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VA asking questions on injury background. Warranted?

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Scottish_Knight

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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 by Scottish_Knight
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The rating sheet should show, Diagnostic codes between 5310-5312 for GSW foot or leg.

DC 5313 to 5318 are for pelvic girdel and/or thigh- 

The large scar involves the left hip to the left lateral thigh so I assume DC 5313- 5318 would be the code (s) they should have used.

It will take me time to see what else I can find- there are plenty of GSW decisions at the BVA in 1992,

and I also what to see how the VA considered the Muscle Group impairment  involvement of the GSW if that is on the rating sheet.

But a lot will depend on the award decision and that rating sheet,as well.

The award letter evidence and rating sheet will give clues on what the VA did right or what they did wrong in the older non compensable rating.

Muscle Group Impairment and VA's inaccurate assessments of it caused one of the BEST CUE awards I ever saw. Myler V Derwinski.

I have a friend 40% GSW ( he had 2 GSWs on his DD 214) and he claimed for years he did not have PTSD but there was no doubt in my mind that he had PTSD.

A GSW is a stressor

If you feel this incident has caused you any mental health issues by all means file for SC PTSD.

Finally my friend went to see his POA rep and the rep ( I knew him too and he had PTSD) convinced him to file that claim and he was awarded SC for PTSD.

Vets with PTSD don't want to have it and sometimes they have no idea how their personality and behavior is affected by it.

My husband ( Vietnam 65-66) went to the VA to apply for a business loan. He had no plan, no credit, and had just left a fabulous job because he thought he had gone crazy in Vietnam-and his other wife had divorced him due to his anger. The VA had to deny the loan app immediately because there was no plan of action and he didnt now what kind of business he could start.

He asked to see the loan officer in person and an oriental man walked into the room and he had a flashback and tried to choke the enemy.As he waited to be arrested, another Vietnam vet came in the room and they started to talk about Vietnam. My husband revealed a horrific volunteer job he and a few Marines had done in Vietnam. The other said said I have to confess something to you- I am the director of this VA and also a psychologist and I was at the scene you described as it affected many Marines right away-it was horrible and know one would know those details you gave unless they were there.

The director Immediately got a VA rep to file the PTSD claim, and gave the rep his  Buddy Statement as well to attach to the claim.

A few months later the VA award letter came, 30% SC PTSD ( it went up to 100% after he died)

My husband asked the director what PTSD was and the director said where do you live- and told him they had a vet center not far from where he lived and that is where he could out what PTSD is.

I was a VA Vet center volunteer and that is where I met him.

My husband had never shared the flashbacks with anyone before-and had an apartment in DC after his discharge,that he shared with his childhood best friend, a Vietnam combat vet himself, and neither one would even discuss Vietnam.

I saw this in my family as well- my uncle told me Vietnam was a forbidden subject.

His son had been shot in Vietnam, and needed two years of VA hospitalization for it and his daughter in law's brother had been killed there.

Any GSW is a stressor. But that does not mean it always causes PTSD.

I think my reply here is for maybe the hundreds of guests out there we get here every day,-who might have service connectable  PTSD and do not want it. But they should be compensated for it.

This is kind of funny now- not when it happened.

A VA doctor ,after I threatened her,that I would call my congressman, that a miracle had occurred ad they had 

'fixed'their "broken CT scan" in about 10 minutes, and she did not understand what a neuro had told her the scan revealed- that he had a major stroke and other areas of brain damage. She had diagnosed him with an inner ear problem.She came into his room and said "Rod we are preparing you for a transfer for Brain surgery at the Syracuse VA." My husband, who was quite alarmed for a few seconds said Hey thats OK -maybe the surgery could take away Vietnam. I said honey, this doctor is an idiot- and I spoke to the Neuro myself right away.I said ,after he read the CT results to me 'this isn't a brain surgery problem' and he said 'No it isn't -who told you that?'And I said the VA idiot doctor who you read the scan to.

sorry for the rant-

How can a GSW that certainly disabled this vet here, be non -compensable ?????

 

 

 

 

 

 

 

 

 

 

 

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Myler V Derwinski-

This is from a post I made here in 2005:

"In Myler V Derwinski- this might help someone too- the veteran had suffered a clean GSW, appearing to cause very little residual damage.In 1953 the VA found that the gun show wound caused no disability. I have a Nam friend who also had GSW that went right through his arm,left scarring, but he never wanted to file a claim as he felt no disability occurred. But he got a PH.

The CAVC in Myler held that the gun shot went through muscle group XIII and clearly was a disability that required a rating. This was a CUE claim showing that the VA had "failed to assign a disability rating that was required by the undisputed evidence of record". Another way to find VA misapplied their own regs and laws and this became the valid basis of a CUE claim.

 

Berta :lol:"

I wanted to post this here so I don't forget that Myler V Derwinski might be relevant to any potential CUE they made in 2009 in this vet's older decision.

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@Berta, good afternoon.

I don't have a ratings sheet.  When the decision was sent to me it arrived with some old forms and the decision, but no rating sheet with codes.  I am quite organised, so had it been sent, I'd have it.  Odd, that.

On the matter of PTSD.  Easy to say I don't suffer from it.  Could be denial.  Who knows.  This occured at my 13th year in the military.  I was a CID special agent and before I was allowed to return to work, I had to go through various forms of mental health evaluations.  CID did not want me walking around Germany with a loaded gun and mental health issues.  I'm fine and do appreciate your concern and idea on the topic.  It is sad what your husband must have had to endure.  The both of you for that matter.

Yes, this is a CUE matter, I full agree. As you've read, this is far beyond a 0%.  I will continue to say that even a now 50% rating is too low.  But in comparison to 0%, I'll take it.  Now the matter is the next step.  I've been writing to old colleagues to see if they recall me either limping or complaining about leg / hip pain.  If they do, I will ask for an MRF to document such.  I'm only asking for those between 2001 and 2009.   Not sure if that would be considered 'evidence' to the VA.  It's been a donkey's age for these people and they well might not remember.

To be honest and to me personally, it's a common sence matter.  How can one incur such an injury, carry the artefacts I now do, have the resulted leg length difference and end with a 0% disability rating.   Yet, my Tennis Elbow was given 10%!  That to me has been laughable since 2009!

Berta, what are my next steps?  Do we wait until I receive the VA documents at the end of February before I consider my course of action?

Again, thank you for your assistance!


 

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With the doctor in Augsburg, this past October, we did numerous mobility tests, to which he concluded I am severely limited.  I'll need to wait and read exactly what he wrote, but he expressed as much to me."

I am thinking you should apply for TDIU Total Disability due to Unemployability (paid at 100% rate).

That would give you full CRDP payment.

But I am assuming you are not employed and that your SCs, with the new award will be rated at 60% or more

It would help tremendously to see the doctor's letter and the new decision.

The doctor might well be willing to give you an IMO/IME ( hopefully not too costly) that would support a TDIU finding.

I also assume you do not get Social Security Disability- but if so , it would have to be solely for the same VA disabilities, with no NSCs added.

To clarify the TDIU potential:

"Total disability ratings for compensation may be assigned, in circumstances where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a)."

And see this to explain that CRDP and TDIU can be awarded with no offset to the veteran-   full concurrent receipt.
 

Edited by Berta
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@Berta, good afternoon.  No, I am employed.  Self-employed.  Between 2012 and 2018, I worked for two companies here in Germany.  Both were rather physically demanding and took a large toll on me.  A subsequent surgery on my leg/hip in 2017 showed me it was time for a less physical job. 

I need to know where to go from here.  The VA sent their decision in November.  Again, this will take roughly 3 months to arrive.  The VA expect 10 days.  I'm concerned about time limitations.  The VA will expect, I'd assume, that I will wish to counter this and 90 days later, might be too late.

I wanted an appeal to the initial decision.  That was not done.  It was treated like a new claim by the DAV.  It would seem to me I'd want to do an appeal to the BVA.  I have no new evidence to provide.  It sounds rather mundane, but I'd like to express my view on this.  Again, 10% for Tennis Elbow, which was listed as chronic, but my leg not.  Between 2001 and 2009, I was constantly seeing medical experts on the pain in my leg and hip and is documented in my medical file.  That is chronic.  To overlook the artefacts in my leg.  That the femur was destroyed and my leg shortened due to the injury.  Etc.  Someone needs to hear these arguments and consider it.  It has been 100% overlooked or ignored.

Is a BVA hearing the best route? 
Do I have the DAV handle this or someone else?
I've heard mention of the CCK Law Firm in Rhode Island.  Do I involve them?

I feel waiting for the letter from November and the second letter from 15 Jan is going to put me out of the time limitations.

Thank you.

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I think your only option regarding the older denial is a CUE claim or a re open of the older claim under 3.156-not sure- but someone suggested that here and they would know.

"I feel waiting for the letter from November and the second letter from 15 Jan is going to put me out of the time limitations."

You said in this thread:

 

"Now, after my recent email back to them expressing my dissatisfaction with 'no disagreement filed', here is their response:"

And that information should state the time limits for appeals etc etc.on the most recent decision.

We have considerable info here on appeals and this will help:

https://benefits.va.gov/benefits/appeals.asp

 

DAV gave you the info you need to continue the claim you recently got a decision on,if you disagree with anything in th decision.

I suggest that you ask the DAV for a copy of their file on you, as it might contain the rating sheet for the older award. They might even have a copy of the decision you are waiting for.

But not much can be done until you get the newer decision and the January 15th letter -

your C file might have the older rating sheet.Have you ever requested it from the VA?

I am having problems with my PC access to the satellite due to the weather up here.

We have hardly seen the sun for over a month.

I know others here can advise you on the new appeals process because they have used it.

The newest decision will reveal if you need to appeal. And help determine if a CUE claim should be filed on the older decision  ( we would need the 2009 rating sheet however for that.)

 

 

 

 

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