Need help determining the best way to proceed with my claim. Possible CUE

[OldJoe]

Need help determining the best way to proceed with my claim.  I am currently working with a VSO but I know I have to be my own advocate.  My VSO seems to be competent but he won’t do anything unless I say so (I understand why).

 

If everything I have learned in these last several months is correct and I am interpreting the requirements for claims correctly there were mistakes made in the original decision. 

 

First mistake being mine by not filing a NOD, though I am not sure an appeal back then would have fared any better.

Second mistake, filing a new claim for vocational rehabilitation without a nexus letter (in hind sight only learned of the need for nexus recently).

 

Third mistake, not filing a NOD, not that it would have mattered I hadn’t provide any new and material evidence.  (That darned nexus thingee strikes again).

 

The biggest question now is the best way to go about the appeal that will provide me the greatest chance of success without forcing the issue of the dreaded “C.U.E.”  I have read too many horror stories of vets that failed proving “C.U.E.” 

 

I feel I have information that shows that there were mistakes made in the initial decision process.  The task; putting this information in a form that will withstand the rigors of the appeal process and can be used to support my claim.  I don’t want to simply just say you all goofed fix it.  I tried that back when I applied for the VA Vocational Rehabilitation program, obviously, that didn’t work.

Here is the breakdown of what I think are the facts as I see them:

 

1)      A letter from the VA confirming my application for benefits which is dated September 1, 1995.  I was discharged June 30, 1995.

 

a)      If I have interpreted the rules and procedures for determining eligibility this is within the 1 year period of presumption.

 

i)        Unless this is a newer rule, but even then, doesn’t that help me?

 

2)      The VA Rating decision

 

a)      From the letter itself:

 

i)        1. <content deleted because it has no bearing on the errors noted>  “The examiner indicates the veteran's condition is mild. Based on this a 10% evaluation is assigned effective 7-31-96, the date of claim since the claim was filed over one year after separation from service.

 

2. Service connection may be granted for a disability which began in military service or was caused by some event or experience in service. Service connection for back condition is denied since this condition neither occurred in nor was caused by service.

 

Service medical records for the period 1-28-84 to 5-23-95 show treatment for low back pain on 9-20-90.  The x-rays did not how any degenerative changes or fractures. The condition responded to treatment.  There is no evidence of a chronic back condition in service. The VA examination dated 9-12-96 at VAMC Kansas City, MO shows no postural abnormalities or fixed deformities. The musculature of the back is normal. The range of motion is normal with no objective evidence of pain on motion. The straight leg raising test is normal. Since no chronic back condition is shown in the service nor on the VA exam, service connection for a back condition is not established. “

 

b)      Noteworthy items:

 

i)        The record used was for the earliest evaluation I had for my back not the most recent.

 

(1)   As far as I can tell there were no x-rays for this evaluation listed in my medical records.

 

ii)      The only x-rays mentioned in my military records are in relation to the last evaluation I had for my back.

 

iii)    The most recent entry in my medical records concerning my back contains statements such as “recurring”, “mild scoliosis”, “numerous evals for this problem”, and x-rays

 

iv)    The greatest error being the fallacy that, and I quote, "There is no evidence of a chronic back condition in service".

 

3)      My Medical records

 

a)      There are nine pages of medical notes pertaining to my back.

 

i)        The pages contain six separate evaluations and one script for light duty not to lift greater than 10 lbs.

 

(1)   Two of the evaluations were follow ups

 

b)      The only record I can find where x-rays are even mentioned is the latest evaluation for my back (maybe I missed something I will check yet again)

 

c)       The last (most recent) entry contains wording such as “recurring”, “mild scoliosis”, “numerous evals

 

I understand that unless I obtain a nexus letter I don’t stand a flipping chance of getting my case reopened.  Unfortunately I cannot seem to find any medical professional that is willing to write me even a lame one.

 

That said, in my research I have found a BVA decision that basically stated that since they (the BVA) couldn’t establish if the medical records that would have help in obtaining a favorable outcome were present at the time the decision was made the claim is still considered pending.  This in spite of the fact that the decision stated that records reviewed included everything within the stated period reviewed. Citation Nr: 1508730 Decision Date: 02/27/15 Archive Date: 03/11/15 DOCKET NO. 13-10 512.

 

Then there is title 38 and the various sections that deal with everything that I have mentioned.  Though it isn’t like I totally understand the legal jargon in it, just that everyone keeps quoting it.

 

I guess the biggest thing is; is there a way to get a DRO to review the claim and C.U.E. themselves without having to go through the process of getting a nexus letter and getting my claim before the BVA only to have them remand it back to square one because of what I see as obvious mistakes.  And, with all of the stuff I have read in my attempts to understand, I am not sure what to do and scared sh…less of doing the wrong thing.

If I am correct in the precedence set by the BVA my claim has actually been pending for about 20 years.

 

Edited May 19, 2016 by OldJoe

[OldJoe]

I should add, fourth mistake, letting my VSO file to yet again reopen my claim for my back without a nexus letter..

Guess what, they denied my claim because I didn't have any "new and material" evidence.  Just added more information of continuing treatment nothing that connected it to the service.

Which brings me to where I stand now.

[Berta]

There is no chance to have the DRO CUE themselves.....as I understand this. I have only used that tactic when the decision was brand new  and I had not filed a NOD yet.

I just caught the newer reply you made.....they denied again due to lack of New and Material evidence.No CUE there.

"I understand that unless I obtain a nexus letter I don’t stand a flipping chance of getting my case reopened. "

That is correct , and it should be more than a 'nexus letter', it should follow the IMO/IME criteria here at hadit under 'Read First If Getting an IMO'  ...I just posted the link for some here earlier today.

" Unfortunately I cannot seem to find any medical professional that is willing to write me even a lame one."

Who have you tried?

 

[broncovet]

Have you ordered a copy of your cfile?  If not, you should do so, pronto.  You need to see, indeed, if there is no nexus letter.  If there is none, then you have no choice but to get one.  Filing your claim without a nexus letter is like buying a car without a motor.  Until you get one, its not moving anywhere.  

[OldJoe]

Thanks for the quick reply, both of you.

As far as getting  a nexus letter; I haven't  probably asked the right one.  Have asked current primary care provider,  VA clinic dr, chiropractor I have been seeing for the past ten years.   A couple of specialists, these I couldn't  get a whole sentence out concerning what I needed before I got the brush off. Physical therapist, almost did but the therapist  that said she would try and write one got hired at a different place.

That said I think I may have a leader from Internet searching of a Dr that does IMES for disability claims.

I guess I will be calling tomorrow.

As far as having a copy of my c-file, I don't yet.  

As far as a possibility of a nexus letter, 99.9% sure there isn't one.  But on the 0.1% chance there is, you are correct that I should check.

What really frustrates me (besides my past mistakes) is that knowing that they didn't use all of the medical evidence at the time of the original decision, when I finally get the IME and submit it, if the VA denies it again, and I go before the BVA they are going to remand it back so that the process is done right.

Is there any silver lining to any of this?

[OldJoe]

Started the process to get an IME.

Will work as quickly as possible to get my C-file.

Rereading the "Rating Decision" and trying to be as impartial as possible (as in playing devils advocate) there is absolutely no C.U.E. in the way the way the letter was written.  You have to admire the VA (in a sick and twisted way) on how they worded everything.  I don't think a N.O.D. filed at the time of the original claim would have mattered because it states simply that they couldn't find anything in my records to support a chronic condition.  Lord knows how many years I would have been trying to fight that one, having been lurking around the forums here before posting I have read many of the hardships and trials many of you have gone through to get the compensation you are due.

I am not even sure if I had sent a nexus letter the second time I tried to get a rating on my back would have worked because I am reasonably sure that the nexus would have been based on the one evaluation that does state that it was a recurring issue. Why? Because that is arguably true that since that is already part of my record the nexus letter would in a sense be nothing more than a restatement of what was already present.  Again, it would have been rejected, I would have filed another N.O.D. that would have taken again Lord knows how many years this time possibly making it to the BVA.

Depending how the BVA ruled based on my representative's argument it would have been thrown out because it didn't meet the criteria for "new and material" evidence or it would have been remanded for what I think is the correct argument that is falls under the area that at the time the decision was reached not all the evidence was used which is I think Title 38 §3.156(b) and (c) (please correct me if I am not quoting the right regulation). 

Missing these specific evaluations at the time of the decision is quite easy to explain. 

We all know how the old medical records are organized, a two whole punched piece of paper randomly slapped on either the left or right side of the folder.  Pull those pages out and stick them in storage some where and then take them out and copy them.  You would have a better chance of predicting where the ace of spades is in a card deck.  On top of that, find all of the pertinent information within the allotted time given you while your boss is bearing down on you to make your quota for the day for how many claims are suppose to deny. 

That, or some lunkhead down in the copy room sent the pile from the left side of your medical records to the individual working on Private Smith's by mistake, only realizing it after the decision was reached.  Of course they rectified the mistake as soon as they found out.  Unfortunately it is up to the vet to flag the issue. Now whether or not the mistake was fixed before or after the N.O.D. should have been filed is as good a guess as anyone's.

Granted this is all pure speculation and the basis for a good made for TV conspiracy theory.

So until I get my C-file I can only speculate.  Though I am almost positive that I will find all of my medical records in there.

If they aren't then we will all be in for a good show. 

If they aren't, well, I think we will all be in for a good show.

 

 

 

 

 

[OldJoe]

Having covered some of the potential issues with getting my IME is there anything I can bring to the Dr.'s attention so I don't fall into the trap that the nexus itself is considered not "new and material"

The doctor by the way is Dr Lucio in Jefferson City, Mo, and does do IMEs (at least he is in the directory for those types of doctors).

Luckily his specialty is chronic pain and disability examinations.

Since this thread doesn't seem to really apply to C.U.E.s at all I guess it might be warranted to move it to a different category.