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

[Buck52]

This could be classed as what VA calls ''pyramiding ''

 4.14 Avoidance of pyramiding.

The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, others, not. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided.

[Scottish_Knight]

5 minutes ago, Buck52 said:

This could be classed as what VA calls ''pyramiding ''

 4.14 Avoidance of pyramiding.

The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, others, not. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided.

Hi Buck52, I've read on this 'pyramiding' issue.  It's complex to describe.  In my case it would be the opposite.  From what I understand the symptoms are what the VA is to look at.  A broken femur is one symptom and an atrophied, loss of strength muscle is a second symptom brought on by the gunshot wound - the injury.

As the VA showed in 2020, pyramiding in this case is allowed, but in 2009 they failed to.  I suppose I should write it as such.  I have researched endlessly for examples, but cannot locate anything. 

[Scottish_Knight]

Ok, you wise lot, I've drafted my CUE claim.  @pacmanx1, @broncovet, @Berta, @Buck52

I'm going to read over it again tomorrow and perhaps Friday.  I would like to upload it on Monday.  Your input would be greatly appreciated.  Truly.

CUE write up.doc

[Buck52]

4 hours ago, Scottish_Knight said:

Hi Buck52, I've read on this 'pyramiding' issue.  It's complex to describe.  In my case it would be the opposite.  From what I understand the symptoms are what the VA is to look at.  A broken femur is one symptom and an atrophied, loss of strength muscle is a second symptom brought on by the gunshot wound - the injury.

As the VA showed in 2020, pyramiding in this case is allowed, but in 2009 they failed to.  I suppose I should write it as such.  I have researched endlessly for examples, but cannot locate anything. 

I Agree here  the VA does rates the systomps and not the diagnoisis .

I' would proceed with your CUE.

[Scottish_Knight]

I re-read the CUE this morning.  Didn't care for the way it read, so spent a few hours heavily editing what was written.  Will take a break and read it again to ensure it's perfect, but I feel it's much better now.   Will submit the CUE claim later today or tomorrow.

CUE write up.doc

[Berta]

You did a LOT of work on this and I commend you for that! I re read the original download many times yesterday but, I could not respond- this is a very busy time of the year for me.

I have a few suggestions.

I have started all of my CUE claims thus:

To whom it may concern: 

    
 ( or attention to the alphanumeric on the decisions being cued if it has an alpha numeric near where the date is, or near any 'Re:'

    This is a claim under auspices of  CUE, 38 USC, 5109A.
 The CUE is within your  enclosed ( date) decision and is in violation of 38 CFR 4.6: Exhibit A
“'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. “
----------------------------------------------------------------------
My point is to hit them right away with this regulation.
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I have an article here at hadit called The Power of 38 CFR 4.6.” It is not only the sole regulation I used for some of my CUES, it also covers so much, that often other legal citations do not need to be used.
38 CFR 4.6 is basic VA case law, and I think VA violates this regulation more than we know.

I seem to think this could be worded better-:
I don’t think : “failed to pyramid’ would be the best way to state that   ***-

2.  In the VA 2009 RD, the VA failed to pyramid the symptoms from the 2001 gunshot wound.  While pyramiding is to be avoid in accordance with (IAW) §4.14, the VA is mandated to treat each symptom separately.  The Veteran sustained a gunshot wound from a low velocity missile, that traveled through and through the muscle group XIII and resulted in a shattering femur bone fracture.  The broken left femur with an inserted rod is one disability and symptom and the losee of strength and atrophy to muscle group XIII is a separate disability and symptom.  Both, however, are brought on by the same injury.  To have not separated these symptoms and disabilities is in direct violation of §4.14.
***Because the VA does not look favorably at pyramiding:
“The Board notes that the July 2020 rating decision granted an increased rating to 20 percent rating for the Veteran’s right knee disability based on frequent episodes of locking, pain, and effusion.  As previously discussed, the Board finds that the RO’s assignment of an increased rating under Diagnostic Code 5258 was inappropriate because it constituted impermissible pyramiding.  The Board has restored the Veteran’s 10 percent rating under Diagnostic Code 5010-5260 and recharacterized the Veteran’s 10 percent rating under Diagnostic Code 5259 to Diagnostic Code 5010-5258, based on frequent episodes of locking, pain, and effusion, from July 24, 2020, forward, the date he was shown to have such symptoms.  As such, the Board will proceed with adjudication of a separate rating under Diagnostic Code 5258 and discuss why the Board has recharacterized the Veteran’s rating under Diagnostic Code 5259 to Diagnostic Code 5010-5258, from July 24, 2020, forward.”

https://www.va.gov/vetapp20/files12/20080814.txt

In this case 'pyramiding'  obfuscated the point the veteran was making-and caused a lowering of his rating, but the BVA restored that rating and gave other Diagnostic codes that were more appropriate.
I hope others chime in on this point.
I don’t think you need to refer to “pyramiding" at all.

I will try to find anything that can help you more- but you did a Very Good job here !!!!

Also you do what I have always done with my many personal VA claims- I would put them away for a few days-(which is often hard to do- when you know you have a solid issue and probative evidence) and then go over them again.

Sometimes they seemed OK and I was ready to submit them, but sometimes I did edit them because something needed to be clarified or edited.

This is funny now- but not at the time it happened.

My husband had two claims pending when he died, one under 1151 and one for a higher rating of his PTSD.

In those days I had to use a Brothers typewriter -we had a PC but printers were not available yet.

He dictated the claims to me. When I got done typing the Higher rating PTSD  claim, I said Oh "S--T", because I had typed "disbaled instead of disabled'.

I was going to use white out and type in the proper spelling but my husband said "No, leave it in ----" the VA HAS disbaled me!"

He had a very difficult time trying to become  a VA employee-and was still upset over a nepotism issue at the VA.I told the director to get him a job there or get served with an EEOC complaint.He got a VA position within hours.The personnel director was fired. He was also very upset at the lack of PTSD treatment and saw the employee shrink instead of the real PTSD shrink at the VAMC. The employee psychologist was a lovely man but really had no idea of what PTSD was all about, and worse yet he refused to document anything- because he did not trust the VA snooping about any employee having therapy sessions with him.

My husband's  1151 was primarily for better PTSD treatment, which he did get 2 years later ,after a big battle,  but the rest of it was critical to his 1151 claim and also to the FTCA wrongful death award.

I mailed the PTSD higher rating request in just as he said to do. Unfortunately , as I became  the substitute claimant,after he died , and had to continue those claims with evidence, he won those claims,

but he  never knew it.

 

 

 

 

 

Edited May 6, 2021 by Berta
added more.