Ms KNG

[KNG]

Hello,

I recently filed a claim (2017) for Hallux Valgus (bunion) and was granted the 10% service connection that this condition warrants, because I had it surgically removed (status post left Bunionectomy, retained) while on Active duty (1997).  

I ETS’d from from the Army in 1998.  The treatment records of the condition/surgery is noted in my military records.  Although many details of my ETS physical are fuzzy after all these years, I do recall discussing the surgery, the bunion etc with the physician who did my exam.

Note that I filed the 2017 claim only after another veteran told me that I was entitled to an award for this....so I filed the claim and it was granted.  

My question is, that I thought that I was entitled to this years ago when I ETS’d in 1998. However, it seems nothing came of my mention of this at the exam....and as I said before the details of the exam are fuzzy....but I seem to recall being told that it was not awardable.....so was there a mistake somewhere?  Was there something I needed to do at that time? I assumed the exam was to note any potential service connected issues. Did I drop the ball, or the examiner? How can I figure this out?

If I was entitled to an award in 2017, why was I not entitled in 1998?

I hope that I’ve clearly articulated the issue/concern.

thank you

[broncovet]

While I agree with Buck, it would be helpfull to note that your post would be better if it had a more releveant title, such as:  "Effective date 1998 or 2017?"  This way, people who have experience or knowledge with effective dates can easily find your post.  Most of us just dont have time to read every single post, so we try to help those in our areas of expertise.  

I agree with Buck..this is not the place to insult other Vets, calling their post "horrible".  Instead, just point out how it could be better.  If posters "bury" there questions on an irrelevant title, then they just dont get as good of answers if they title their post with something relevant.  

I do that on my computer too.  I have pictures, and they are given a number, like 184953.  So, if this is a picture of my grandkids squirting each other with a hose, I rename that picture something like "Grandkids water fight 2018."  By renaming the picture with a relevant name I can probably easily find this again.  

[kanewnut]

ASKNOD posted this in  https://community.hadit.com/forums/topic/70719-1975-cue/

 

The VA is famous for using smoke and mirrors. Just for shoots  and grins, think about some early decision you folks received in, say, 1991.The big buzz phrase then was "It was acute and transitory and resolved before separation." Let's say you bought it and didn't appeal. It's still CUE viable because that's the WRONG STANDARD OF REVIEW. Look at the statement you quoted WomanMarine. If  the sublexing patella occurred in the military , then it is service connected. If you did have it and it was noted at entry, and then got worse (especially within the golden one-year period after separation), it's still service connected. To deny ignores the precept of §3.1 and §3.303(a) - to wit, if it happened in the service or got worse in the service, it's service connected absent willful misconduct. If it is found to be SC, then a finding of fact states as much. Wilson v. Derwinski 1990 (The regulation requires continuity of symptomatology, not continuity of treatment.) "Acute and transitory and resolved before separation" is a finding of fact. But it is not grounds for declaring it non-service connected. Remember, it is either service connected or it's not service connected. You can't be a little pregnant here.

VA is fond of using the wrong standard of review. If the sublexing patella occurred in the service and seemed to resolve by separation, then you'd file for sublexing patella and, if it was acute, healed  and asymptomatic, that would be a finding of fact. When you were discharged, you had an exhausting physical that examined you from stem to stern. You answered questions on it. It's called a DoD form 93. That becomes the benchmark against anything you claim in the future. If you did not complain about the patellar but there is evidence you were treated for it in service, it's CUE not to rate you for it. Who cares if it's 0%. That is not the issue. If you were asymptomatic, the regulation (§4.31) is specific-if there is no rating for 0% on a given VASRD rating, §4.31 authorizes a 0% can be applied. After a finding of fact showing it is SC, the next judicial step is to declare the finding of fact a conclusion of law.  The conclusion of law  must then be applied which is "Service connection for sublexing patella is granted."

So many gloss over the Big CUE because VA has you sidelined into an alternative view of what you're claiming as CUE. You're  distracted into beating a brick wall trying to argue the "The evidence does not reveal aggravation beyond the natural progression of the original injury. "  when you should be arguing for the SC as the CUE.

So think about that the next time you peruse old decisions for CUE.

[vetquest]

13 minutes ago, kanewnut said:

When you were discharged, you had an exhausting physical that examined you from stem to stern. You answered questions on it. It's called a DoD form 93. That becomes the benchmark against anything you claim in the future.

One issue that many of us face is we did not have such a discharge physical.  I was declared physically fit to be discharged as suffering a medical disability not considered a medical disability.  How's that for doublespeak? 

[Buck52]

This statment from ask nod speaks for its self

''The VA is famous for using smoke and mirrors. Just for shoots  and grins, think about some early decision you folks received in, say, 1991''

Ok to recieve a decision either way approved or denied you need to had filed a claim.

As I understand it you never filed a claim back in 1998 after you had surgery in 1997 ? had you filed a claim most of what you report is true  otherwise since no claim was filed for this condition no compensation to be compensated for..even if you have the medical records   without a claim those medical records are useless  in this Issue.

The VA certainly will not file the claim for you  unless you had a compassionate VA Dr  or a POA /Rep that actually filed the claim on your behalf.

[FormerMember]

Who cares about a SF 93 if you do have STRs showing a specific injury or disease? It doesn't even need to have a name. The STR can declare R/O (rule out) patellofemoral injury ( or whatever) and it might turn out to be a miniscus tear. Always remember, you are not a doctor nor are you expected to be. By law, (Layno v. Brown 1994) you can always legally say "I have an owie on my knee from service".  What you cannot say is "Pardon me, but I seem to have a meniscal tear in my right knee." If the STRs say so then Bingo. SC for knee disability. VA will try to use the SF 93 against you if it is there and they use it against you if it isn't. Six of one- half a dozen of the other. Change your game and work around it. Remember always, there was a SF 88/SF 89 when you entered. It's a testimony to the fact that the Presumption of Soundness attaches except for deficiencies "as noted".  So if it says both your knees were 5 by, and your in-service STRs document a LOD knee injury, then Boy howdy-you're gonna be SC'd for Knee(s) eventually. If VA gives you any shi(f)t and denies, you go buy a Nexus and slap them down with it.

We always win. You can't really lose. It just takes way longer if you don't follow the recipe from the get-go. Seriously, folks. How many of you read about a LOD loser here with legitimate records of service incurrence? I've been doing this since 1989 and the denied list is due primarily to lack of entitlement or bad paper. You may have to go to the CAVC as I did to prevail but you will always prevail-well- assuming you have a savvy legal mind or above-average legal counsel. That, of course, rules out about 98% of VSOs. No insults intended but I just base it on what I read at the BVA decisions site. VA Lions-85, Christian Vets-15. That's what this site is all about.

Never get caught up in a singleminded path to benefits. Always expect setbacks or detours. Have alternative pathways, secondary conditions and an extra IMO in reserve. In VA poker, you bet like you only have two aces, not the 3 and a pair of 8s you're holding. You wouldn't believe the evidence I pull out of my hat at DRO hearings. How about showing up with 50 of the 176 pages of STRs VA forgot to go get (at the NPRC) in 1970 when you filed for SFW in 12 muscle groups? I made them go get their own copies. They thought I was lying anyway. How about a 1969 General Courts Martial onion skin transcript in the original Blue Folder showing a major altered state and they denied you a year later in 1970 for Bent brain when you got out. The idea is to roll their socks down. I like it when they suddenly suck their lower lip in and moan a little bit. 

I don't just do this to help Vets. I do it for the entertainment value. VA should never have pulled my string in 1989... and 1992...and 1994-95  and 1998... and 2007, 2008, 2010,2011,2014, 2015,2016, 2017 and now in 2018. Now it's a p*issing match, folks. What can I say? They accredited me and gave me access to the VBMS. How stupid can you get?

Edited April 15, 2018 by asknod

[Gastone]

AN, you're way too harsh on those well-meaning, overworked (just ask them) VSOs.