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4mydad

CUE? Not using SMR?

Question

Hi everyone.  I am new to this site and want to commend all of the Veterans and advocates who devote endless time and energy into those who are new to the claims process.

I will try to keep it short.  Some background-

My dad, 68 years old, is a Vietnam vet.  He was drafted and served 6/68-3/70.  He is currently rated at 80%.  He initially claimed "injury to both feet" in 1983 and was denied.  Needless to say, information was not as readily available in 1983 and like he said, "I was busy raising a family to fight the VA."  He claimed foot disorders (plantar fasciitis, foot injury) again in 1996, 2004, and 2010 all denied because medical evidence of service connection was not found.  Fast forward to November 2015 when I got involved.  He has gotten to the point where he cannot stand for more than 5 minutes without pain.  It breaks my heart.  I immediately jumped head first into his records and I am just amazed at what I found.    

His SMRs clearly show symptoms, treatment, and diagnosis while serving and he was treated prior to 1983 in non govt facility and since 1983 at the VA. 

Here is a timeline of treatments found in SMR-

CHRONIC FOOT CONDITIONS-EXHIBIT B

1968-1970

 

1/22/68 –“Foot Trouble” marked “No,” Exhibit A, pages 1-4

6/25/68- reported for duty in Ft. Benning, GA, Exhibit D, page 1

7/16/68- “Feet are going flat” reported to clinic, referred to podiatry for “Falling Arches” Exhibit A, page 10

7/16/68- podiatry clinic notes “stress fractures at the insertion of the tendo-Achilles” prescribed heel pads and light duty, no running.  Exhibit A, page 10

7/22/68- “no improvement” expedite to podiatry again, Exhibit A, page 11

7/22/68-notes “bilateral stress fractures of os calcis, still having      trouble with feet” Exhibit A, page 11

8/6/68- clinic notes “pain over heels when pressed, bilateral stress fractures,”  Exhibit A, page 12

8/9/68-no significant change, “feels arches have fallen since in Army,” “deep aching both feet, ankles and feet,” jelly casts made. Exhibit A, page 13

8/16/68-“still having trouble with feet, pain in both heels for 2-3 weeks, notes that “heel pads  make pain worse.” Exhibit A, page 10

 

8/16/68-“clinical early bilateral stress fractures” noted, patient claims that “arches have fallen since in the Army,”… “pain in both plantar surfaces and heels.” Exhibit A, page 14

 

8/27/68-9/6/68-“admitted to ER with cellulitis of the knee, deep pain under patella” Exhibit A, pages 15-19

 

9/10/68-“cellulitis is improving, patient has had chronic problem with feet since BT, having constant dull aching feet especially when standing.” Exhibit A, page 19

                  

9/11/68-“tenderness plantar aspect of both feet,”  Exhibit A, page 20

 

9/17/68-(Dr. notes frustration) “This man has painful feet . . .not getting

 better . . . this man needs some concrete answers as to what the problem is and what to expect” refers to orthopedic clinic for “chronic foot pain”, Exhibit A, page 20

 

9/17/68-“having constant dull aching feet, especially when standing, feet both significantly flat, pes planusExhibit A, page 21

 

9/17/68-“Chronic foot pain-seems real, 21 year old complains of dull aching pains in both feet, completely fine except for flat feet, insoles as per podiatrist” Exhibit A, page 22

 

9/17/68-“symptomatic of pes planus,” custom arch supports ordered-make casted molded arch supports to hold heel in neutral,” Exhibit A, page 23

 

10/15/68-orthopedic clinic notes “pain in ankle joints, more painful when barefoot” “no relief from pads” “Flexible, pronated flat foot while standing

Exhibit A, page 24

 

10/16/68-Physical Profile Record-notes “Flat Feet, no guard duty”

Exhibit A, page 26

         

10/22/68-no change, “symptomatic of pes planus, continue arch supports, refer to podiatry and orthopedics” Exhibit A, page 27

 

11/6/68-“despite Thomas heel, no improvement of pain in arch of foot”, “referred to orthopedics for heel buildup” Exhibit A, page 28

 

12/5/68-patient complains “feet are sore from result of falling arches, dull, deep pain after standing less than 15 min, when pain is severe, progresses up left leg,” notes about changing MOS from infantry, “leaving only flat feet as the diagnosis” Exhibit A, page 30

 

 

1/22/69-Fort McClellan, AL-noted “pain in feet, knees, thighs and back,” “Dr. is frustrated) with options-“I have nothing further to offer this man since every modality I would use has been used by the podiatrists at Benning.” “He presently has heel lifts and Thomas heels on boot, patient should be seen by orthopedics for back.” Exhibit A, page 32

 

2/13/69-“still problems with feet and heel, noted Achilles tendon insertion area, ordered hydrocortisone injection at Achilles tendon, “more padding in boot.” Exhibit A, page 33

 

3/69-Leaves for Vietnam Tour

 

4/28/69-Skin condition treated, on face, Exhibit A, page 35

 

6/13/69-contracted Malaria in Vietnam (already SC-0%), Exhibit A, page 46

 

8/19/69-“cellulitis on bottom of feet and toes” (infection of calluses), admitted to hospital to treat, Exhibit A, pages 49-50

 

11/26/69- reports of “6 months of calluses on both plantar areas, pes planus, reoccurring watery vesicles on both feet, bacterial infection of calluses” Exhibit A, page 49

 

***pain was present the entire time while in Vietnam.  There was really nothing that could be done about it.   There was no need to complain to the medic.***

 

3/20/70-Returned from Vietnam

 

3/20/70-Separation exam “Foot Trouble” marked “yes”

“Skin ulcers on bottom of feet” noted in explanation box-(These “ulcers” were the infected calluses) Exhibit A, page 53-54

 

 

Clearly he was treated for foot conditions while in service.  I have reopened claims for plantar fasciitis, etc.Does anyone see a case for EED based on CUE?  (38 CFR 3.156)

 

Here is the "4th Pillar" in my recently submitted claim. 

 

IV. Effective Date

Please consider all of the evidence presented.  I have reviewed my service medical records and it clearly shows that my pes planus was acquired while in active service.  Throughout my claims history, I have assumed that my service records were being used to adjudicate my claims.

 

I requested my SMR in 2010 via FOIA request.  I was sent two (2) separate packages dated April 22, 2010 and September 26, 2012.  These packages were not identical.  The 2012 package had additional service medical records. 

 

From my understanding of 38 CFR 3.156 (c, c4), the VA is required to review my C-File for the evidence used in adjudicating my historical claims.  Also, please note for the record that I was never informed that my service records were not available to be used to adjudicate my claim(s).  The only correspondence was from St. Louis and referencing inpatient records from DaNang Army Hospital.  This was not communicated to me until April 14, 2010.  This hospital stay is not absolutely necessary to prove service connection, so it is irrelevant.

 

Based on the reasons I was denied and the service medical records not being lost or destroyed, it is my understanding that my initial claim date of May 13, 1983 would be the correct effective date and retroactive evaluation would be made.

 

The reason these records were delivered separately and two years apart is unknown.  One possibility could be misplaced files and if that is the case, I feel that the new evidence obtained would fall under the 38 CFR 3.156 regulations.

 

Or, if all of the evidence was available at the time of the initial claim decision, then it would qualify as a Clear and Unmistakable Error (CUE).  Please note, I am not filing a CUE on this matter.  I am just adding justification for an earlier effective date.  The VA was required (even before 2000’s Duty to Assist) to assist the veteran by getting necessary Federal records.  All of the necessary information needed to get these records was provided by me and it is noted in my Rating Decisions for other conditions. 

 

The various medical treatment notes for foot injuries and other foot conditions while on active duty have been available all along.  The reason for denial always noted no medical evidence of service connection.

 

Regardless of the reason, I initially claimed foot injury/plantar fasciitis in May 1983.  I claimed these same conditions again in 1997, 2004, and 2010.  These foot condition (s) have been ongoing and chronic and I feel I should be compensated based on the evidence available through my claims history. 

 

 

I wish I had known about this wonderful community before I submitted his claim, but if he is denied again, the claws are coming out!  LOL!  Don't mess with a girl's daddy!  Haha. 

 

Any advice would be appreciated!  Thanks!

 

 

 

 

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Looks like it could be a cue using the following rule. Title 38 cfr 3.156C Missing Service Department Records.

Any denial will state the evidence used to make that denial in the reasons and basis of the denial. If these records are not mentioned then they were not there ti be considered. This is new and material also. he can file a cue claim asap.

JBasse

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Great Info from Jbasser,

I think its the VA  ''Duty to Assist'' the veteran in  finding his service records, if they can't find them then VA  is suppose to take the veterans word on any lay statements made if there  is a circumstance  and a close date (within 60days) that put the veteran  close to what he mention in his statements. Then reasonable doubt will go to the veteran

 

jmo

 

..................Buck

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Thank you both for the responses.  Have you ever heard of a EED awarded on a reopened claim without filing a CUE? 

or does it go more like this process-reopened claim, SC awarded, effective date is date of reopened claim, and then having to DOD for a EED using CUE? 

 

 

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CUE does not equal 38 cfr 3.156.  Instead, its far better for you!  Dont file a cue, file a motion to reopen under 38 CFR 3.156.  This is instead of CUE, not a CUE.  However, that is very good for you!  You need not "toss out" benefit of the doubt.  Dont raise the bar (standard of review) to Cue unnecessarily so.  3.156 includes benefit of the doubt, while CUE does not.  

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I have reopened the claim for bilateral plantar fasciitis, injury to both ankles, injury to both knees, ankle condition bilateral (secondary) and a new claim for flatfoot.  In my claim summary I referenced 38 CFR 3.156 (noting that I was NOT filing a CUE).  In your opinion, will they decide in favor of EED based on claims history? 

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