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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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Yes- I am focusing on the hamstring atrophy , too-

The hamstring involves a muscle ( maybe even more then one, and on your 2009 decision , it states it is "visible."

I also realized there are many other diagnostic codes involving gun shot wounds, but -the DAV asked where the legal CUE error is and I believe it was their failure to use DC 5314 that would have considered the Muscular Involvement criteria, as to visible atrophy of the hamstring muscles.

And THANK YOU for being so willing to research this issue'

I use the BVA site a lot, under their decisions link  and it can bring excellent help on many types of claims. 

I will also search the VA General Counsel Pres Op page to see if the OGC has made any precedent decisions on this type of claim.

Even if a CUE would only bring 10%, the retro would go back to the day after your discharge on that older decision.

 

https://www.index.va.gov/search/va/bva.jsp 

this is how you can search BVA decisions, 

About halfway down my right hand scroll- in this long decision,linked below- it states:

"(D) Visible or measurable atrophy. "
  

The decision regards this:

CONCLUSIONS OF LAW

"1.  The criteria for an evaluation in excess of 30 percent 
for the veteran's right thigh shell fragment wound residuals 
including Muscle Group XIV injury and post-operative femoral 
artery repair residuals under the provisions of 38 C.F.R. 
ง 4.71a, Diagnostic Code 5314 have not been met.  38 U.S.C.A. 
ง 1155 (West 1991); Veterans Claims Assistance Act of 2000, 
Pub. L. No. 106-475, ง 4, 114 Stat. 2096, 2098-2099 (2000) 
(to be codified as amended at 38 U.S.C. ง 5107); 38 C.F.R. 
งง 4.10, 4.40, 4.55(a), 4.56, 4.71a, Diagnostic Code 5314 
(2000).  

2.  The criteria for a separate 20 percent evaluation for the 
veteran's post-operative right femoral artery repair 
residuals under the provisions of 38 C.F.R. ง 4.104, 
Diagnostic Code 7111 (1997) have been met.  38 U.S.C.A. 
ง 1155 (West 1991); Veterans Claims Assistance Act of 2000, 
Pub. L. No. 106-475, ง 4, 114 Stat. 2096, 2098-2099 (2000) 
(to be codified as amended at 38 U.S.C. ง 5107); 38 C.F.R. 
ง 4.104, Diagnostic Code 7111 (1997); 38 C.F.R. ง 4.20 
(2000).  

3.  The criteria for a 10 percent evaluation for the 
veteran's left thigh shell fragment wound residuals have been 
met.  38 U.S.C.A. ง 1155 (West 1991); Veterans Claims 
Assistance Act of 2000, Pub. L. No. 106-475, ง 4, 114 Stat. 
2096, 2098-2099 (2000) (to be codified as amended at 
38 U.S.C. ง 5107); 38 C.F.R. งง 4.10, 4.40, 4.56, 4.71a, 
Diagnostic Code 5314 (2000). " 

https://www.va.gov/vetapp01/files02/0115510.txt

 

 

 

Edited by Berta
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I have been erring in my thinking on this-

If the VA did award the CUE at any percentage, they would either deduct it from your Military retiree pay and send you the compensation or you could waive receipt of  the VA compensation and still receive the full military pay.

My neighbor gets 10% SC comp (since 1998)and this is deducted from his military retiree payment monthly.

I regret that I have not been factoring in the fact that you are a Military retiree----I am so sorry------

When did this happen:

The bullet traveled through the femur, so a rod was inserted with two lower and two upper screws"

I think that is on page 6 of this thread.

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I am now thinking that the only way you can get more compensation is if they made an error in the recent award:

"As stated originally, the VA did recognise my gunshot wound as SC, but rated at 0%.  Last year, I was examined by another doctor in Augsburg and had subsequent x-rays in Stuttgart.  This was forwarded to the VA and the gunshot was rated at 40%, I've been informed.  With the additional three injuries / illnesses, I have a total rated disability of 60%.  I was informed that DFAS now does an audit before any payments are made."

I am still thinking the 2009 decision holds a CUE but it would not involve any additional retro and CRDP didnt start until 2013.

I am sorry that I got so confused here- 

Can anyone else here read over this thread to see if they have any input ?

The 60%--- is that 40% GSW residuals, 10% elbow disability, and 10% arrhythmia?

Meaning those 10% disabilities have not gotten worse since 2009???

Have you claimed a higher rating for the elbow or the arrhythmia?

 

 

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Good evening Berta, lots to go through here.  I continue to read CVA and BVA decisions and appeals.  While I've yet to discover a 'similar' decision / opinion, I do find two very curious and consistent things.  One you've mentioned - 5313.  I do have that now, or as of November 2020.  Near on each old decision uses that code.  For some odd reason, in 2009, my injury didn't.  The second and this I find huge, is that in each BVA / CVA decision or opinion, each veteran was given an initial rating from 10% to 80%.  Why oh why, did the RO find my injury to be noncompensable?  When I do a seach in either the BVA or CVA, I'll get two hits for 'noncompensable gunshot wound'.  I find that rather telling.

The gunshot wound happened in 2001.  I believe you asked me.

Between June 2009 (retirement date) and November 2020, I was at 20% disability.  Yes, 10% for the Tennis Elbow (DC 5099-5024) and 10% for Arrhythmia (DC 7011).  Now I have 10% for the post feumr fractur (5253) and 40% for the gunshot wound (5313).  So, I am now 60%.  The DAV only told me of the gunshot wound % and the total %.  They didn't inform me of the fractured femur %. 

Between 2009 and 2020, the VA was taking part of my retiree military pay.  I did receive the 20% disability pay from the VA each month as well.  If I should succeed in a CUE, would back pay still be deducted from my military pay?  Hypothetically, let's say I win the CUE and it is remanded and I'm given 40% for the gunshot wound alone going back to June 2009.  I would not be entitled to retro?  I do understand that CRDP did not go into effect until 2013, but it would seem the VA failed in recognising the injury properly in 2009.  Or am I mixing apples with oranges?

No, I have not claimed higher for the elbow or heart.

Thank you.

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"  If I should succeed in a CUE, would back pay still be deducted from my military pay?  Hypothetically, let's say I win the CUE and it is remanded and I'm given 40% for the gunshot wound alone going back to June 2009.  "

The way I am thinking, and with my neighbor's experience a CUE would not garner any additional money as compensation.

I feel terrible that I kept forgetting the retiree pay factor- even if they awarded 50% GSW under a CUE there was no CRDP benefit in 2009.

We have some retirees here- I hope they chime in.

If you claim a higher rating for the arrhythmia, that would add compensation under CRDP-

I hope it has not gotten worse,and I assume you have had annual check ups that would reveal any change in that disability.

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Good morning, doing more research last night, I discovered something rather interesting.  Since 1992, the BVA has made 1,297,220 decisions.  This according to their website.  Of that number, 22,056 involved gunshot wounds.  Of the original number, only 2 involved noncompensable gunshot wounds.  In both of those not one argued (be it NOD or CUE) a reverse of the noncompensable rating, but increase for, non-related, matters.  So, all 22,056 gunshot wounded veterans (minus 2) were awarded an initial disability rating.

That is non-debatable.  One criteria for a CUE?  Perhaps.

The US Court for VAC website is a harder nut to crack.  I've no clue how many cases they've heard over the years.  Searching for 'noncompensable gunshot' returns 91 decisions / opinions.  The facts vary in each.  I've read through a huge number of those.  I cannot find a single court case wherein a gunshot wound (short of superficial) was given a noncompensable rating for such an injury.

If feel this above should be given to the DAV to see what they can determine.  They have more experience than I do.

Now, on to the CRDP and retro pay.  I also read this last night:   https://www.dfas.mil/retiredmilitary/disability/crdp/

'Your retroactive payment date may go as far back as January 1, 2004, but can be limited based on:

*your retirement date or

*when you first increased to at least 50 percent disability rating'

Berta, your neighbour is 10% SC, so not eligible for CRDP.  Between 2009 and 2020, I was 20%.  If the VCA and RO decide that I should have been award a 40% rating for the gunshot wound in 2009, it would put me at 50% and I believe retroactive pay to 2009.  Perhaps only as far back as 2014.  I don't know.  It would be a matter for DFAS.  How do you see this?

More importantly, is that I am properly rated for the disability.  Yes, a matter of principle.  What I've found thus far is that any gunshot wound is a compensable disability.  Yes, there have been some that were superficial and the scar alone was not worthy of a disability rating.  But I have yet to find one case (BVA or VCA) where a gunshot wound, in which the bullet entered a veteran, causing damage, and was rated as noncompensable.  

Thank you.

Edited by Scottish_Knight
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