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]

“ORDER

 

A 40 percent rating for residuals of an injury to the right femur, Muscle Group (MG) XIII, is granted, subject to the laws and regulations governing the award of monetary benefits.”

https://www.va.gov/vetapp19/files4/19131401.txt

(I cannot tell if this veteran had a GSW that caused the Femur fracture- He also had some claims denied but also was awarded TDIU.)

This case states:

“ REMANDED

 

“Entitlement to an initial rating in excess of 10 percent for residuals of a gunshot wound, muscle group XIII with scar is remanded.”

 https://www.va.gov/vetapp20/files4/20025524.txt

In this case the veteran had a through and through GSW @ 10% but was remanded

“Entitlement to an increased rating in ex In August 2020 correspondence, the Veteran, through his representative, relayed that they had requested clarification from the clinician on whether both XIV or XIII muscle groups were affected or whether one was indicated in error. As of the date of this decision, no such clarification is in the claims file.

 

“Unfortunately, the November 2015 VA muscle injuries examination is not helpful to resolving this inquiry, as the examiner found that no muscle group was affected by the gunshot wound.”

https://www.va.gov/vetapp20/files11/20074298.txt

These are long BVA decision but their  diagnostic codes and other info might help you-this vet questioned 3 of the muscle group  injury criteria:

“There is significant confusion as to which muscle group is affected by the Veteran’s injury, with three different muscle groups being cited throughout the record. As the Board is unable to make a medical determination regarding which muscle group(s) are involved and the severity of the injury(ies), the claim must once again be remanded.”

He and his representative raised MG XIII, MG XIV(extension) and also MG XV III.

 

 

 

 

 

This is what I searched :

find these words:

Gun Shot Wound

this exact word or phrase:

muscle group XIII

any of these words:

left femur fracture

none of these words:

results per page:  10   20   50

select/clear years below:   2021 (10)  2020 (35)  2019 (28)  2018 (26)  2017  2016  2015  2014  2013  2012  2011  2010  2009  2008  2007  2006  2005  2004  2003  2002  2001  2000  1999  1998  1997  1996  1995  1994  1993  1992

Page 1 of 99 results — searched 313820

 (gun shot wound) AND ("muscle group xiii") AND (left OR femur OR fracture)

And 99 popped up in just the four last years at BVA:

https://www.index.va.gov/search/va/bva_search.jsp?QT=Gun+Shot+Wound&EW=muscle+group+XIII&AT=left+femur+fracture&ET=&RPP=10&DB=2021&DB=2020&DB=2019&DB=2018

 

[Berta]

Just to add , it is time consuming to search for BVA decisions. BUT the denials are as important as the awards.

I have learned as much from them as from the VBM.

One o the best CUEs I ever read at the BVA regarded muscle groups, The Veteran only got 10% for ten % CUE but the 10% retro was for DECADES!

[Scottish_Knight]

1 hour ago, Berta said:

Hi Berta,

hope you're doing well.  Thank you for the compliments.  It simply involved quite a bit of research.

 

I have started all of my CUE claims thus:

 

To whom it may concern: 

That sounds a more 'governmental' means to begin the letter.  Thank you. There is no alphanumeric number where the date is.

 

 This is a claim under auspices of  CUE, 38 USC, 5109A. - Need to add that. Cheers!

 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.

This is difficult, to a degree, and does involve the below.  In 2009, the VA 'wrongly' combined the broken femur and muscle group XIII.  Rightly so, they separated the two disabilities in 2020.  I thought it best from the start to split these.  In order to do that, I needed to cite §4.14.  This allowed me and the VA to see these are two unique symptoms / disabilities.  Otherwise is becomes to confusing.  Be that as it is, I could still add §4.6 into the beginning section. 

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

I completely agree and this weighted on me last night and this morning.  But I do understand the VA's concern on pyramiding.  Moreover, I don't care for the word.  However, there is a reason I worded this way.  Having been a CID agent, I do understand legalese to a large degree. In order to state a matter is in violation to a law or regulation, it is best to use the exact phrasing.  To change the wording or to make it more reader friendly, can take away from the spirit of the law.  The VA chose to implement this poorly described section by using this troublesome word.  The section could have been much better written and detailed, but the VA is the VA.  They correctly applied §4.14 in 2020 and not in 2009.  The only means to detail this violation is to use their own method.

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.

This is typical CID.  We spent 60 - 70% of our time writing reports.  The best method I had was to write, wait, re-read, edit, then send.  I still do that to this day.  With the German bureaucracy, it is extremely important.

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

He knows or did.  It doesn't matter the outcome while we walk this earth, but what we leave behind for those we care about.  The money I get from the VA on this CUE will not go to me.  This will be divided into the two savings accounts I have for my daughters.  The accounts are 29 and 27 years old, as are they.  I do this for them.

Thank you Berta.  I have some more editing to do now.

 

 

 

 

 

 

 

[Scottish_Knight]

I did get the 40% rating for the Muscle Group XIII last year and 10% for the broken femur.  Both of these should have been such in 2009.

Thank you again!

 

EDIT:  I did searches under the BVA and CVA for similar matters.  It was quite helpful.

Edited May 6, 2021 by Scottish_Knight

[Berta]

Yeah, that is great! 40% ! and you are doing the right thing to CUE them now on the 2009 decision.

Many,if not most of my CUEs were on awards letters.But in cases of many CUEs ,vets have to file on denials.

 

 

[Scottish_Knight]

I've added your thoughts and comments to the letter, Berta. 

The paragraph under the initial §4.6 citation, will most like not be taken well.  It is what it is.

 

CUE write up.doc

Edited May 6, 2021 by Scottish_Knight