CUE? Not using SMR?

[4mydad]

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 planus” Exhibit 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!

 

 

 

 

[4mydad]

Now onto the 1996 claim... The foot disability claim needed to be reopened with N and M evidence   See the attachments  he feel that he had N and M evidence with the Nov 20 exam and then if they looked at the VAMC notes that they requested, they would have seen even more visit, including a diagnosis of plantar fasciitis.  However, it looks like they only used through 11-20-96 as evidence. 

 

1996 Claim.pdf

[Berta]

The pdf says they asked for more evidence, with no response, on Dec 20,1996 for the HL claim and asked for more evidence on Dec 13, 1996 for the bilateral foot claim, with no response.

if there was no response from the veteran as to what else they needed, then VA would obviously have to deny.

In April you posted

"Great news!  He received his decision today (ebenefits, letter has been mailed)  He is 100% P and T!  Yippee!"

That was Great News but after reading these C & Ps I do not feel a 38 CFR 3.156 claim is worth pursuing because they did not find his N & M evidence to be probative.

I hope others here will chime in on this as well because maybe I am missing something in the downloads that is important.

"The pdf says they asked for more evidence, with no response, on Dec 20,1996 for the HL claim and asked for more evidence on Dec 13, 1996 for the bilateral foot claim, with no response."

Does the C file reveal they DID have a response from him and would the medical info in the response alter their decision in any way?

I have a severe flat foot/bilateral pronation problem and have had years of podiatric med recs, orthonics, braces, rollators, (which I only need if I have to stand in a long line anywhere)and a 5 thousand buck hot tub I bought solely for hydrotherapy, for this condition ,  as well as I do exercises to strengthen my ankles.

 

I KNOW how miserable and painful  foot conditions can be.Custom orthos my podiatrist ordered completely cured a chronic backache (in 24 hours) I had for years,

due to the biomechanics of  the spine that gets affected by when these conditions are not treated and corrected. My  doc , an ortho surgeon as well ,has never done an X ray of my feet, so that is not unusual.

What I saw missing in the downloads was a lack of continuous symptomatology and medical treatment records. I know I am missing something, but others will chime in too.

 

 

 

 

 

 

[broncovet]

Read over 38 CFR 3.156 again. While I have not read your entire file, it appears that  You not responding to VA's request for information in 1996 is a 3.156 deal killer, as far as the effective date.   In order to persue a 3.156 C claim, you have to address

3.156 c 2 (highlighted below).   This is not going to help your CUE claim either.  Its hard to tell VA THEY have errors, if you do not comply to their request(s) for information to prove your case.   You can take this to a lawyer and try to get an EED, but I think you will have to address your not responding to thier request for information.      I have highlighted it below:

§ 3.156 New and material evidence.

(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

(c) Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))

Cross References:

Effective dates—general. See § 3.400. Correction of military records. See § 3.400(g).

  

Edited May 4, 2016 by broncovet

[4mydad]

I agree, this EED option is not looking promising. I think he thought his letter dated 11/26/96 stating he was seen as the VA for his feet was his evidence, however he did not send in anything from his primary DR at the time. From 1996-present day he is seen by his PCP at the VA. He was seen in December too/the dr injected his Achilles. I would think if they used the medical evidence at the VA it would definitely be N and M since it shows a diagnosis of plantar fasciitis in 1996. (Under the same code as pes planus). 

They did request records from the VA from 1101/96 to 12/26/96. There would have been relevant evidence in there that was not in front of adjudicator in 1983. 

[4mydad]

202004 Decision.pdf03 has problems of its own...I guess there was enough evidence through the VAMC to reopen claim for feet. (I'm not concerned about hearing right now). 

He was given an exam, it was favorable but there was no mention  of a direct service connection using the words less likely than more likely than..,  it sounded to me like it was an exam for an increase. So I went back to the exam request and sure enough, it was for an increase. He was denied because it was nit connected to service. Ugh. Thoughts? 

2004 Decision Exam (redacted).pdf

[FormerMember]

What I see missing here is any mention of 38 CFR 1154(b) Combat enhancement. VA did not give  him enhanced credibility in 1983. In fact, they didn't even mention it which they would be required to discuss by law (and then discount as not being probative). That is CUE. VA is required to take any testimony about his feet in the combat environment as Gospel. It's clear they had the STRs when they made the 1983 decision. Presumption of Soundness at entry on the physical sets the injury metric.  If he had flat feet when he left, then it occurred in service -38 CFR 3.303(a). If he says he got flat feet and he has a PH and CIB, VA cannot argue otherwise. Having proved CUE, all he has to do is show that the error manifestly changed the outcome. The 2015 grant is proof of that. The only thing that could poke a hole in this balloon would be an unappealed BVA decision which would have rendered the subject closed. No appeal up to the BVA on any of those reopens following 1983 means a CUE  claim is still viable for 1983 as well as any follow on denials in the interim.

Personally, I'd go for it. I'd get an atty. because it's going to be a cat fight for that many dineros. Sorry about that sugar. Your email didn't mention the medals and the CIB. That's a whole different ballgame. Anyone who would die in combat for their country gets a bye on their testimony as being credible without corroboration.