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]

" 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?"

I agree but that would involve proving a violation of 38 CFR 4.6.

Meaning that the established medical evidence, that VA had ,at time of the 2009 decision, warranted a 40% rating.

And that they did not consider the medical evidence  properly.

The C & P exam controlled the  way they decided the 2009 claim.

Perhaps there was an error in the translation ,if the exam was prepared in German and then translated for the VA.

This is significant:

"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%."

 

 

 

[Berta]

" 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?"

I agree but that would involve proving a violation of 38 CFR 4.6.

Meaning that the established medical evidence, that VA had ,at time of the 2009 decision, warranted a 40% rating.

And that they did not consider the medical evidence  properly.

The C & P exam controlled the  way they decided the 2009 claim.

Perhaps there was an error in the translation ,if the exam was prepared in German and then translated for the VA.

This is significant  info:

"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%."

"  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."

I wonder if the VA actually had those records from the civilian hospital and the MEDDAC.. as they certainly prove these were ratable residuals.

 

 

[Berta]

Also I assume the inservice rod surgery involved a scar- and that possible could have been ratable 

[Scottish_Knight]

@Berta, you've raised a very interesting point.  I don't believe the VA had the records from the Regensburg University Hospital back in 2009.  Now, I could be incorrect in that, but I think not.  Last year, either the DAV or the VA had me prepare a sign a document pertaining to obtaining the records from the Regenburg Hospital.  There is nothing in my copy of the medical records from that Hospital other than a discharge sheet.  In addition, there is nothing from the Wuerzburg MEDDAC other than a form mentioning physical therapy. 

Correct me if I am wrong, but that wold be considered 'new evidence'.  No?

As far as the MEDDAC records are concerned, those would be long gone.  When I retired in 2009, the Wuerzburg MEDDAC was long gone.  I believe they were moth-balled in 2005 or 2006, perhaps earlier.  Not sure. 

Tonight, I will finish my write up to the DAV and add the Regensburg records issue.  I think I have enough to get started.  I will also add to the DAV to communicate with me.  By that I mean to review it and offer an honest opinion.  Need I research more?  Is this enough for a CUE?  Etc.

Thank you!

[Berta]

I do not see on the pdf of the 2009 decision, any mention of the Civilian hospital or MEDDAC.

They mention your STRs but I do not now i those records were even in your STRs- if so- (they should have been) and iff VA ignored them ,that is aviolation of 38 CFR  4.6 (CUE).

They do state as evidence the exam in Germany:

"unremarkable, but large  surgical scar extending from the lateral left hip area to the lateral thigh.Do you have a copy of your STRS and are the civilian hospital records in those STRs?

Did you , on your original 21-526, tell the VA this:

 "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.  "

I am going to ask for input here from others----

 

 

 

[Berta]

We were on line at the same time- I just read your recent post and 

said YIPPEE!!!!!!!!!

Because since the DAV had you sign an authorization form for those records- and then if the VA failed to obtain them, that is a big CUE!!!!!!!violations of 38 CFR 4.6 .

I had a simiar situation with my husband's SSDI records- the VA said SSA refused o release them ( that was a lie) the VA never sent them his signed authorization for and it was not in hi med recs, but in his C file- Hopefully the DAV has a copy of what they sent.!!!!!!!!!

I reversed that situation not with a CUE, as far s I recall,  but by raising Hell with my VARO.