25 Year Long Service Connected Disability Denied After C/p Exam.

[ardodd]

This epic battle began 25 years ago when I was Discharged from USMC with a Medical Discharge for Bilateral Patello Femoral Syndrome in both knees. I filed when I got out in 1990, or so I thought I filed, according to the VA. I am not getting any help from VA on it at all. But I will move on and let that be my battle to prove.

All of this supposedly began in 1990, but it was not until 1999 when the VA said I filed a Claim. So I will just go from there, I supposedly submitted a Claim then. But in 1999 I was Denied my Claim for Disability and supposedly they sent me a letter telling me I was Denied. This was after signing the private hospital and doctor release forms. Of which to the knowledge of all these places they were never contacted.

So forward to 2010 when I Appealed that decision in 1990 stating they never Reviewed my Medical Records from the Military and from private hospitals and doctor's. Plus I signed the Release of Medical Records form again. And yet I was sent a Denial of Claim stating I had not provided any new material evidence. So in 2011 I Appealed that again and was told that after Review I had not provided new material evidence supporting my Claim. I was frustrated so I just dropped it and did my best to work until 2014 when I was struggling to keep employment and unable to perform daily task. And after being involved in automobile accident I tried in 2015 to go back and try to resolve this 25 year problem.

You may ask why are you know deciding to finally set down and try to resolve it?

Until now I did not understand all the laws and complications this process has. So after filing an Apeal for all the years I had been Denied and taking this matter to some Senior Board members in Washington,D.C for help and and guidance from the VBA. I was unclear of any of it. But my biggest Question has always been to the VA. First why was I not processed when I got out and was paid Severance for my Disbility. Second why have I been denied a C/P exam if they say I had no new material evidence if I signed the Forms for them to get the Medical Records. And the biggest clue for me was during this year when I filed an Appeal and was told that it would take between 2weeks to a,month for them to have my Service Medical Records scanned into the System.

Hello that is like handing me a Loaded Gun. Why would they need to send off to St. Louis for my Service Medical Records after Denying my Claim for over 25 years. I have been told by every VSO,RO and every VA rep that they have access to that file and it was used to Decide my Claim. Ok, if they had it then why did they need, more Importantly why did I send by email a scanned Certified copy of my Service Medical Records for them to use in my Claim this year. It was not until I sent them my certified copy did they let me have a C/P exam. And after 25 years do you honestly think that I would have the exact same symptoms and disabilities as I did 25 years ago. Why of course not, after all human,bodies and disabilities change.

But according to the C/P examiner in his Nurse Practioner wanting to play doctor said that my condition now was not what I was Discharged from the USMC for. And that what he diagnosed me for is not debilitating. Honestly where do they get these people from. He did not do a full exam,and his Non-Board Certified Orthopedic opinion is what 25 years of frustration has turned into. But I am Appealing this poponderous and unethical wisdom.

Sorry this so long but I felt it needed a merit of background, I have left out a lot of details to make it shorter. But my question is two things.

1) Did or does the VA have to grant or give a Veteran a C/P exam if they were Medically Discharged? This was in 1990

2) If the VA did not have to grant me exam even back in 1999,2010,2011 and it would of proved my Claim why would they still not give one and state I did not provide new material evidence even if I showed them records of not one but two arthroscopic knee surgeries as proof?

3) The biggest Question I have is how can the VA Board make any Decission without using my Service COnnected Medical Records and why would they not even acknowledge that I was Discharged from the Service with the Disability?

I would like to say that 2weeks ago I witnessed some VSO's shredding old folders from a filing cabinet. I asked what they were and they told me they were just old folders or files over 7 years old and they had to go. So I am,asking how is it that if someone like me wants to Appeal and old Denialxand might need the proof of the doctor's notes or something from it that was missing or not included. Why would they not scan and record all the information onto a CD or external type hard drive for cataloging. I am just asking has anyone known of this to happen and later the VA says,they never received anything. Kind of makes me wonder why the VA says they never got my 1990 Claim and says I did not try for Disability Compensation until 1999. What your thoughts on it?

[Berta]

I would think many of us , myself included, can look back and be astonished at our ignorance of the regulations,when we started out.

I was wrong on where I thought the CUE would rest. But this, the quote from you below,

to me is definitely a CUE under 38, CFR 4.6:

"§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

https://www.law.cornell.edu/cfr/text/38/4.6#

" But the Rating Specialist made his decision on February 25,2011 and I asked for them to not make a decision on February 24,2011 to allow the medical records and time to process them.

i did not find this out til 2015 because they did not ever process the request for medical records from the doctor. But the records where submitted in the 2015 Claim which they ignored what the doctor said and did to treat me. "

I have won CUEs on this part of that regulation:

"Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

If it is Probative, such as private med recs, IMOs, buddy statements etc etc etc and they do NOT list it as Evidence or refer to it in any way in a decision that is a CUE plain and simple.

And I feel very stupid when I look back years ago at opportunities I missed ,to use it under CUE, and I chose instead to keep sending in evidence ,and they continued to ignore it.

If you ever google my Shreddergate testimony on line to the H VAC subcomittee on Disability , you will see a small part of the outrageous BS  I went through....for what- they still had to properly award my claims....

Dont blame yourself- the claims process can become overwhelming.

One of the lowest days of my life was when I got a SOC long ago  that denied my claim and I wanted to give up.

I got very depressed, then very angry, then took action ----to rectify their unconscionable statement at the end of the SOC. I should have Cued them right away many times when I failed to (I have had multiple claims) and I am pushing for a new CUE regulation because what I learned to do has worked for me and for a few others here.

I dont think there was a 1977 CUE because you did get the 10%- they did not cause a manifested outcome to your detriment....unless the rating based on the DCs and the evidence was wrong and should have been higher.

But I  think a  CUE rests in the statement above, in the more recent  decision.

The VA WANTS us to get frustrated and give up.For spite we have to stay as healthy as we can, and refuse to become discouraged!

The Camp LeJuene Bad Water regulations , diseases, disabilities from them, and discussion and maybe one or two success stories are here under a search.

I always use google to search and my search brought up lots of info her and elsewhere:

 

https://www.google.com/search?q=Camp+Lejeune+bad+water+vets+hadit.com&rlz=1C1CHBF_enUS695US695&oq=Camp+Lejeune+bad+water+vets+hadit.com&aqs=chrome..69i57.13151j0j7&sourceid=chrome&ie=UTF-8

Here is one of the important hadit threads :

https://community.hadit.com/topic/46699-camp-lejeune-water-contamination-exposure/#gsc.tab=0

 

 

 

 

 

Edited December 1, 2017 by Berta

[Lemuel]

Hang in there ardodd.  Just don't expect too much from the attorney's on this.  If you catch the judge I got or one just as thorough at the BVA you'll be O K.  And it is not 10% anymore if you are having the trouble with it you say.  And if the BVA judge sees the connection between the back and the hip even though it may have been aggravated by the MVA you'll get a paycheck.  Didn't mean to say give up.  Just meant to realize the attorney's aren't going to be a lot of help on it.  Study it and put up your own fight.  Just because the attorney is being willing to wait doesn't mean you have to be.

[ardodd]

1 hour ago, Berta said:

If it is Probative, such as private med recs, IMOs, buddy statements etc etc etc and they do NOT list it as Evidence or refer to it in any way in a decision that is a CUE plain and simple.

@Berta

In my 1999 Claim clearly identified a In-Hospital stay and requested help in retrieving my medical records. Now the VA did nothing as usual, yes we all know that it is not their responsibility. Also if we are not able to retrieve those ourself's it does not mean that there is No Medical Evidence to establish a connection. With that being said, I was not able to get those records. But I did find the results from a FCA ( Functional Capacity Assessment ) test given to me while in the hospital. And it gives great detail of the condition of my health.

I submitted it as evidence to support my Claim. And was told by the VA and later by the woman C/P examiner that they do not accept FCA's as evidence because they use genomiter's not tape measure's.

I do not see where the RO or DRO allowed this evidence and the C/P examiner refused to review it or even consider it in her DBQ.

How can they not allow it as evidence?

They have a degree in that medical field and it is evidence of a existing medical condition. I feel that they did me wrong by not including or giving any weight to a medical opinion from a trained professional. it is new and material evidence that proves a condition existed but since they do not use a genomiter it is not considered new and material?

I know that if they would accept it or be made to accept as evidence then they would have to go back to 1999. And if it back to 1999 they would have to be reminded that the FCA gives specific details on the ratings used to judge DBQ's now days. And if it was acceptable I would of most likely had a higher rating for disability with a wife and 2 children.

So yes for any lawyer it would be considered it a bigger back pay, but how do i force them to include the FCA as they refuse to accept it as evidence?  

[Berta]

" how do i force them to include the FCA as they refuse to accept it as evidence?  "

You file a CUE on any decision that did not comply with the evidentiary requirements of the regulation above. ...38 USC 5109A.

We have considerable info here in the CUE forum and even some templates.

   Did the VA use a goinometer in the  C& P exam?

Do you have the results of that exam.   If so  did you scan and attach that in this thread already---if so I will try to find it.......this is a long thread.....

[Lemuel]

Thanks for this info, Berta!  I promoted that.

adodd, I'm attaching my certification to the BVA that I just found in the RBA.  You probably need to ask your attorney for a copy of it including his filing to make sure you don't need to add something. 

My attorney didn't ask for the tinnitus date revision to the "liberalization date".  She should have known or looked it up.  I didn't figure it out until I got involved in doing my NOA and request to correct the Record Before the Agency (RBA).  I thought the error was not going back to my 1974 discharge date.  Turns out noise trauma tinnitus was at 0% until 3/16/1976 and that is the earliest date I can claim.

My record is clear that I had tinnitus for 9 years in the navy before I was discharged from noise trauma.

Since we both have back injuries that are secondary to service connected conditions it may be useful.  Mine is also secondary to a preservice TBI (4 hours of delayed unconsciousness part of which was semi consciousness) and aggravated by a SC TBI with 50 hours of delayed unconsciousness followed by another 30 hours of semi consciousness. 

My back injury was the result of an MVA that was diagnosed as being caused by an altered state of consciousness (partial absence seizure of about 6 seconds).  My back injury is in remand for development of a CUE because of another veterans document indicating a back injury prior to the MVA was considered as mine.  I just located a SSA document giving the date of my back injury as 1985 erroneously.  I had no problems before April of 1991.  Even so it would have been secondary service connection if compared to the rest of my OPTR and IPTR files.

20150929 Certifcation of Appeal to BVA_Redacted.pdf

Edited December 1, 2017 by Lemuel
clarity

[ardodd]

59 minutes ago, Lemuel said:

You probably need to ask your attorney for a copy of it including his filing to make sure you don't need to add something. 

i fully appreciate your help @Lemuel and @Berta.

Like I mentioned before Hill & Ponton turned me down yesterday and then Chisolm turned me down today. They recommended I go to the DAV and get help. That is why my Claims are so screwed up in the first place.

I don't know what I am trying to do anymore. I am confusing myself and not finding documents I know I turned in. It is the same as it has always been I am in way too far over my head.