wrong diagnostic code or something else, in the decision ,that would be a "legal " error.

For example VA committed multiple CUEs in a 1998 award decision I received, that my former vet rep told me not to appeal because, as he stated "1151 issues are different than direct SC issues."

Without the internet as well know it these days, I was not sure if he was correct-but he was wrong.

I filed one CUE that is still pending ( never acknowledged since 2004)because twe VA failed to code my husband's 1151 heart disease on the 1998 award letter. However under my 2010 Nehmer claim they did code and rate it, and paid the retro. I recently filed for an accrued award on the 1151 IHD ( due to a OGC Pres Op, and just found out that this claim and another claim I filed ,have disappeared from the VA and are not pending. I called the White House Hot Line on that.

My point- The medical evidence in VA's possession in 1998, and 2010, is the same as it is today-

An accrued claim also must be based on medical evidence in VA's possession at time of the veteran's death.

When I reopened in 2003 for a direct SC death , the RO had to contact the Reguonal  Counsel VA, for proof of my FTCA case.

The Regional  Counsel VA was in possession of the medical evidence, the same as what I had sent to them -which they had ignored.

Regional COunsel also called a CUE on them due to a letter in my C file I had written, which they failed to act on. A High 5 figure check came in the mail and it took me some time to get the RC CUE letter and the

explanation of the retro .The retro was still missing an entire year of DIC so I CUED them , and that $$$ was in the mail 3 weeks later.

CUE is a powerful weapon against any legally  erronous decision that is detriment to the claimant.

We have had many successful  CUE vets here over the years.

 

 

 

 

 

A C & P exam itself cannot be basis for CUE.

 

 


 

 

 

 

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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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  • HadIt.com Elder

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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