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?

[ardodd]

Here it is without the quotations:

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

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).

 

I be poop-poop this is of no help as the VA Rating Decision was in 1999 and pre-2000 Act.

Does anyone know of any such type of Law that would of protected me and my interest in this Claim prior to 2000. As all I keep pulling up is post 2000 Citations which the VA knows so they continue to road block me.

[Lemuel]

You need your medical documents from the physicians who treated you, both military and civilian.  You should have been given a notice that you could apply to the VA by your Medical Board.  The VA grants disability compensation for items that do not prevent you from serving.

Example, I served for 9 years with tinnitus from noise trauma and a hearing loss corrected by a hearing aid.  Thus it did not prevent me from serving so I didn't even get a medical board.  I was ask about my head injury but because of the area of the brain affected I wasn't aware that I had problems and didn't ask for an evaluation so it wasn't until a psychiatrist noted some subtle neurological signs 10 years after I got out that my TBI was diagnosed and compensation for the "mental health conditions" granted.

Your military health record, VA outpatient and inpatient treatment records and any civilian treatment records need to be reviewed together with the items you posted in order for those of us with some medical experience can assess whether any errors have been made.

I'm going to be uploading the relevant Rating Decisions, BVA Decision and documents indicating Clear and Unmistakable Errors for others on Hadit can review and make recommendations.

I recommend you scan into .pdf files or go to a print shop that can do it for you.  The scans you posted aren't very readable for old people like me.  I can enhance a .pdf file so that I can read it.

My battle with the VA began in 1985.  It was partially resolved in 2017 with a BVA decision.   So, yes, join the crowd.  I'm still working on my decisions.  But I've finally been put on a medication that helps so the VA can't take advantage of my stupor any more.

Edited November 27, 2017 by Lemuel

[ardodd]

37 minutes ago, Lemuel said:

I recommend you scan into .pdf files or go to a print shop that can do it for you.  The scans you posted aren't very readable for old people like me.  I can enhance a .pdf file so that I can read it.

I can understand the clarity of the documents myself. Most of them are scanned copies of my C-file which New Orleans RO sent me. I will do my best to get a digital copy of my C-file this week with all updates and New Claims I have submitted.

I find the whole thing crazy as my Claim in 2015 the Rating Specialist told me that it would take them about a week to get a copy of my SMR's. I finally emailed him scanned copies of my SMR's, which I did save the emails showing that I sent them. But it does seem very odd that he would tell me that he would have to look at my SMR's after Denying my previous Claims. I am not talking about Private Medical Records but my Service Medical Record's. Then again he may of been testing me to see if I really did have proof of my medical conditions while in service. 

[Lemuel]

The hard part is getting copies of your medical file that were never obtained by the RO.  Perhaps because you didn't send the "Release of Information" form or a FOIA request to the Medical Department for your old hard copy medical files.

I have a pending request for my Medical File (not the C&P file) to replace or insert missing items in the C&P file.  No action by the Record Management Center.  They instead sent me another copy of my C&P file.  You have to send a NOD and appeal when this happens but it doesn't do any good until you get to the CAVC.  Even the BVA Judge told me that the BVA was unable to get missing documents from the Medical File.  Good luck she said.

I'm attaching my motion to correct the RBA for those who are interested.

20171117 Motion to correct RBA FAXED.pdf

[ardodd]

47 minutes ago, Lemuel said:

I have a pending request for my Medical File (not the C&P file) to replace or insert missing items in the C&P file.  No action by the Record Management Center.  They instead sent me another copy of my C&P file.  You have to send a NOD and appeal when this happens but it doesn't do any good until you get to the CAVC.  Even the BVA Judge told me that the BVA was unable to get missing documents from the Medical File.  Good luck she said.

I find this interesting as when we request our C-file and all contents related to us. Are we sure that we are getting the full version or just the all you need to know version.

I say this because I just noticed in my notes I made a entry where in a 2010 Claim I received a phone call from the VA about signing the Medical Release form for a private doctor who had performed 2 arthroscopic knee surgeries ( 2001 & 2010 ). This was in February of 2011 and told them I had mailed it back that day and to not make a decision on my Claim. Low and behold the Medical Release form showed up in the Mail room for processing on March 09,2011. 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.  

[ardodd]

I am still researching and hoping to find a smoking gun somewhere. But in reality I am still just trying to find out if the VA did things correctly or if they denied any of my Due Rights. 

I found this online and converted it over to a PDF format so others can see and read it. 

§3.159 Department of Veterans Affairs assistance in developing claims.