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

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OldJoe

Question

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 by OldJoe
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LOL, I am glad I didn't eat them either.

Unfortunately they don't issue P38s in the service anymore.  I remember a friend giving me one of his extras he had gotten from years before.  I treasured that p38, tough little steel bugger, used it to open cans, help rip open MREs, screw driver, ...

It was very versatile.

Unfortunately, the P38s you find now days are a pale imitation of the original ones.  If you find an old one, don't loose it.  They are precious (sentimentally anyway).

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Dumb question of the century,

I hate to just do a knee jerk reaction without giving enough time for follow through and don't want to be accused of simply hopping from one thing to another.

I don't feel like my VSO is being responsive enough.  Have sent emails and left a message on is phone and haven't gotten so much as a give me a sec I will get with you with 72 hours or something to that effect (coming up on 72 hours now, and he had said to contact him about setting up an appointment to get the appeal going {NOD}).

Should I get a new rep.  Considering going with DAV and their legal representation. I know simply changing doesn't mean better representation, but the clock is ticking.

I also, know that I am behind the power curve for needing a few things already.  Though shouldn't the VSO provided some "sage advice" on what I should have needed before he went and submitted my claim.

I admit that sending my claim in without a nexus letter was dumb, but he kind of surprised me when he did send it because I would have expected him to say doubtful you will get a favorable result without it are you sure... 

What happened was I had emailed him and told him that the last doctor that I thought might write a nexus wouldn't.  The next thing I found out is that he had sent it already...

I don't know if it was time requirements for "intent to file" or what.  But it surprised me none the less.

Also, hearing how critical a c-file is, I thought (in hind sight now) that would have been one of the first things he would have said I needed to get my hands on.

It just seems that something just isn't right.

Is it just me or is it this portion of my disability kicking into overdrive.

  • "An evaluation of 10 percent is assigned if there is evidence of emotional tension or anxiety productive of mild social and industrial impairment"

In short, I need to hold my horses and just have faith...

I don't need to make anymore mistakes than I already have.

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I just hope he hasn't just up and decided to do something on his own without telling me.

Initiative is to be commended, but conducting and assault on a fully developed defense wearing nothing more than a to-to and armed with a plastic fairy wand is not what I consider smart.

Nor do I want to be forced into a position like that.

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