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?

[Lemuel]

asknod posted a win on CUE:  

Click on the "r(1) with prejudice" line in the quote above.  

This link is in the post to follow to see some examples of CUE at least at the AOJ level:  https://community.hadit.com/applications/core/interface/file/attachment.php?id=9852

I'm guessing asknod got this decision for his client on remand.

 

Edited November 26, 2017 by Lemuel

[ardodd]

Thank you all for your helpful input and recommendations. Let me see if I can upload my documents. This all of the Claim documents, I will upload the Naval Review Board's documents next.

[ardodd]

Here is a scanned copy of the Naval Review Board and their Decision on April 27,1990

[ardodd]

This is what i found so far when looking up previous claims that are similar to mine. 

In Dingess, the

U.S. Court of Appeals for Veterans Claims held that, upon

receipt of an application for a service-connection claim,

38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to

review the information and the evidence presented with the

claim and to provide the claimant with notice of what

information and evidence not previously provided, if any,

will assist in substantiating, or is necessary to

substantiate, each of the five elements of the claim,

including notice of what is required to establish service

connection and that a disability rating and an effective date

for the award of benefits will be assigned if service

connection is awarded.

 Copied from: https://www.va.gov/vetapp08/files2/0813808.txt

[ardodd]

That is from:

 

Citation Nr: 0813808	
Decision Date: 04/25/08    Archive Date: 05/01/08

DOCKET NO.  02-14 307	)

what is amazing is that the New Orleans Regional Office and the Rating Specialist never give my claim a chance. I was not sent any letter letting me know what evidence or other records that were or would be needed.

Claim filed on 6-18-99

Decision made on 7-08-99

Less than 30 days my claim was looked at then Denied and sent me the Notice of Denial. This why I to this day I feel that the VA denied my Due Process Rights. Also when looking at the above Citation the VA did not give me any Notice of further evidence needed. 

I do have a question about the Reference to **The Five Elements of a Claim** 

What are they?

Did the VA violate any of those when they did not allow me the opportunity to know what else would be needed to substantiate my claim? 

[ardodd]

I know everyone is tired of seeing my Post come up again and again. So I will try to not keep being a bother.

I was looking and reading older Citations that might help me understand some of the reasons why the VA Processed my Claim so quickly. And to find what they did wrong when they just plain denied it without any further assistance. I found this Citation which did kind of explain alittle more about the 5 Elements of a Claim.

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REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to notify and assist

The Veterans Claims Assistance Act of 2000 (VCAA), (codified 
at 38 U.S.C.A.  §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 
2002)), imposes obligations on VA in terms of its duty to 
notify and assist claimants.  Under the VCAA, when VA 
receives a complete or substantially complete application for 
benefits, it is required to notify the claimant and his 
representative, if any, of any information and medical or lay 
evidence that is necessary to substantiate the claim.  38 
U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2006); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) 
(Pelegrini II), the United States Court of Appeals for 
Veterans Claims (Court) held that VA must inform the claimant 
of any information and evidence not of record (1) that is 
necessary to substantiate the claim; (2) that VA will seek to 
provide; (3) that the claimant is expected to provide; and 
(4) request that the claimant provide any evidence in his 
possession that pertains to the claim.  VCAA notice must be 
provided prior to the initial unfavorable adjudication by the 
RO.  Id. at 120.  

VCAA notice requirements apply to all five elements of a 
service connection claim.  Those five elements include: 1) 
veteran status; 2) existence of a disability; (3) a 
connection between the veteran's service and the disability; 
4) degree of disability; and 5) effective date of the 
disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

https://www.va.gov/vetapp07/files3/0724849.txt

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