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

[Palma114]

38 minutes ago, pwrslm said:

They really should take the VA and force it to bring claims into line with their non adversarial mandate.

 

Over and over, I see similar cases where the VA intentionally omits facts in medical records that the VA has in its possession, or should have, which would justify granting service connection for conditions resulting from Active Duty.  I would hate to see the percentage of claims that have gone through this over the last several decades because it would expose how millions of Vet's and their families were kicked to the curb because of a lazy, or inadequate, rating processes.  The law says they have to read, and account for, all of the facts contained in a Vet's medical history, both current and historical, yet all too often, they dont.

pwrslm,  You are absolutely correct, it is pure laziness, and they simple do not have any regards to the significant amount of evidence that's in the Veterans medical file that is in his favor.

They have unfortunately, turn this into a word game. I believe we're at a point here, if a Veteran is to have any chance, a IME/IMO Nexus is an absolutely must, without it, it has become very very difficult, regardless of how much obvious evidence you present on your own. Unless you have an M.D. behind your name, they don't hear anything you're saying!

[FormerMember]

Word game? What planet have you been holed up on? That's the not-so-secret technique employed all these centuries.The VA has always required a nexus letter/IMO to substantiate a claim absent an injury in combat. This was finally enunciated in Caluza v. Brown in 1995. The three requirements have never changed since the War of 1812-disease/injury (or risk factor) in service; disease/injury now; and lastly, a well-reasoned nexus associating the two. You cannot get around  this requirement even if your service medical records annotate it over 90 pages. The concern BroncoVet brings to the discussion about the claims file is important. You must provide the doctor who is asked to opine on this with the contemporary records otherwise VA will decimate the nexus by saying the VA Examiner did read the the records and thus the VA nexus denying is more probative than a hired gun paid to blow bubbles for you. Thus you absolutely need to obtain the c-file. In legal terms, they call this 'discovery'. That's why VA is obligated to give them to you under FOIA.

Getting an IMO is no harder than looking in the Yellow pages for SSI/SSD attorneys and asking them for a referral or number of the specialist they use for IMOs. Just for the record, Veterans do not get IMEs. An IME (Independent Medical Evaluation) is what the VA goes out and obtains if your nexus is really good. First, it is not independent. VA shops who will provide it and what the answer will be. Often, the one providing it is not well-versed in the subject-i.e. a proctologist opining on L5/S1 radiculopathy into the lower extremities. Lastly, you will never meet or attend this IME. It is accomplished remotely by a doctor reviewing the records and saying whatever thirty pieces of VA silver buys.

Wilson v. Derwinski (1991) teaches us that "The regulation requires continuity of symptomatology, not continuity of treatment." All you need show is an injury in service and a continuous, unbroken history of symptoms. Having an intercurrent paper trail of post-service treatment is just the gravy to support it. You or your friends/family are capable and credible for confirmation of this condition as it comes to them via their five senses and requires no specialized medical training. Lay testimony, however, will not substitute for an IMO. 

Best of luck in this endeavour. 

P.S. Someone will feel obligated to disagree with this assessment. I did not mention presumptive diseases such as the AO ones in 38 CFR 3.309(e) or the presumptive of filing within a year of discharge. I feel most are aware of those codicils or should be.

Edited May 23, 2016 by asknod

[OldJoe]

Thanks everyone.

You all have very valid points.

Going to be calling my VSO today about getting the ball rolling for getting my C-file.  I understand the need to get it and concur the need for it.  To many times been bitten for similar things, not necessarily VA related (my own stupid fault for getting frustrated and acting before careful consideration).

My primary care provider has agreed to give me a referral for the IME. Just waiting for the medical examiner's office to call me to set up the appointment.

Rest is a rant...

Almost like they expected me to either just give up there and simply circular file everything else.  Or be ticked off, fly off the handle and file a NOD, in which case I isn't going to be thinking clearly and not read how they made the mistake.

My biggest frustration is all the extra hoops I (or any vet) has to go through in a system that purports that it has a duty to help and assist a vet.  Sadly all the VA has to do is send out boiler plate letters to meet that requirement that they did their homework. This has been upheld in courts; but how can they have met this requirement.  Real low bar to meet. 

Then it reverts back to the vet's responsibility to prove everything. 

Thank God for the resources available today, google, hadit, internet, ....  None of this was available back in 1995.  It was all mysterious backroom stuff behind closed doors where if you paid close attention you saw people enter wearing dark sack cloth robes,  smell the think aroma of incense, the sounds of something resembling Gregorian chants, and if you stayed you would hear the chants growing in fevered pitch culminating in a scream and then utter silence.  Finally watching them file out of the room giving each other hi-5's.

My biggest frustration is that I have to go get the C-file when it shouldn't even be necessary.  The Rating decision letter alone should be proof enough that they messed up.

But I know this isn't how the game is played and I am nothing more than another mouse stuck in the maze like so many others.

[OldJoe]

Thanks guys for listening
.

[OldJoe]

I do have another thing that could very well play into the final settlement "IF" everything plays out right (I hope and pray). 

This may need to be put under a new thread.

Concerns vocational rehab and recent changes in how it works if the VA messed up in awarding benefits.

If I have researched and interpreted everything correctly, if it is found that I would have qualified for vocational rehab it can be awarded retroactively back to the time that I would have qualified not just back to the time I initially requested it.

I did request it way back then when I got out and decided to go to school.  I knew I couldn't continue to be a cop and I had no desire to flip burgers the rest of my life (got degree in comp sci).

Ideas that could help me clear this up at the same time as the rest of this so I don't have to go through another round of fun with appealing this part?

What was the magic number for being able to qualify for vocational rehab back in 1995 - 1999.  I have to go through my records again because I tried a couple of times.

If this is viable, what am I going to need to show what needs to be paid?

Why can't I be just dumb and happy with what I get and not start more work for myself?

[OldJoe]

pwrslm and Palma114, I fully agree with both of you about how many vets have been wronged by "accidentally missing all of the evidence".

My thoughts extend to how to guaranty that this stops.  Unfortunately I don't ever see it stopping.

The one thing I don't think any of us want to see though is knee jerk legislation that "force" the VA to change the way they they process claims in a manner that would fully ensure that they caught everything they were supposed to in the first place. 

If they got an audit process put into place that would review every VA claim for full complete correct evaluation, only your next of kin would ever be able to collect.  And then I am sure some butt-head would say that why are we giving the next of kin the money the vet long since died, we can save billions here and give it to those that really need it.

Though the system is so totally messed up that it makes one sick, right now we stand at least a chance of getting things to go in our favor.

Case in point, the push to get the back log of claims cleared.  Great, they are clearing them, but at what expense?  How many are going to wind up in the same boat I am in now.  How many because it is just a small ache now (like I said back then) are just going to give up because it just wasn't worth it for something that seems so trivial at that point in time.  Only later to find themselves in the position I am now where back is getting worse, knees are now going, and Lord only knows what is going to happen between now and 10 years from now.

Another example is the DRO process.  Have read both good and bad, good, cases like ,mine get decided relatively quick and retroactive is quick because you don't go through the whole process.  Bad, vet messes up one little thing, something that really shouldn't matter in the whole grand scheme and he looses valuable time that now has to be spent going through a full and complete appeal process.

I think part of it has to be in reaching out to vets and educating them.  I would like to say the best bet is before they get out of the service, but that would turn into even a worse nightmare.  How many vets would you see get denied straight out of the military before they ever got a chance to try to appeal.

The best chance for vets is education through sites like this.