VA asking questions on injury background. Warranted?

[Scottish_Knight]

Greetings all,

I served from 1988 to 2009, roughly 18 of those 21 years were as an Army CID Special Agent.  In 2001, I was shot in the leg, which destroy the femur.  This occurred on a US military installation, however I was taken to a civilian hospital for the surgery and was later transferred to a MEDDAC.  The bullet traveled through the femur, so a rod was inserted with two lower and two upper screws.  I lost not only length in the leg (2cm) but my hamstring atrophied.  Since then, I've encountered continued pain in my knee and hip.  All was documented in my military medical records.  Often times, the pain would have me seek medical attention about 2 times per year, which again is documented.

I underwent surgery last year to remove one of the screws (all are now broken) that was pressing against a tendon causing extreme pain.  The surgeon explained the others will need be replaced and I will also need a hip replacement in the coming years.  The pain continues.

My VA exam was in 2009 and at that time the length difference in my legs was disclosed to me for the first time and as xrays were obtained, the screws were discovered to be broken.  The VA Rating Decision gave me 0%. 

Unknown to me was the appeal process.  Last year, I found someone who is helping me with the appeal.  I live in a remote part of southern Germany, so connection to other retirees and vets is nil.

This week, through my appeal representative, the VA has contacted me.  They want all the background information on the shooting.  They require the who, what, when, where, why, and how of this incident.  I am also to supply them with records I have that they don't.  First, they have a copy of my entire medical record.  How am I to know what they don't have?  Second, the Rating Decision states that this injury was service connected and in the line of duty, so why is the background information required?  Had I been shot while in Afghanistan would they be asking the same questions?

Perhaps I simply do not know exactly how the VA adjudicates the claims.  As this is not a presumptive matter, evidence of the injury must be presented.  They have that in the form of my military medical records.  Do the circumstances behind the shooting hold weight on determining the extent of either the injury or the level and percentage of my disability?  Does the background on an injury play some part of the adjudication process and awarded disability to which I am unaware?

Thank you in advance for any insight into this.

Edited October 26, 2018 by Scottish_Knight

[Berta]

I regret that I only found one single case at the BVA filed under CUE, whereby the veterans referenced 38CFR 4.42 and found no decicion there under CUE search referenced 38 CFR 4.70.

I found CUEs in the diagnostic codes they gave my husband on a posthumous award letter-and I attacked the decision that way.

The codes they used were wrong because of the interpretations of the C & P exams they did. As well as the Percentage they applied.

Unfortunately any veteran who gets a C & P exam that is faulty in any way,should gripe about the Exam to whoever performed it-( LHI,VES, or QTC,).however that is noot always possible.

The Legal error is within the codes and percentages in the rating sheet.It is relevant  to the diagnostic codes and percentages , at time of the alleged decision being CUED.

Raising DTA ( Duty to Assist) will not help regarding a CUE claim.

 

 

 

 

 

 

 

[Berta]

I regret that I only found one single case at the BVA filed under CUE, whereby the veterans referenced 38CFR 4.42 and found no decicion there under CUE search referenced 38 CFR 4.70.

I found CUEs in the diagnostic codes they gave my husband on a posthumous award letter-and I attacked the decision that way.

The diagostic codes they used were wrong because of the interpretations of the C & P exams they did. As well as the Percentage they applied.

Unfortunately any veteran who gets a C & P exam that is faulty in any way,should gripe abut the Exam to whoever performed it-( LHI,VES, or QTC,) IMMEDIATELY but that is not always possible to do.

I will look into the 2020-2021 VBM to see if there is anything there that wiuld change my opinion on the regulations, 38 CFR 4.42 andf 38 CFR 4.70, as basis for CUE , and replyif I find anything to help.

 

 

 

 

 

 

[Scottish_Knight]

Good morning @Berta, thank you for the input.  Perhaps, the lack of BVA rulings on CUEs could be that they were correctly administered or adjudicated at the RO level and never needed presentation at the BVA level?  Just a wee thought.

As you read and are fully aware, I'm arguing on the mental health matter.  What gets me is the phrase, 'When possible, this should include complete neurological and psychiatric examination...'  This leaves it open.  It's not mandated and need be so. 

In 1996, CID digitised all forms into their internal computer system.  One form, the rights waiver, had a massive error pertaining to civilians.  It stated to the effect of 'If a lawyer is request one may be appointed to you.  The old physical form stated that one (lawyer) will be appointed.  A huge different meaning between those words.  I was responsible for finding the error and having the digitised form purged and redone.  That was a legal mistake.

Can't help but wonder if this is perhaps a similarity.  For me to have undergone a psychiatric exam in 2009 was fully possible.  I didn't slip on ice and break an arm, I was shot in the line of duty.  One might conclude that this had an adverse effect on me.  Few can easily admit to having mental issues.  Obviously the psychiatrist I spoke with in March of this year clearly recognised it.  

I'm awaiting my C-File.  When it arrives, I'll review it and make changes to my CUE claim.  But send it up I will. 

Edited September 20, 2021 by Scottish_Knight

[Treymon]

I have a weird question and need some help in trying to figure this out. I thought that I was working with a Member of the VFW on my claims. Turns out the person that I am working with is an employee with the BVA and has no affiliation with the VFW. This person has been answering my questions with links and I have been going to those to get my enlisted service records and C-file. I received a letter from the BVA saying that they could not find my enlisted service record and or C-File. I sent another letter to the Claims Intake Center to Janesville, WI and got one response saying that they would send a disc (that could be read by any computer) but would not send a paper copy. 

I went to a VES meeting in Eugene Oregon and the attending physician denied my claim. He said that he could not find my enlisted service record any where! How can I have just disappeared!

I have received no further response from them since around May of 2021.

How do I get to the bottom of this and find out what is going on?

Thank You Ladies and Gentlemen,

Thomas "Trey" Lawler

Letter to VA Claims Center Redacted may 2020 .pdf

[Scottish_Knight]

@Treymon  there's a lot here...

Firstly, what are you referring to as enlisted service records?  Your ERB?  Your DD214?  If yes, these are not held or maintained by the VA.  The VA only maintains your medical records, which you should have your own copy of.

Secondly, to obtain your C-File, you need to fill and send a VA Form 20-10206 to the VA.  A letter doesn't do it.  It does take time (months) for it to be sent to you.

Next, I'm not clear how you could be working with someone from the BVA.  How did that even happen, much less think they were affiliated with the VFW?  And what do you mean by 'working with'?  Members of the Board of Veteran's Affairs are not going to work with a vet on preparing a claim.  Could you expound on this.

Lastly, A VES physician cannot deny a claim.  They do not have that ability.  They simply exam the vet and report the findings back to the VA.  Did the physician perhaps tell you 'there's nothing wrong with you' or words to that effect?  The physician does not have access to your complete c-file.  He or she is provide specific information pertaining to the vet's illness or injury that they are instructed to exam.  For a contracted physician to mention this seems odd indeed. 
 

Edited November 2, 2021 by Scottish_Knight

[Berta]

They must have had them (your service records) when they awarded you the 100%. When was that?

" I sent another letter to the Claims Intake Center to Janesville, WI and got one response saying that they would send a disc (that could be read by any computer) but would not send a paper copy."

Did they send the disc?

Is it possbile that you applied for SSDI fairly recently ,when VA awarded the 100%, beause the SSA office that handled your SSDI claim, might still have those military records. 

Like others here, I am quite confused with your post.