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]

Good afternoon @Berta, @broncovet, et al.,

To begin with, I contacted the VA today.  I spoke with two very help lads.  I was on the hunt for the Diagnostic Codes from 2009.  Perhaps not in accordance with VA rules, but one of the VA reps did email (encrypted) the 2020 Diagnostic Codes.  The sheet indicates 5313 for the muscle group XIII and 5253 for the femur fracture.  I contacted the VA subsequently and asked again for the 2009 sheet.  It cannot be faxed and I need to ask for it in writing.   Hit and miss.  I emailed the DAV to ascertain if they might have a copy of the old sheet.

I have also spent the past 24 hours reading, reading and reading.  So long as my shop need be closed due to...  something, I don't recall.

Broncovet has a fantastic and helpful write-up from 2015 about what a CUE is and isn't.  More importantly, one has a single chance to make a CUE appeal.  That is a last step.  Cheers, broncovet!

So, where do I go from here?  I have read through 38 CFR.  I have read Myler.  I have read, perhaps too much to the point I have no clue what my next step should be.  It would seem there is little chance of having a chat about the 2009 decision.  The VA's RO carries more weight than one would think possible.

Do I ask for a HLR or NOD?  After 11 years, is it even possible.  Do I ask to appeal to the BVA and a Hearing?  In addition, I understand that I can request an informal phone call to identify specific issues.  Is that true?

I have no new evidence.  Except, and I've no clue if the VA would consider it evidence.  I've contacted old colleagues.  They've offered to write letters stating they've witnessed my limp and complaints of pain in my leg and hip (between 2001 and 2009).  Is that evidence?  Do they carry weight?  I've received two letters thus far and will obtain two more in the coming days.  I could, have 6-8 letters in the coming weeks.

I know I've written this countless of times, but I fail to understand how a service member is shot in the leg, has a rod inserted inside the bone with four screws, leg is shorted by nearly one full inch and is awarded a 0% disability rating, yet Tennis Elbow is given 10%!  It makes absolutely no sence.  In reading 38 CFR, Part 4, I cannot help but feel someone was asleep at the wheel.  Yet, I cannot argue against how the rating was weighed and measured?  Even if I feel it was completely inaccurate.  The physical exam was not thorough.  I was given no mobility tests. 

This has really taken my blood to boil of late. 

The DAV is still willing to assist me, but I'm clueless as to what route to tell them I wish to take.  I don't wish to give up. 

Thoughts?

Thank you.

[Berta]

I replied to that yesterday .

I suggested that you ask them (DAV)to consider a CUE claim,on the 2009 decision  but as I mentioned a lot will depend on the rating sheet. That s where the legal error occurred, if one occurred and they also need to consider 38 CFR 4.6 

They can read the posts here as a quest if they have questions about a potential CUE in your case.

Just give them the link.

https://community.hadit.com/topic/72994-va-asking-questions-on-injury-background-warranted/page/10/

They should be well versed in CUE.

[Berta]

https://www.law.cornell.edu/cfr/text/38/4.6

"§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

Also I am sure they know that CUE is not a "one shot deal"-vet reps used to say that to scare vets out of filing CUE claims.

The BVA denies many CUE claims  but dismisses many of them "without prejudice" meaning, if the CUE is prepared a better way (usually denials are caused when a vet does not properly cite what regulations the VA broke.)the VA will accept the new CUE and the vet might succeed.

And also due to a letter I sent to former Secretary Shulkin they should be aware that a CUE can be filed at any time , even on a decision you received 'yesterday' been there done that with great results.It is here in M21-1MR under a search.

I regret I have no further info I can give you-

We have lots of CUE info in our CUE forum here.

DAV will determine the next step-on the pending claim .... make sure they know of the buddy letters.

Edited January 27, 2021 by Berta

[Scottish_Knight]

2 hours ago, Berta said:

I replied to that yesterday .

I suggested that you ask them (DAV)to consider a CUE claim,on the 2009 decision  but as I mentioned a lot will depend on the rating sheet. That s where the legal error occurred, if one occurred and they also need to consider 38 CFR 4.6 

They can read the posts here as a quest if they have questions about a potential CUE in your case.

Just give them the link.

https://community.hadit.com/topic/72994-va-asking-questions-on-injury-background-warranted/page/10/

They should be well versed in CUE.

No disrespect Berta.  There is an absolute boat load of information and it's rather confusing, especially when one attempts to absorb it all quickly.  My concern was with going through a CUE based appeal route as my next step and skipping others, if it was not in my favour, all is done.  It would seem perhaps not.

I've heard back from the DAV and they were able to locate my 2009 Rating Decision and I have a copy. The Diagnostic Code from 2009 for my leg (only one entry) was 5255.  I've looked briefly at 38 CFR 4.71a.  Since the break to the bone is neither malunion nor nonunion, it would seem it's a done deal.  Correct?

I also discovered this, tonight:

4.56 Muscle Disabilities:

(1) Slight disability of muscles—(i) Type of injury. Simple wound of muscle without debridement or infection.   I think not.
(2) Moderate disability of muscles—(i) Type of injury. Through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection.     Without explosive?  Again, not.
(3) Moderately severe disability of muscles—(i) Type of injury. Through and through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring.   No debridement or prolonged infection.  Not.
(4) Severe disability of muscles—(i) Type of injury. Through and through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring.  Femur was shattered, but no extensive debridement.

The DAV is asking me where I feel the CUE might be.  I need to find a law or regulation the VA failed in.  I believe this is what is driving me mad.  One thing contradicts another. 

Seems to matter little, as the Code used by the VA in 2009 is unmistakeable.

[Berta]

I know- it is OVERWHELMING- sorry -

We were all there at one time-overwhelmed by it all----

https://www.va.gov/vetapp09/files6/0946505.txt

This BVA decision contains the diagnostic codes for GSW-that are different from this:

"The sheet indicates 5313 for the muscle group XIII and 5253 for the femur fracture"

The decision regards a claim that was filed around same time your past claim was filed and used the codes appropriate to that claim by time of the 2009 BVA decision..

 

" Under diagnostic code 5311 a 10 
percent evaluation is warranted for a muscle disability that 
is moderate, a 20 percent evaluation is warranted for a 
muscle disability that is moderately severe, and a 30 percent 
evaluation is warranted for a muscle disability that is 
severe.  38 C.F.R. 
ง 4.73, Diagnostic Code 5311."

I will have to try to find something more applicable to your claim-

The vet above,  get this, was awarded 20% for a self inflicted GSW. It was accidental of course- but I still dont get the"0" they gave you.

In this case they used DC 5255:

"This case was previously before the Board in September 2013, at which time the Board denied a rating in excess of 20 percent for the left femur fracture with three-quarters of an inch shortening.  The Board also denied service connection for a left hip disability, to include as secondary,etc"

 

https://www.va.gov/vetapp14/Files4/1432997.txt

Maybe that will help figure out if they used the wrong DC code, or did use the right DC code but did not apply it properly.

I will try to find something else at BVA.

 

[Scottish_Knight]

12 hours ago, Berta said:

This BVA decision contains the diagnostic codes for GSW-that are different from this:

 but I still dont get the"0" they gave you.

In this case they used DC 5255:

"This case was previously before the Board in September 2013, at which time the Board denied a rating in excess of 20 percent for the left femur fracture with three-quarters of an inch shortening.  The Board also denied service connection for a left hip disability, to include as secondary,etc"

https://www.va.gov/vetapp14/Files4/1432997.txt

 

Not do I Berta, nor do I.

That case is somewhat close.  I too have been researching the Court's opinions in hopes of finding something similar. Nothing so far, but some do come rather close.

I've reviewed again the documents I have and I find this, well, rather interesting.

From the 2009 Decision Rating, 'A noncompensable evaluation is assigned from 1 June, 2009, the day after discharge, because your claim was received in the VA office within one year of discharge.  A noncompensable evaluation is assigned unless there is malunion of the femur with slight knee or hip disability'.

At that time, the DC was 5255 STATUS POST LEFT FEMUR FRACTURE.

The current DC shows 5253.  I find that very interesting.  5255 is for the Femur and 5253 is for the Thigh.  Wh was my Thigh not taken into consideration in 2009?

More interesting is the current sheet has added this:  5313 Gunshot wound, muscle group XIII with residual loss of power and muscle atrophy. 

With that in mind, from the 2009 Rating decision in part....'rarely do you walk with a limp...' and  'The hamstring muscles are smaller than the right....' and....'The hamstring muscles are atrophied.' and ...'secondary left leg shortening of 2.0cm with measurable and visable hamstring muscle atrophy resulting in occasional left side lim and myositis ossificans  involving parts of the adductor muscle group.

Ok.  I'll try and make sence of this (for my own sake).  The 2020 sheet shows a Diagnostic Code of 5313 (40%) for the gunshot wound - muscle group XIII.  When I read the decision paper from 2009, it seems to support the findings 11 years later, but was considered noncompensable at the time.   Am I making sence in that?  I'm awarded a disability in 2020 for what appears to be the same thing from 2009, yet 0% back then and considered noncompensable.  What the doctor wrote in 2009 supports the new DC.

This is maddening!

Thank you for all your help Berta!