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

[Scottish_Knight]

More interesting by the day....

I just pulled the 21-526 (see, I am organised!).  Part B shows a list of the disabilities I claimed back in 2009, under Part 1 of B.  But 2-4b are all blank.  Someone (not me!) drew a diagonal line across those with 'See STRS'. 

I assume STRS is Service Treatment Records?  There was no Service Treatment Records in my medical file for this.  I, too, think we might have found the basis for a CUE.  I'm going to write the DAV straight away and see if that is in fact the case.  Why did they have me request those particular records, unless the VA did not have them in 2009. 

The down side of that is that the VA would have had to know in 2009 that I was treated at the Regensburg hospital. 

I looked through my records (twice) from 2001.  There is a one page document from the Regensburg hospital.  To call it a discharge document would raise it to a higher level.  It is merely showing what personal items were taken and returned to me.  Nothing more.  Moreover, none of the MEDDAC documents make mention that I was in the Regensburg hospital.

Now, it would seem to me, but would the RO at the VA think something along the lines of, 'I see Mr Sinclair underwent surgery in 2001 for a gunshot wound.  Hmmm, why are there no records pertaining to the surgery in his file?  I think we need to ring him and ask.'  If something is obvious and missing, should there not have been a follow up to obtain those?

Yes, I need to coordinate with the DAV on that.  I believe the VA did not have the records in 2009.  Furthermore, they made no attempt to locate them.  They failed and I too think that is a massive CUE.

Thank you Berta!

Edited January 29, 2021 by Scottish_Knight

[Berta]

I posted a request in this forum for more eyes on your situation....

I coudn't find the pdf here and will try to attach it from my Fox doc.

The weather is affecting my internet- 

[Scottish_Knight]

I've looked back over the emails between the DAV and me.  Back in March 2020, the DAV had me complete and return to them VA Form 21-4142.  So, it would seem the VA had absolutely nothing on the 2001 surgery and failed to ask on it back in 2009.

[Berta]

I agree- that is the correct form- and this means the DAV certainly has a basis for a CUE claim.

violation of 38 CFR 4.6:

"§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

https://www.law.cornell.edu/cfr/text/38/4.6

 

You had 'elements of probative value  listed on the 21-4142, that were not 'thoroughly and conscientiously studied by each member of the rating board,' because, the VA  failed to obtain all of the specific records as noted on the 21-4142', and the "0" SC rating for GSW/residuals ,was therefore to your detriment.

The diagnostic code they used is in error as well, but DAV could elaborate on that or jjust say in the CUE that the DC the VA used is inaccurate as it did not contemplate all of the evidence of record to include records from the specific hospital in Germany or from Meddac.

I am not sure what the proper DC code should have been but in any event I have been very successful with 38 CFR 4.6 regarding CUE and I think maybe that is the only legal error the DAV would need to cite.

It is my favorite regulation:

'Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.'

 

 

 

 

[Berta]

Here is the 2009 decision PDF

GSW vet Hadit Jan 2012.pdf

[Berta]

I asked others here to give some input:

https://community.hadit.com/topic/83264-we-need-more-input-here/#comment-502681

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