Please review my CUE claim

[JKWilliamsSr]

I am in the process of filing a CUE from a 2009 disability claim.  I am almost finished with my document and will post the text of here for opinions.  Before I do this I will lay the ground work for why I am filing a CUE.

I filed for a bilateral foot disability, Bilateral Ankle Pain and Back disability.  I was denied for the foot disability because they stated it was not service connected.   They stated they could not find anything in my records that shows this disability.   I now have a copy of my records and it clearly is in my records.

My ankle disability is secondary to my foot issues.  I added it initially because a friend told me to file every ailment I have that pertain to my lower extremities because they may all tie together (I currently have 20% for degenerative joint disease in my knees).  The VA acknowledged my back issues during service but since there was no definitive diagnosis I could not be granted a rating for it.

So with all of that said.  As soon as I can I will post my statement filing for a CUE.

[JKWilliamsSr]

 Berta if there is one thing I can confirm is the pain cause by flat feet.  I have been told by a couple doctors over the years that the only thing that can be done is inserts.   Well the truth is they really don’t help.  The only thing they do is make it a little longer before the pain kicks in.  It is so bad for me that I no longer walk on the insides of my feet.  I put all my weight on the outside half of my foot (both sides). So I have been “self medicating” for years with OTC inserts.  I buy the Dr. Scholls inserts and couple that with very good running shoes (I don’t run) that are very good support for my feet and gait.  They don’t stop the pain just takes a little longer for it to begin

 

So now I am experiencing serious issues all around.  Foot pain (including heel), ankle pain,  Knee Pain (I have 10% for each knee right now but just got diagnosed with osteoarthritis in each knee), Lower Back Pain and am now experiencing hip pain.

[Berta]

Once you have established service connection for the Pes Planus, you could claim anything else that could be related to it-

As Broncovet suggested, this might take an IMO.

But I think an IME instead , an actual inperson  Exam from a real podiatrist who is willing  to prepare an opinion on 

how the SC when it becomes SC, has caused the other problems. If you succeed on the 3.156 and/or CUE that retro can help because IMOs and IMEs can become quite costly.

I get a full foot exam often every year to see if my orthotics need to be adjusted, or re- made.

I had been paying almost 600 hundred bucks  every year or two for new orthos and then another podiatrist bought the business from my former podiatrist and not only is his  exam and casting procedure much different, they only cost 350 now from a different ortho firm he uses. Flat feet is a chronic disability - I never heard of it being "cured."

It gets worse over time, as it is, causing other problems.

 

 

 

 

[Berta]

To add, amazon.com has a lot of foot care products that can help with heel and foot problems.

The best shoes I ever wore were my daughter's combat boots.

She had an extra brand new pair and gave them to me.They were great for yard work, and then suddenly she called me up and asked for them back. Because 

9-11 had  happened and she was called into the Battle Command Division ( USAF Intel)  and decided ( her 6 year enlistment was almost over)that she would re-up for another year. She needed them back. She is a  highly decorated veteran, and  already  has her 20 year Federal service pin from the DOD.She is only 39 but bought back her 7 years  military time, so that it could be added to her DOD time.

 

 

 

 

[JKWilliamsSr]

8 hours ago, Berta said:

"By citing 3.CFR 3.156 they will either grant the request or deny it by stating the evidence is not new and material.  If they do that then I have a clear CUE because that is an admission of having the records the entire. " Based on the additional evidence you mntioned, in yuour SMRs and on Your discharge certificate,and the Podiatrist's entries ( which are Golden)

I agree-I feel it is a CUE, but I also feel 38.CFR 3.156 wil get this corrected with that evidence.

However we need input from members as to what specific part of 38 CFR 3.156 is applicable here:

https://www.law.cornell.edu/cfr/text/38/3.156

c)Service department records.

"(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided theclaim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:"

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

I guess 38CFR 3.156 C (1) would be the best bet-

But this veteran is correct that this is also a violation of 38 CFR 4.6.

Personally I would file under the 38 3.156 ( c) (i) but I would throw in 38 CFR 4.6 anyhow-because I love  "collateral attacks"!!!!!

But I have more expertise with CUE than 3.156 so we need more input here.

These were not 'newly discovered SMRS, or SMR that wer butnerd in the ST Louis Fire- the VA had them all yet did not apply 38 CFR 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."

VA did not "thoroughly and conscientiously " study the SMRs.

That is a CUE!

So I agree with you JKWilliams, but the fastest way to resolve might be the 38 CFR 3.156 claim.

I have severe pronation in both feet.I am a civilian.Until it got properly treated I had knee pain and backaches every day.

Any type of foot probem such as flat feet ,which I also have, can lead to further disabling  conditions.

Years ago a vet with flat feet Sced at a low rating, got up to 100% because of the damage that had been done to his ankles,knees hipsm and back due to improper treatment.I will try to find that case- BVA- long ago.

Flat feet can get worse in time.And pronation, due tyo flat feet puts a big strain on the ankle as well as everything else.

My podiatrist calls it the 'biomechanical results" of  this disability.

He is also a podiatric surgeon.

 

 

 

 

 

I am going to file it under 38.CFR 3.156 (c) Service Department Records.   This is more than likely the best route to go because I cannot say with absolute certainty they had the records at the time of my claim.  My personal feelings are that they did have them and just overlooked them but "he said, she said" is not the way to go here.

I have a full copy of my SMR's that I received from the VA.  Every page on this record has he statement "Copy made by the VARMC, St. Louis from a record in VA's possession.  While that shows the record is in the VA's record it does not state when they received it though I suspect they had it all along.

Citing 38.CFR 3.156 and 38 CFR 4.6 for lack of a better word forces the VA to acknowledge my claim.  I think it is clear cut and should be reconsidered but then again I thought that way when I originally filed as well.  There are no certainties when it comes to the VA In my humble opinion.