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]

@pacmanx1, back on page 22 you stated you uploaded your CUE claim (526EZ) online.  This seems to no longer be allowed or has taken a different route.

I'm given these choices:

 

Are you filing a new claim or are you disagreeing with a VA decision on an earlier claim?

I’m filing a claim for a new condition or for a condition that’s gotten worse.

I’m disagreeing with a VA decision on my claim.

 

Obviously this is not a new claim.  When I click on the 'disagree', it states the following:
 

If you disagree with a VA decision on your claim, you’ll need to request a decision review.

Learn about the decision review process

then....

VA decision reviews and appeals

The legacy VA appeals process has changed to the decision review process. If you disagree with a VA decision dated on or after February 19, 2019, you can choose from 3 decision review options (Supplemental Claim, Higher-Level Review, or Board Appeal) to continue your case. If you aren’t satisfied with the results of the first option you choose, you can try another eligible option.

On this page

• Request a decision review or appeal
• Manage your decision reviews and appeals
• More information and resources

If I click on decision review or appeal, I'm given this:

Request a decision review or appeal

• Decision review option: Supplemental Claim 

  You can file a Supplemental Claim if you have new and relevant evidence that we didn't have when we reviewed your case before.

• Decision review option: Higher-Level Review 

  Ask for a more senior reviewer to look at your case. You can’t submit new evidence with a Higher-Level Review.

• Decision review option: Board Appeal 

  If you don’t agree with the decision on your Supplemental Claim or Higher-Level Review, you can appeal to a Veterans Law Judge at the Board of Veterans’ Appeals.

 

For the Supplemental, I need do the 0995 form and the for the Higher Lever, I need the 0996 form.

Advice?

[pacmanx1]

1 hour ago, Scottish_Knight said:

@pacmanx1, back on page 22 you stated you uploaded your CUE claim (526EZ) online.

I filed a CUE claim and a Reopen claim. When a veteran file a request for an EED, I feel the veteran should use whatever regulations and or cite specific claims that would/will support his/her Earlier Effective Date. Not just 38 CFR 3.156(D) states that the VA will re-adjudicate all the evidence of record but Bernard v Brown, 4 Vet. App. 384, 390 (1993) states that once a claim is re-open, a claimant is “entitled to have his/her claim re-adjudicated on the basis of all the evidence of records, both old and new.”

Also prior to March 24, 2015 if a veteran had his/her claim denied, the veteran could use 38 CFR 3.157(A or B) in requesting an EED, but the VA removed this regulation, and most veterans don’t even know about it. Yes, veterans can still use this regulation as long as his/her claim was denied prior to March 24, 2015 and the veteran evidence is dated prior to March 24, 2015. I agree that the request should be short and to the point but keep in mind a veteran can file a CUE or a Reopen claim or a Decision Review Request in requesting an Earlier Effective Date.

[Buck52]

I Was going through my c-file looking at records and VA letters for  apossible claim audit back in 1998./2003.... broncovet was helping me with....I found where they  (VA )..WAS APPROVED FOR  @ 0 % service connection  for HEARING LOSS that I filed for in 1998  OK IN 1999 A VA EMPLOYEE (AUDOLOGIST) REOPEN MY CLAIM WITHOUT ME KNOWING ABOUT IT  AND THEY GAV ME 50% in 2000, I  I think they should have service connected it at some percent  when they gave me the o % in 99  but it was 2000...so someone reopen my claim and I got 50%  at the time I WAS just happy to get anything  but looking back they should have gave me a % when they service connected FOR  my hearingloss...I went from 0% hearing loss to 50% hearingloss in less than 6 months   we do not lose our hearing that fast  but I was more than likely or at least 50% when they tested me the first time.....anyway   I gave up on the audit  it was basically for a better EED. so when they service connected me in 1999 for 0%   my question is the 20 year rule started when the service connected me at 0& right> or do we need a %?  if so my 50% I got in 2000   my 20 year rule is ok for the 50%  but for my 100% that was decided in dec 2003  back dated to Dec 2002  so Dec 2002  of next year I will have my 20 years in for the complete 20 year rule   correct?

sorry to OP never intended to hijack your thred   just some chit chat.

Edited May 7, 2021 by Buck52

[Scottish_Knight]

No worries @Buck52.  Interesting what you wrote.

The CUE is sent.... I can only hope correctly.  The website, as earlier explained, was confusing.  I rang the VA...  never fun, especially as I cannot reach anyone at the 1000 number.  I rang the other and had a stunningly friendly woman on the phone.  We chatted on the issue I was having and she connected me to someone who partly helped.  We were disconnected before all was said and done.

Although I filled in a pdf 526EZ, it is now done automatically when one files a new claim.  I uploaded everything and his sent.  Now begins the great waiting game.

The woman was unsure at first what to actually do.  Aye, I was disagreeing with a VA decision, but this was more than a year from the date of the rating.  Her suggestion was to do a new claim and upload everything.  My gut feeling is in a few weeks time, the claim will be closed and I will need to contact the VA who will in the end tell me to mail it in.

One interesting note regarding the second woman I spoke with.  She, albeit polite and friendly, discussed the CUE with me.  At first she was hesitant, but after my explanation and before we were disconnected, she was beginning to understand.  She could, of course, not provide any guidance or opinions, but I feel from her tone, that this may prove positive.

We shall see.

[Buck52]

Yes it sounds favorable but we never know until we get the BBE in the mail.

hang in there. And one thing you want to do no matter what...  NEVER GIVE UP.

 Another weird  thing,  I had ask for TDIU in 2000  when they gave me a 50%rating for my hearing loss but due to I could not work do the job I was trained to do and according to my VA VOC-REHAB COUNSLOR I was untrainable at that time   FROM DEC 20-2002 WHEN THEY GAVE ME THE TDIU P&T at this time due to my service connected hearing loss.. the right thing to do is to give me the TDIU BACK TO 2000 ..A NIFFTY  PIECE OF BACK RETRO PAY...ALMOST 24 MONTHS AT 100%. OR ON THESE DATES WITH THE 50% MINUS WHAT THEY HAD PAID ME FROM 2000..STILL A LARGE HUNK $$$

ALL I NEEDED TO DO IS FIND THE application for unemployability (21 -8940)  I did find the first page of this application in my C-File   but the second page is missing and that's the page with the applied date on it.  so if I can't produce that page. Then no cigar...why that page is missing is anyone's guess ? I never took it out...someone working for the VA had to. 

but how do you prove something like that?...why did I have the front page and not the back /second page?   THIS IS MY REASON CALLING OFF THE AUDIT.

 

Edited May 7, 2021 by Buck52

[Scottish_Knight]

1 hour ago, Buck52 said:

ALL I NEEDED TO DO IS FIND THE application for unemployability (21 -8940)  I did find the first page of this application in my C-File   but the second page is missing and that's the page with the applied date on it.  so if I can't produce that page. Then no cigar...why that page is missing is anyone's guess ? I never took it out...someone working for the VA had to. 

but how do you prove something like that?...why did I have the front page and not the back /second page?   THIS IS MY REASON CALLING OFF THE AUDIT.

 

Buck52, if the C-File contained the first, but not the second page, you obviously sent the application.

Take a wee look at 38 U.S. Code § 5102 - Application forms furnished upon request; notice to claimants of incomplete applications. 

Seems the VA is in violation of this law.  If they claim they only had the first page, then they must contact you, which you say they obviously did not do.

My gut feeling is the VA fails on this often and veterans don't cite or use it.  Consider the US Code are statutes passed by the US Congress.  These are laws.  The CFR are basically regulations imposed by various US Government agencies and departments (in the case of 38 CFR, the VA) that come from the US Code.  In layman's terms, to violate the US Code is to violate a US law.  To violate a section under the CFR is merely failure to obey a regulation. 

If it's not too late, go after the VA on 5102.