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NOD denied and errors to boot! Need opinions

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Navy4life

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I posted this in my other ongoing thread but I want this brought to the forefront.  I was recently denied by WACO DRO Steve Wilbur and I believe I was retaliated because I simply asked Robert McDonald in an email to step in after 6 months of waiting for a decision when the DRO told me in the informal hearing to give him 60 days.  My hearing was 45 minutes long and I was well prepared.  The DRO Steve Wilbur has a very bad reputation at WACO for denials.  I received a call from DRO Wilbur on August 18th, 2016 stating he received my request for a decision.  He told me he would be deciding it within the week but in fact he had already decided it that day!  Now I have yet to received the SOC but I have a Women's Outreach Coordinator in St. Petersburg VBA who is a very close friend of mine and happened to see the denial in my records.  This idiot DRO failed to put a cover letter with my SOC and no date on my SOC.  He simply submitted it to Evidence Intake and never mailed it to me!  If it wasn't for my connection I would still not know and would not be within the 60 days to file the Form 9.  I emailed Robert McDonald earlier this week, firing off my distaste for this DRO and my local congressman.  I plan to further put him on front street when I do file the Form 9.

As for my NOD, I filed it back in 2014 for right foot (5th metatarsal fracture), right ankle condition, and left toe condition.  I am attaching a lot of documents and I know we all have busy lives and I have helped a lot on here and now I need help please!  I need your opinions on this situation.

Original denial for toe condition was on decision letter in June 2014.  They put the denial of the toe condition on the wrong foot!  It was noted on the right foot when it should have been the left foot.  I pointed this out since my right ankle and right fracture had yet to be decided on.  November 2014 received denial for right foot/right ankle and toe condition noted on left toe continued to be denied.  This was after I had a C&P exam July 2013 where I provided TWO DBQ's from my current outside podiatrist stating my injuries to my feet/ankles/toe was all in-service injuries and I was still affected by them to this day.  That was 2013.  I was s/c in June 2014 and was able to start getting treatment by the VA.  My primary had X-rays completed and in 2014 it showed an old fracture to my right foot, the 5th metatarsal.  The C&P examiner made a rationale that stated he noted diagnoses in the C&P exam.  He felt comfortable with the DBQ's from what I gathered.  November 2014, a medical opinion by some doctor I never saw but supposedly reviewed my records determined either I was healed and no further treatment or that I had in-service injuries but no loner had issues.  So I filed NOD November 2014 citing the errors and why I felt the denial was incorrect.  Fast forward to February 2016, I had my informal hearing with DRO Wilbur.  I had submitted a Nexus letter dated February 12th, 2016 from my podiatrist indicating he reviewed all my SMR's and my current conditions were all related to in-service injuries.  During the hearing, DRO Wilbur even stated that a fracture in s/c with no further residuals is at least 0%.  He further went on to review the Nexus letter noting that my Podiatrist stated all three contentions were in fact in-service, continuity continued.  DRO Wilbur told me 60 days to decided.  DAV rep was present.  I felt good......WELL, then I was denied last week.

Here is the evidence I submitted to the DRO for review.  I am just lost for words on this!

 

DBQ ankle conditions_Redacted.pdf

DBQ foot conditions_Redacted.pdf

medical opinion w-o exam_Redacted.pdf

Timeline for NOD hearing.pdf

Nexus letter-redacted .pdf

NOD - Denial Letter .pdf

NOD evidence notes.pdf

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  • HadIt.com Elder

I don't think the FOI or the Director of VAMC will be able to Anmend/Correct the records? if they do its a new one on me.

 I had to go to the person that made the errors to make the amend/correction, however when you go ask these people to correct or make the amend  I agree with broncovet   get there names and get it documented that you tried to seek help from these people and was turn away   (if thats the case) they maybe able to help you?

 but I bet you get ''I'm sorry I am not qualified to make the correction'' Or Do That''

either way as long as you point out all these errors in your I9 then its on Record.

When the BVA sees them (ERRORS) Its anybodys guess if they will remand this back to RO and tell them to get this corrected ?

if you file CUE then in my opinion the BVA Will make a decision   if they can't  then its  Laywer up time and head to CAVC.

i think its in Navy4life best interest to seek an Attorney on this ASAP  b/c of the timeline.

jmo

...................Buck

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I am going to file a CUE on the Form 9 when I get to that point.  The C&P exams in itself are so f'd up.  If you look at them and you see the errors this doctor did it is horrible.

The C&P exams in itself should have granted me a new C&P exam at a minimum.

As far as getting the C&P correct, I am not sure anyone can do this for me except ask for the BVA to remand for a new C&P exam based on the errors.

I am the Veteran listed above, and herewith request my records be amended, per 38. CFR 3.1579 as to the following errors.  

The following exams list errors:

1. C&P Exam for Ankle dated 7/8/2013 Diagnosis #2 says Right 5th Metatarsal Fracture on   LEFT foot.

2.  C&P Exam for Foot dated 7/8/2013 Diagnosis #1 says Avulsion fracture of RT 5th Metatarsal ICD code: 829 Date of Diagnosis 6/23/2013

3.  C&P Exam for Foot dated 7/8/2013 Remarks #16 – Doctor states “For the claimant’s claimed condition of RIGHT FOOT CONDITION, there is no diagnosis because the claimant does not claim the condition.  For the claimant’s claimed condition of LEFT FOOT CONDITION, the diagnosis is already noted in the diagnosis section.  For the claimant’s claimed condition of TOE CONDITION ON LEFT FOOT, the diagnoses is already noted in the diagnosis section.

Please see below that I wish to have noted to correct the above errors.

#1 – Doctor has noted WRONG foot on C&P exam for Ankle.  It should be noted as RIGHT foot.

#2 – Doctor has the wrong diagnosis date.  It should match the date of 1993 as noted on the C&P exam for Ankle.

#3 – Doctor stated claimant did not claim Right Foot Condition, which is in error.  Claimant filed both feet and ankle conditions on original claim back in May 2013.

I certify the above is true to the best of my knowledge. 

Edited by Navy4life
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  • Moderator

I dont think errors made by the doctor are CUE.  Cue errors are adjutication errors, not errors on C and P exams.   Remember, VAMC and VA benefits are seperate.  There is a procedure to sue your doctor, but that procedure does not involve "cue".  You can file an 1151 claim.  As I explained, the procedure is to request an amendement to correct errors on your records.  If VA fails to do this, you can appeal that issue.  

The adjuticators did not make a CUE in that the doctors have a Presumptive...the doctors exam is presumed to be correct absent a challenge by the Veteran to the contrary.  You can challenge an inadequate exam.  

Its up to you...and, I will admit that Berta has done well with "asking VA to cue themselves."   However, Berta is also a big believer in getting an IME/IMO to rebut a bad c and P exam.  

I dont think its in your best interest to file a CUE UNLESS you have exhausted "regular" appeals.  I hear Vets holler "CUE" all the time, and the error often fails to meet strictest CUE requirements.   Read a few cases on CUE, and you will see what I mean.  John King filed a CUE and it was denied.  

CUE claims are the hardest of all to win.  There is no Benefit of the doubt, there is no duty to assist errors.    That is why I always say to make it easy, not hard..wining VA benefits is challenging enough without unnecessarily raising the bar with CUE>  .   A "normal" appeal, or an appeal with new and material evidence under 3.156 has much lower standards of review and thus is easier to win for the VEt.  

There is no time limit on CUE...so you can file a nod, and, if it fails, you can always file a cue later.  Filing CUE first, tho, while you are in the 1 year appeal period is only a good idea if you make sure you STILL file a nod within a year.  

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  • HadIt.com Elder

It looks good to me Navy4life

but remember to go through the proper channels with your claim...like broncovet mention  CUE's are hard to win...even when you think its in black & white  they can come back with tech stuff.

I'm not saying CUE is out,  but just need straight forward evidence and how to write in a CUE Claim.

This is a case that Ms Carlie. would be good to help you with,.she was an expert with CUE'S  here on Hadit, Unfortunately Ms Carlie passed away in November 2015 she is missed. RIP Ms Carlie.....  she has post here on hadit you might want to check out in the CUE Forums.

As broncovet mention look up some past CUE Claims and see what you think?

After you file the  9 you will get further instructions  how to proceed. 

It looks like to me the Waco DRO should have seen these errors at your Hearing...he didn't so you can request another C&P on these contentions.

If you can I'd do that before filing CUE you will probably win and get this out of your life.

stress is no good girl!  CUE Claims are very stressful

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Navy, give serious consideration to getting a Face To Face, Free Legal consult with a couple VA Appeal Lawyers. Your 70%, 20% of the possible Retro should interest them.

You don't actually have to sign with any of them, just get their input.  If they're  hot to sign you, you'll at least have an idea, of the strength of your case.

DIY is good but how much Stress and Anxiety can you, or do you want to handle. You seem to have a rather complicated Appeal situation. Might be time for a Professionals assistance.

Semper Fi

 

 

 

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