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

[GBArmy]

Scottish-Knight As you know, disability comp is NOT taxed. If we have a claim and use a claims agent or legal rep, they get their fees taken out  automatically. I don't know what FITW is, so need clarification as you are rated at 90% and that may come into play.

[Scottish_Knight]

1 minute ago, GBArmy said:

Scottish-Knight As you know, disability comp is NOT taxed. If we have a claim and use a claims agent or legal rep, they get their fees taken out  automatically. I don't know what FITW is, so need clarification as you are rated at 90% and that may come into play.

Thanks for the response. 

FITW:  Federal Income Tax Withholding.  DFAS took 30% out of the disability retropay as FITW.  This was not for an agent.

[Berta]

This info from DFAS might help:

https://www.dfas.mil/retiredmilitary/manage/taxes/isittaxable/#:~:text=Concurrent Retirement Disability Payments (CRDP,CRDP is also non-taxable.

 

[Scottish_Knight]

On 9/11/2021 at 3:10 PM, Berta said:

This info from DFAS might help:

https://www.dfas.mil/retiredmilitary/manage/taxes/isittaxable/#:~:text=Concurrent Retirement Disability Payments (CRDP,CRDP is also non-taxable.

 

Very helpful, Berta.  Thank you!

 

[Scottish_Knight]

CUE part II.

Last night I slept like rubbish or didn't sleep would be more correct.  So, I sat and read through all three decision ratings and read parts of CFR 38.

I'm going to do another.  §4.42 shall be the basis for this.  The physician and VA really did a right mess on me in 2009.  I should have been given a mental health exam back then and was not which is direct violation of §4.42.  The VA admitted that the physician failed to perform or report various pieces of medical information on me from 2009.  

There is one portion I need some assistance with.  I am hoping one of you might have some insight.  This involves my leg.  Reminder:  There is a rod inside the left femur.  Been there since 2001, surgery from the incident.  It is near on the length of my femur - just above the knee and just below the hip joint.  It is was initially held in place by two lower and two upper screws.  One of the upper screws was broken and subsequently removed in 2017.  One of the lower screws is also broken, but not causing any issue or discomfort.

To the layman and various online medical dictionaries, this is considered a prosthetic.  Not to the VA.  In reading through their glossary, a Prosthetic is considered a replacement foot, leg, eye, hand, etc.  An Orthotic Device is external, i.e., a leg brace.  There is nothing orthopedic-wise that I can find pertaining to an appliance inside the body.  CFR 38 does a proper job defining various types of broken bones and what constitutes various levels of breakage.  But to have a break so bad, a bullet / projectile / missile destroyed it and need be held in place by equipment from the local DIY store (Lowes!) deserves more than a 0% SC.  In order to include that in my CUE I would need to cite something. 

Do any of you highly knowledge folk know of something that might cover this?  This is the one portion of my CUE plan of action that I simply cannot find.

Thanks in advance.

[Scottish_Knight]

CUE II is drafted.  Again, a draft.  It needs some editing.  My concern is it seems weak.  I am open to input, critiques, thoughts... etc.

Thanks in advance.

CUE draft.doc