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

[Treymon]

On 11/2/2021 at 5:47 AM, Berta said:

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.

 

 

[Treymon]

Just now, Treymon said:

They were supposed to render the 100% in 1990 but could not find my claim that I filed in 1990 but I do have a copy or proof that I filled of that filing from a decision in 1990. I had to go to the Denver VAMC and find Vee Blackstock who was retired from that office and she found all the medical records that I needed to prove that I was diagnosed with PTSD.

 

 

 

Just now, Treymon said:

 

 

Just now, Treymon said:

 

 

[Scottish_Knight]

Right then, to keep things concise, I'll continue my wee saga here.

A year ago, I had my first mental health C&P, the results of which were an awarded 70% DR.  Of course, this only began on the date of the 'new disability' request for C&P (forgot the actual phrase).  No retro pay.

The psychologist rightfully understood that the state of the mental health did not manifest itself in 2021, but began back in 2001 when I was shot in the line of duty and progressed over time.

Bear with me folks....

As a former CID special agent, a job which I loved and miss, had I mentioned mental health issues back then, I would have had my gun and badge taken and put to pasture.  Law Enforcement and documented mental illness, albeit nothing horrid, do not mix.  I was only asked if I wanted to come back to work.  Nothing more.  I only had physical therapy for a few months.  But I recall well going to the shooting range with crutches not long after my hospital release.  Not one person asked how I was mentally.  They knew better.  Kiss of death to ask.

§4.42 in part states, 'When possible, this should include complete neurological and psychiatric examination, and other special examinations indicated by the physical condition, in addition to the required general and orthopedic or surgical examinations'. 

'When possible' and 'should' are terms I despise in regulatory guidance or law.  These words are too malleable.  In other words, one can do these or not.  Meh!

I am currently working to find two or more IMO on the mental health matters.  I want to show that my mental health did not manifest itself last year, but rather an issue I've been dealing with since 2001. 

First question is, does anyone know of other regulatory guidance, be it the CFR, US Code or case law that might involve mental health I can use.  I'm not finding anything and §4.42 alone is too weak, I feel.

Next, would this be a CUE?  Keep in mind that at my initial C&P back in 2009, I was awarded 0% for the gunshot wound and destroyed femur.  In 2020, the VA realised their mistake with the assistance of the DAV and increased the DR to 40%.  However, it was not until I submitted a CUE last year for the VA to realise the overall error and award it retroactively and increased the injury to 60%.

Aye, I want the VA to recognise my mental health issues back to 2009, problem is there is nothing in my medical records, as previously stated.

This is similar to the gunshot wound, but markedly different.  More importantly, and again, to cite only 4.42 will do me little justice. 

CUE or something else?  Cite only §4.42 or are there additional statutes, regs or case law?

Looking forward to your replies.

Cheers, Hondo

[Scottish_Knight]

Right then, have a question and it does pertain to the matter I began years ago on Hadit. 

Before winning my CUE claim (2021) and being granted an actual disability rating above 0%, I had a surgery to my leg that dealt directly with my SC injury in 2017.  I paid 6000€ for this and submitted a claim to the VA.  I was denied - no surprise there.  I rang the VA and was told that since my SC injury was rated at 0%, they saw no reason to reimburse for the surgery.

This year I submitted the claim again with a letter explaining the circumstances - mostly dealing with the CUE.  Moreover, had the VA properly recognised the injury and applied a proper rating decision in 2009, the surgery would have been reimbursed in 2017.   No surprise.... this too was denied.  Reason?  Not submitted in a timely manner.  Aye, but mitigating circumstances.

Is there a means to have someone with experience at the VA (higher up) take a wee look at this?  Is it worth re-submitting , yet again, to the VA?  Can one request a supervisor review a claim?

Cheers!

[broncovet]

Scottish Knight:  

You posted:

Quote

Before winning my CUE claim (2021) and being granted an actual disability rating above 0%, I had a surgery to my leg that dealt directly with my SC injury in 2017.  I paid 6000€ for this and submitted a claim to the VA.  I was denied - no surprise there.  I rang the VA and was told that since my SC injury was rated at 0%, they saw no reason to reimburse for the surgery.

    Wow!   If you have won a CUE claim, then you almost certainly have considerable knowledge on Veterans law.  

Im not sure my 2 cents will help, but here goes:

    This sounds like a bogus denial.  While I wont pretend to have read and understood every single VA regualtion, I do know that I have never read anything "which requires a minimum of xx disability percentage" to reimburse for SC connected surgery.  Instead, This is the criteria for community care:

https://www.va.gov/COMMUNITYCARE/docs/pubfiles/factsheets/VA-FS_CC-Eligibility.pdf

     In relevant part, this criteria includes this statment:

Quote

Quote

Meeting any one of six eligibility criteria (above) is sufficient for referral to community care, a Veteran does not have to meet all 6 to be referred to community care.  

 

If this were my claim (and its not), I think I would appeal that denial, and would cite the eligibility, I referenced, above.  

However, I would not stop there!   I would review my medical records, and look them over with a fine tooth comb, and see if there were any other disabilities, and especially if an increase in an existing disability was warranted, to get you to 100 percent.  This would include tdiu if you are not working.  I would apply for those applicable increases, and its even possible your retro could be larger than 6000 pounds.  

     Wild card:  You may well have to deal with the "time" issue.  Indeed, it may be helpful if you documented "when you rang" VA and discussed this with them.  It would be awesome if this 2017 conversation was documented.  To find out, you would need your records.  You seem pretty certain of the results of your 2017 phone call.  Indeed, if documented, this may be enough to document "you did apply in a timely manner".  In 2017, this may not have had to be done in writing.  

     I do know that I went to community care, I think it was 2014 or around then,  My wife called the VAMC and told them,

"My husband is possibly having a heart attack, and I am on the way to bring him in."  

They responded, "Dont bring him here, we are full with no beds available. Take him to a private hospital".  My wife asked, "which private hosptial?"   The response was that she chose whichever she liked.  

    There was absolutely no documentation, that Im aware of, other than this phone call, but I paid zero for the hosptial bill and VA covered it all.  So, Im guessing a phone call is sufficient documentation, but dont hold me to that, because IDK.  

[Scottish_Knight]

Good morning BroncoVet, thank you for the response and compliment.  I believe I uploaded a copy of my CUE claim within this thread.  Perhaps somewhere around page 22.  Can't recall.  I asked Berta at the time to give it a wee glance before I send it.  I wouldn't say I have considerable VA law knowledge.  Far from it.  I was a CID special agent (akin to NCIS - only better! ) so I have practical experience of applying law to situations.  To be honest, I was not expecting to win my first attempt at the CUE claim, but it worked.

I did some reviewing last night of my various VA folders and see also that I was not enrolled in the FMP (Foreign Medical Programme) back in 2017.  I might well have been a combination of no enrollment and a zero rating.  Regardless, I would like to re-submit the claim to a higher level.

How does one re-submit to a higher level reviewer or decision maker?  Is there a trick to that or a different means to send the re-submitted claim?

On the TDIU you suggested.  I am quite happy with my 90%.  Without getting to lengthy....  Initially, I had 20%.  The CUE increased it to 70%.  I then made a claim about PTSD and hearing loss, which raised it to 90%.  I own my own business here in Germany and whilst the Germans care nothing about my VA disability, the 90% suits my needs.  I'm 60 and enjoy my work too much.

Thoughts on the higher level claim?