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

[Berta]

"Berta, is there anything specific I need to tell the DAV?"

They should consider the recent award and then look over the 2009 decision and write the CUE for you, if they feel it contains a legal error, to your detriment.

They would need to see the older rating sheet and compare the diagnostic codes they used with the established medical evidence VA had at that time.

It would probably  involve a Fenderson Rating.

That type of rating  is searchable here.

The DAV got the same basic training I got on Veterans Benefits from NVLSP.

They would certainly know what a CUE is ( I hope) and of course we have a large CUE forum here.

I have no idea if the VA made a CUE in 2009-

I am basing my opinion on what I see here.

But many CUEs are common sense.

If a veteran receives an SC award on anything the VA had previously denied, as not SC, even if the past rating was "0",obviously the award meant the disability got worse and was in fact service connectable from the the git-go and the "0" might have been incorrect, causing a detrimental past decision.

 

 

Edited January 26, 2021 by Berta
added more

[Berta]

This is a brief assessment of Myler V Derwinski-

I posted a link to the actual case, in this thread th other day:

 

"In 1953, this veteran was entitled, on the basis of evidence then
before the Board, to a rating “of at least moderate degree” (38 C.F.R. 4.17(2) (1945)) of disability for the “through and through” gunshot wound to muscle group XIII. The failure to assign such a rating was a clear and unmistakable error. Moreover, in 1953, as in the present, when there were injuries to more than one muscle group in the same anatomical area, the ratings were not merely combined. Instead, 38 C.F.R. ù 4.16(1) (1945) (currently 38 C.F.R. 4.55(a) (1991)) provided that in the event of injuries to muscle groups in the same anatomical regions “the rating for the major group affected will be elevated from moderate to moderately
severe . . . according to the severity of the aggregate impairment of
function of the extremity.” A moderate degree of disability of both a posterior thigh injury, muscle group XIII, and an anterior thigh injury, muscle group XIV, each was awarded a 10% rating. However, the same schedule provided that the elevation of the rating of the injury to either muscle group from “moderate” to “moderately severe” degree of disability resulted in an award of 30%. Schedule for Rating Disabilities, Diagnostic Code 5313, 5314Next Hit (1945) (currently 38 C.F.R. ù 4.73, Diagnostic Code 5313, 5314 (1991))."
++++++++++++++

https://veteranclaims.net/2009/03/21/myler-vderwinski-no-90-1098-cue-456-472/

The Case ends with this:

"CONCLUSION
In its decision of August 18, 1988, the BVA properly applied the
regulations to the facts of this case and awarded this veteran a
disability rating of 30%. The failure of the rating board to have done
the same thing in its rating of November 24, 1953, was “clear and
unmistakable error”. 38 C.F.R. ù 3.105(a). Therefore, we REVERSE the
BVA decision of June 7, 1990, which upheld the VA’s denial of “clear and
unmistakable error” and we REMAND with instructions that the veteran’s
rating of 30% be given “the same effect as if the . . . decision had been
made on [November 24, 1953].” 38 C.F.R. ù 3.105(a) (1991).
It is so ordered."

A major Victory!!!!!!   Lots of retro $$$.

I am sure the DAV is aware of Myler V. Derwinski.

[Berta]

And it seems the codes they used in Myler should have been coded on the 2009 rating sheet, in your case ,and probably were the same codes.

I filed two or 3 successful CUEs regarding a rating sheet of my dead husband , and the rating sheet was dated 1998- so the VA must have had a rating sheet prepared somewhere and the DAV might be able to access it  in your case, a lot faster than waiting for your C file.

Myler contains legal citations for the regulations VA broke.

I don't see my favorate Regulation there but they ( Myler's lawyer)might have used it as well:

38 CFR 4.6.

 

 

[john999]

Berta, you are such an allstar VA expert. 

[Berta]

So are you John!

I am always glad to see you here.

Here is a recent  example of a veteran with a "0" rating who successfully won a CUE at the BVA.:

https://www.va.gov/vetapp20/files1/a20000148.txt

In part:

"FINDINGS OF FACT 1.The July 2012 rating decision inaccurately applied law and regulation that is undebatable error, and had the RO not committed this error, the outcome would have manifestly changed, thereby granting a 10 percent disability rating for the cervical spine disability, based on the record and law that existed at the time of the July 2012 rating decision.

2. The RO correctly applied law and regulation in the assignment of a non-compensable disability rating for migraine headaches in the July 2012 rating.

3. Given the Board’s finding of CUE in the July 2012 rating decision, which should have granted a 10 percent disability rating for the cervical spine disability, the appeal of an effective date, earlier than October 11, 2016, for a 10 percent rating disability for a cervical spine disability, is moot."

In VA lingo, it seems to be an odd decision.-at first read- due to 3 separate issues-----....I believe the retro went back to 2012 for the cervical spine disability, and it appears a CUE on something was not properly filed- but in any event it shows that even a "0" SC disability rating can be successfully cued.

There are more like this at the BVA but we are getting an ice storm and ice affects my sat dish until it melts-

Nothing is impossible- it just all can take lots of time and work.

 

[Berta]

Unfortunately this '0' SC vet with a GSW did not succeed in his CUE.

https://www.va.gov/vetapp17/files3/1714981.txt

Denials at BVA give as much help as awards do, in understanding CUE.

BVA has consistently said that CUE depends on many factors at time of the CUE,.meaning medical records and all other evidence VA had in their possession.

It is sort of like the Watergate question-

"What did VA know and when did they know it."

The veteran's attorney raised the Muscular involvement regulations as I mentioned here re: Myler V. Derwinski but no muscular involvement was found.

The BVA  denial is correct based on all the evidence of record.

The DAV could possibly shape a CUE for this vet here, based on all evidence of record, as we have limited info here on the established medical and claims record.

 

Edited January 26, 2021 by Berta