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]

I sat down last night and read the 23 pages the VA sent.  Seems I need to continue the fight.  Insight would be appreciated.  I am quite happy that rather than the 20% I was awarded back in 2009, the VA agrees it should have been 50% (40+10+10) for 2009 through 2020.

5. Whether the initial evaluation assigned for status post left femur fracture (gunshot injury) with osteoarthritis was clearly and unmistakably erroneous. Clear and unmistakable errors are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made.

A determination that there was a clear and unmistakable error must be based on the record and the law that existed at the time of the prior decision. Once a determination is made that there was a clear and unmistakable error in a prior decision that would change the outcome, then that decision must be revised to conform to what the decision should have been. In this case, the previous disability evaluation is continued as no clear and unmistakable error is shown. (38 CFR 3.105)

VA contract examination dated September 10, 2009 reported full, painless mobility of your left hip. The x-ray report did mention moderate myositis ossificans, which possibly restricts the adduction of the left hip joint; however, definitive restriction of range of motion was not identified. This does not rise to the level of a clear and unmistakable error. Range of motion findings for the left hip were not provided in the September 10, 2009 examination. While range of motion findings should have been provided, the absence of such findings, in and of itself, is not considered a clear and unmistakable error with regard to the evaluation assigned for the left hip. The 0 percent evaluation was appropriately assigned based on the evidence of record and laws and regulations in place at the time of the rating decision.

The 0 percent evaluation is confirmed and continued from June 1, 2009.

The 10 percent evaluation is confirmed and condition from March 11, 2020 based on:
Painful motion of the hip. (38 CFR §4.59 allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. Since you demonstrate painful motion of the thigh at the hip, the minimum compensable evaluation of 10 percent is assigned.)

The VA admits, as is written above 'underlined' that the physician failed in her duties as I wrote in my CUE claim.  In my CUE claim I quoted CFR 38 §4.42 & §4.10 and I wrote, 'Furthermore, 'There is no pain on motion' and 'The left hip and left knee are fully mobile.' How this was determined is unknown to the Veteran. No thorough examinations involving range of motion or flexion of the left leg and hip were conducted. During the initial VA medical examination, the Veteran was only asked to walk a distance of approximately 5 meters.

Additionally, since the 2001 incident the Veteran is no longer able to sit cross-legged on the floor. Due to the injury, the left hip flexor does not allow the left side hip to fully extend. Had this been examined in 2009, it would have manifestly changed the outcome of the decision.'

The VA admits and is aware that the physician in 2009 did a lackadaisical and poor exam.  §4.42 states a thorough examination must be done, but falls short of stating what is to be done when this is not adhered to.  To me, the VA should have sent it back to the examining physician and requested I see her again.  This is piss poor!  Rather than ensuring the exam was thorough IAW §4.42, it's ignored.

To my thinking, I cannot do another CUE claim on this, or can I?  Should I request a Higher Review?  This is 100% a CUE.  §4.42 states, in part 'Incomplete examination is a common cause of incorrect diagnosis, especially in the neurological and psychiatric fields, and frequently leaves the Department of Veterans Affairs in doubt as to the presence or absence of disabling conditions at the time of the examination.'  How is this not a CUE?!?!

So, you learned lot, what would you do in this situation?

Edited August 24, 2021 by Scottish_Knight

[Berta]

 

CONGRADULATIONS !!! You have joned us successful Cuerinos!!!!!!

WOW- I have been going through your whole thread-

On page 11 of 32 I stated:

"Even if a CUE would only bring 10%, the retro would go back to the day after your discharge on that older decision."

It sounds like you were Very Successful with that CUE claim.....

I have to think about this- you stated:

"To my thinking, I cannot do another CUE claim on this, or can I?  "

Should I request a Higher Review?  This is 100% a CUE.  §4.42 states, in part 'Incomplete examination is a common cause of incorrect diagnosis, especially in the neurological and psychiatric fields, and frequently leaves the Department of Veterans Affairs in doubt as to the presence or absence of disabling conditions at the time of the examination.'  How is this not a CUE?!?!

I filed many CUEs on one single decision- but it is the way the VA worded their recent decision and the Evidence they used, to determine if another CUE is in order.

PS- reminding all- if anyone, vet rep, VSO, agent, tells any of  you that CUE is a one shot deal-they are highly incorrect-

Can you scan and attach it here? with the evidence list? ( Cover C file ,name, address prior to scanning it.

Was the retro date, the date after your discharge?

This is all so encouraging to others out there I am sure. And it is great news!!!!

 

 

and if the BVA dismisses a CUE claim without prejudice, that means if the claimant re- works the CUE, and re -files it as a new CUE claim then they might definitely  succeed. The most important issue of CUE, is to identify the exact legal error ( or errors) in established VA Case law ( 38 USC, 38 CFR, etc) they broke, and that legal error was to the claimant's detriment.  

 

 

 

 

 

 

Edited August 24, 2021 by Berta

[Scottish_Knight]

Thank you Berta.  I thought on it some more last night.  I will need to request a copy of my C-file before I do anything.  I want to see everything written by the doctor in 2009 (initial exam).  She did a right poor job and if my intuition is correct, there will be enough in there to do another solid CUE on this one disability.

What I need to look for through research is what steps the VA should do when the examining physician fails during a C&P or does not adhere to §4.42.  I need to find something that shows when the doctor fails, where does the benefit of doubt lay?  With the veteran or the VA?  §4.42 shows a thorough exam is needed, but not what occurs when this does not happen.  

Regardless, first step is my c-file.

I'll find time to upload the decision rating this week.

Cheers! 

 

[Scottish_Knight]

VA Form 20-10206 for my C-File has been sent.  Let's see what this reveals.....when it arrives.

[pacmanx1]

2 hours ago, Scottish_Knight said:

VA Form 20-10206 for my C-File has been sent.  Let's see what this reveals.....when it arrives.

Most forms are fillable online, it is best to download them, fill them out, and make a copy of them and save the form to a thumb drive or a mobile drive just in case the VA says they lost your claim, request or form. I recently requested information, and I uploaded my request and the VA sent me a letter stating they lost my request and when I asked Peggy 1 (800) number how could they lose my request since I uploaded it, all I got was they had to close my request and wait for me to send a new one.

VA Form 20-10206.

 

 

[Scottish_Knight]

Berta, as you requested.  This was 23 pages long.  I deleted a number of the trash and blank pages.  Merely the 'meat' of the decision rating is here.

 

2021 VA DR Hadit.doc