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

[broncovet]

Yes, I have thoughts on "higher level claim" aka higher level review, but its controversial:

Dont do HLR.

My reasons are as follows:

1.  HLR does not allow new evidence.  There may be new evidence needed.  Are you certain no new evidence is needed?  Im not, because I have not read your file.  

2.  While it seems like it could save time vs a BVA appeal, in reality, that is rare.  You see, there is a legal concept called "stare decisis".  It basically means to let the decision (from the previous decisionmaker) stand.  Taking the same evidence judge A denied to judge B is unlikely to get a different result.  

3.  Remember, about 80 to 85 percent of VA claimants are denied.  That's not great odds.  However, at the BVA, your chances improve to well above 70 percent.  This means at the VARO you only have about a 20 percent chance of suceeding, but at the board you have about 70 percent chance of getting a remand or a win.  There is no "HLR remand".  Your odds are about 4 times better at the BVA.  Yes, I know BVA appeals take a long time.  There is a reason why that line is so long, and the one at the HLR is short.  Its the same reason that a very long line at a resteraunt probably means you are gonna get great food, but when the place is empty, you should ask why other's dont want to eat there?  Of course, there are exceptions..,,.sometimes you can get into a fantastic resteraunt right away, but not very often on a Friday nite at 7pm.  Try that resteraunt at 4:30 on monday afternoon  and you may get served quickly.  

4.  Make no mistake.  This advice is controversial.  There are Vets who went for the HLR and won.  But my opinion stands, because, if you read the BVA chairmans report, you can see your odds are much better at the BVA.

https://www.bva.va.gov/Chairman_Annual_Rpts.asp

Scroll down around 25 to 30 pages or so to the Statistics page, then look for the page which shows the percentages, which is parsed out on different claims.