Need some guidance -scratching my head on a denial

[AF_Comm_Vet]

-  Filed a year ago for a lumbar spine condition caused by a severe auto accident in-service. After an initial denial, the claim was finally approved after doing a re-open and submitting an new IME.  The NEXUS was made between the Lumbar spine injury and accident based on civilian ER reports where I was transported.  Was scheduled for a C&P exam prior to decision, and the C&P physician actually rated higher than I expected (after doing X-rays) at 40%. 

-  Several years ago I started having headaches, neck stiffness, and occasional  Pins & needles in the arm, not severe or constant so blew it off.  Four months ago it became severe, started missing work left and right, and pain prevented even sleep without heavy meds. Was referred to an Orthopedic doc and later an Ortho Surgeon.  MRI's and X-rays were accomplished in Jan with bad news, severe degenerated discs and cervical bone structure.  The Surgeon said this was pretty severe for my age, and after describing the accident he agreed it was likely the cause of the damage which had been brewing for years. 

- Filed a FDC for Cervical  Spondylosis and degenerative cervical disease.  I referenced the earlier evidence of the accident in-service. I also had a thorough IMO done by one of the Physicians mentioned in the forums often (not including the name), the IMO was very thorough with a NEXUS statement and citing previous cases.  Submitted the FDC in Early Feb.

 

 Well, I after I saw the FDC move from Review to Decision process les than tend days after submitting I became concerned. Sure enough, it was returned denied as "Not Service Connected".    

 

OK, I get it....an IMO doesn't guarantee anything, but based on my evidence and previous related injury  I thought I would at least be granted a C&P before the case would be tossed back in my face.    Any thoughts?? 

 

Thanks

 

 

Edited March 13, 2016 by AF_Comm_Vet
qeqweqww

[danangmonkey]

2 hours ago, Berta said:

This is not a re open situation, it is definitely a CUE.

The CUE they committed is violation of 38 CFR 4.6.

There are some templates here for this type of CUE....

I filed one  probably the day after I got the decision last year, posthumous AO HBP claim......

I filed it in email to the of my RO as well as an IRIS complaint.

Make sure you state the initials in the alphanumeric code on the top right hand side of the decision...that is the last person who handled the claim.

There is plenty of info in our CUE forum on getting VA to call a CUE on themselves.

38 CFR 4.6 works when the VA completely ignores probative evidence that they have.

If they do mention that type of evidence with some BS to reject it, that is not basis for this type of CUE, filed during the appellate period.

Are RO employees really that stupid to ignore IMOs (often costly)that can turn the tide for a veteran?

Or are they ordered to ignore them?

 

 

 

 

 

Berta:

 

After reviewing 500+ pages from the C-File I found a statement that their was no evidence of a MVA (Motor Vehicle Accident) that occurred in-service that could have affected the upper back injury in the same manner as the MVA that injured the lower back.  The Claim was denied.

Basically they Denied the claim because of a lack of evidence of a MVA  occurred.  I checked the evidence submitted with the claim (and clearly available within the C-File), it contains the complete Emergency Room report of the MVA and a IMO clearly defining the NEXUS between that MVA event and the Cervical injury.    So they not only ignored the IMO, they also ignored the evidence of the MVA event; by denying that the MVA occurred any subsequent IMO based on that MVA became irrelevant.

 

Bottom Line:  

1. The ER Report of the MVA was not considered or listed in the Evidence List

2. The IMO was not listed in the Evidence List or mentioned in the denial letter

3. The basis for the denial was lack of evidence of a MVA occurring in-service

 

I agree that clear documentary evidence submitted was not reviewed, and that the non-reviewed evidence submitted clearly would have resulted in a different outcome. 

 

So this is obviously a CUE situation,  I still have some confusion on the regulatory mechanics of a CUE, can you fill in some details? 

A. Is a CUE a formal  process such as a NOD or require filing a motion ? 

B. You mention filing an IRIS for the CUE?  Is that initiating/triggering the CUE process internally within the VARO? How should I word such a request using IRIS ?  

C. The only Template/Example I could find follows:  (is this "template" something that is mailed to the VARO, or submitteded via IRIS?  

 

Obviously the IRIS process would be the fastest method to get the VA to "CUE themselves",  but I want to be careful to do this right, and not get in over my head and cause problems for any appellate review down the road.   Are you talking about simply and informally submitting a IRIS On-Line and pointing out the error without invoking the formal appeal process?

 

 

By the way, I started this thread using the account "AF_Comm_Vet", I replied using my old account "danangmonkey".  These two accounts are the same person, I had a technical problem initially with the first account that has now been corrected.

 

 

 

Edited March 10, 2016 by danangmonkey

[danangmonkey]

Berta ...

 

I went ahead and submitted an IRIS using the format you suggested asking the VARO to CUE their won decision. 

[Berta]

Great!!!. But do not allow them to piss away your NOD year deadline.

It has worked for 2 others here since I posted the GO CUE yourself VA stuff.

One of my CUEs took 6 years, because it appeared they were working on it, from mail I got from them.

I filed the NOD right at the last minute. It succeeded but at a different RO and the CUE was contingent to a proper AO IHD rating.

They even had tried to make up a new reg at one point ,to deny me again but that didn't work, and then assured me, that the CUE was "with a specialist" for many months....as my NOD deadline loomed over me.

Specialist my butt. If  Buffalo VA had any sort of specialist that would mean at least someone at my RO could read.

Others I filed within the appeal period were rectified Much faster.

I think VA violates 38 CFR 4.6 more than we know....and if we do not act fast to attempt to get the CUE fixed right away, the VA knows we will become part of the hamster wheel, and they know many aging and ill veterans might even have expiration dates.

 

I don't really mean that ...expiration dates, but it is a fact that all of us have to outlive the denials we get that are often completely wrong.

 

[SemperFiGeek]

I got my QTC exam pretty quickly before the claim was decided by emailing bob mcdonald directly for them.

Edited March 13, 2016 by SemperFiGeek

[danangmonkey]

5 hours ago, SemperFiGeek said:

I got my QTC exam pretty quickly before the claim was decided by emailing bob mcdonald directly for them.

It wouldn't have mattered in my case ...... I could have hade a buddy letter from Sun Tzu, doesn't do any good if they don't read your submitted evidence.  

The IMO/NEXUS I submitted (which was obtained at great expense) and the initial ER room report (which caused the injury) were not listed as evidence being considered.

Even more laughable was their statement that there was no evidence of the accident .....  Even though I have a screen shot of those same reports uploaded to their system and attached to the claim, and found both documents contained within my C-File.

 

[danangmonkey]

On ‎3‎/‎11‎/‎2016 at 11:56 AM, Berta said:

Great!!!. But do not allow them to piss away your NOD year deadline.

It has worked for 2 others here since I posted the GO CUE yourself VA stuff.

 

Berta, no worries....my denial was fairly recent, so shouldn't be a problem unless they ignore my IRIS complaint for the next 11 months. 

Sorry for the delay in posting the results of my denial letter, I have been in Viet Nam for the past two months and just started catching up on mail. The 1-800 wouldn't give me the results of the letter over the phone while I was in Asia, so had to wait until I had the hard copy in-hand.

Edited March 13, 2016 by danangmonkey