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Help needed- Where do I go from here?


Marineleo

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I am absolutely dumbfounded by the VA's inability to read !  My husband filed a disability claim for the removal of 1/3 of his Intestine (and the large painful residual scar) that was done WHILE ACTIVE DUTY. (The resection was specifically filed as 38 CFR § 4.114 - Schedule of ratings -digestive system.   7329 - Intestine, large, resection of:  With symptoms, objectively supported by examination findings). They denied it, so we added supplemental information which included copies of his Service Treatment Records (Attached) that clearly show they did a Hemicolectomy, AKA Resection of Large Intestine.  We later submitted an Independent Medical Opinion from his primary care Dr that stated that he has ongoing symptoms and that these symptoms were "more likely than not" a result of the resection of his large intestine which occurred in service and also submitted color photographs of the very large abdominal scar with and without scale.  They denied it again so we filed a CUE. They finally after 2 years sent him for a C & P exam at which he handed the examiner his service treatment records.  She wrote that she thought he "may have had a resection of his SMALL intestine" (which is a totally different procedure name than the Hemicolectomy cited in his operative report).  They also requested a medical opinion from another one of their own Dr's who wrote "It appears the Veteran had surgery in 1982 prior to enlistment".  Wait, What??!! Nope, He never had any kind of surgery before enlisting in 1984- as evidenced on his enlistment physical records.  She also stated that "There is no evidence in the Veteran's Service treatment records consistent with any intestinal issues or a partial colectomy".  And now they've denied it AGAIN !

The denial letter reads; Service Connection for Intestinal Bleed & Colon removal, claimed as Resection of Large intestine is denied since this condition neither occurred in nor was caused by service.  

Your service treatment records do not contain complaints, treatment, or diagnosis for this condition.  

We did not find any link between your medical condition and military service.

Your VA Medical Opinion stated the claimed condition was likely than not (less than 50 % probability) incurred in or caused by the claimed in service injury, event, or illness.  All of your medical records were reviewed. There is no evidence of any intestinal issue that would lead to surgery during active service.

The VA exam conducted on April 12, 2019 diagnosed you with resection of the small intestine, GI bleeding with Polyps.  

Service Connection for Scarring, residuals of Resection of Large intestine is denied since this condition neither occurred in nor was caused by service.  

Your service treatment records do not contain complaints, treatment, or diagnosis for this condition.  

We did not find any link between your medical condition and military service.

The VA exam conducted on April 12, 2019 for scars and disfigurement diagnosed a linear scar on midline abdomen, residual of partial colectomy.  

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In the evidence listed that they considered is his service treatment records, the DBQ, THEIR Dr's medical opinion, but conveniently did not consider the CUE letter (with attachments) we filed, the IMO from his primary care Dr, or the photographs we submitted of the scar.

So we filed another CUE and a request for a higher level review.  My question is what else can we possibly do?  The VSO straight up told us to hire an attorney but it seems ridiculous to give them the $ when the information is right there in black & white IN HIS SERVICE TREATMENT RECORDS!!!   Anyone have any suggestions at all?   I was thinking about going to the VARO (Bay Pines) and submitting information on nearby literacy classes for them since they clearly can't read??

*See attached service records- (Identifying info redacted- the copies we gave the VA weren't)

 

Service Records Redacted and Highlighted .pdf

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We'll, it looks to me that it occured in service, the surgery anyway.  Something doesn't add up, that's for sure.  Did your man join when he was 17 years old?  Just curious by reading dates.

If you keep getting denied, you might want to consider a lawyer.  80% of something is better than 100% of nothing, everyday.  

Have you used a service organization or rep?, and what do they say?

Something is amiss.

Hamslice

 

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That's all he filed for was the actual surgery/ resection and the question is HOW/ WHY can they deny it when we've literally even given them copies of the service records and they say there are no records showing this?!!  Yes, he was 17 at enlistment, turned 18 in boot camp.  

The VSO (FDVA) said hire an attorney.  We talked to several and everyone wants to try and make it a TDIU case because he already has 70% for another condition but he is still working.  I get that 80% is better than nothing but it seems like such B.S when it's literally right there in black and white.  

Wish there was a way to get even 5 minutes with a rating officer to hand them those records and ask them to explain how they feel there is no documentation that this happened!

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49 minutes ago, Marineleo said:

I am absolutely dumbfounded by the VA's inability to read !  My husband filed a disability claim for the removal of 1/3 of his Intestine (and the large painful residual scar) that was done WHILE ACTIVE DUTY. (The resection was specifically filed as 38 CFR § 4.114 - Schedule of ratings -digestive system.   7329 - Intestine, large, resection of:  With symptoms, objectively supported by examination findings). They denied it, so we added supplemental information which included copies of his Service Treatment Records (Attached) that clearly show they did a Hemicolectomy, AKA Resection of Large Intestine.  We later submitted an Independent Medical Opinion from his primary care Dr that stated that he has ongoing symptoms and that these symptoms were "more likely than not" a result of the resection of his large intestine which occurred in service and also submitted color photographs of the very large abdominal scar with and without scale.  They denied it again so we filed a CUE. They finally after 2 years sent him for a C & P exam at which he handed the examiner his service treatment records.  She wrote that she thought he "may have had a resection of his SMALL intestine" (which is a totally different procedure name than the Hemicolectomy cited in his operative report).  They also requested a medical opinion from another one of their own Dr's who wrote "It appears the Veteran had surgery in 1982 prior to enlistment".  Wait, What??!! Nope, He never had any kind of surgery before enlisting in 1984- as evidenced on his enlistment physical records.  She also stated that "There is no evidence in the Veteran's Service treatment records consistent with any intestinal issues or a partial colectomy".  And now they've denied it AGAIN !

The denial letter reads; Service Connection for Intestinal Bleed & Colon removal, claimed as Resection of Large intestine is denied since this condition neither occurred in nor was caused by service.  

Your service treatment records do not contain complaints, treatment, or diagnosis for this condition.  

We did not find any link between your medical condition and military service.

Your VA Medical Opinion stated the claimed condition was likely than not (less than 50 % probability) incurred in or caused by the claimed in service injury, event, or illness.  All of your medical records were reviewed. There is no evidence of any intestinal issue that would lead to surgery during active service.

The VA exam conducted on April 12, 2019 diagnosed you with resection of the small intestine, GI bleeding with Polyps.  

Service Connection for Scarring, residuals of Resection of Large intestine is denied since this condition neither occurred in nor was caused by service.  

Your service treatment records do not contain complaints, treatment, or diagnosis for this condition.  

We did not find any link between your medical condition and military service.

The VA exam conducted on April 12, 2019 for scars and disfigurement diagnosed a linear scar on midline abdomen, residual of partial colectomy.  

-------------

In the evidence listed that they considered is his service treatment records, the DBQ, THEIR Dr's medical opinion, but conveniently did not consider the CUE letter (with attachments) we filed, the IMO from his primary care Dr, or the photographs we submitted of the scar.

So we filed another CUE and a request for a higher level review.  My question is what else can we possibly do?  The VSO straight up told us to hire an attorney but it seems ridiculous to give them the $ when the information is right there in black & white IN HIS SERVICE TREATMENT RECORDS!!!   Anyone have any suggestions at all?   I was thinking about going to the VARO (Bay Pines) and submitting information on nearby literacy classes for them since they clearly can't read??

*See attached service records- (Identifying info redacted- the copies we gave the VA weren't)

 

Service Records Redacted and Highlighted .pdf 16.53 MB · 2 downloads

Your anger and frustration is understandable, but turn that into righteous rage. It appears your husband is going to require a veteran's lawyer for an obvious appeal. 

I hired Chisholm and Chisholm law firm and I'm not going to pay anything upfront, unless my claim is granted. Hill and Ponton is another law firm that deals alot with veteran's appeals. Chris Attig law firm, as well.

#1. The presumption of soundness was not properly applied to this claim. Clearly and Unmistakably the record shows he went in healthy and was discharged with a bowel problem.

#2. The VBA blatantly lied that the condition was not incurred or caused by military service.

#3. The C&P examiner's credentials must be challenged. Was the examiner a GI specialist? A General practice Dr? A Physician's Assistant? Nurse Practitioner? The unfavorable nexus of opinion by the examiner and the favorable nexus of opinion from his Dr. is equipoise, meaning there is a tie in the nexus of opinions. A tie must go to the veteran.

You and your husband have every right to be upset, but the VA is going to fight tooth and nail. No matter how angry you are. Higher level Review might not get this claim granted at the Regional Office. It might have to end up at the BVA or even the CAVC for it to be granted.

To me, this claim was denied; just to be denied out of malicious intent. That's just my point of view.

 

I'm having a similar experience with my flat foot claim from 2007. But, I'm not going to give up on it. I suggest y'all don't give up either. There's work to be done. 

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19 minutes ago, Marineleo said:

That's all he filed for was the actual surgery/ resection and the question is HOW/ WHY can they deny it when we've literally even given them copies of the service records and they say there are no records showing this?!!  Yes, he was 17 at enlistment, turned 18 in boot camp.  

The VSO (FDVA) said hire an attorney.  We talked to several and everyone wants to try and make it a TDIU case because he already has 70% for another condition but he is still working.  I get that 80% is better than nothing but it seems like such B.S when it's literally right there in black and white.  

Wish there was a way to get even 5 minutes with a rating officer to hand them those records and ask them to explain how they feel there is no documentation that this happened!

That would be awesome. I have some choice words for the raters that have committed an injustice to my claim over the past 12 years. Sheesh.

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"I am absolutely dumbfounded by the VA's inability to read !"

After 20 plus years dealing with my VARO, that was the prime problem I had with them- over and over again-

Can you scan and attach their most recent  denial, as to their rationale , and also the evidence list they used?

I considered sending my RO copies of "Reading for Dummys", and thought about attaching my IMOs they refused to read to the inside cover of a few Pizzas for the rating board. Then I thought maybe I could get rolls of toilet paper for their bathrooms printed with my IMOs on them.

What I did do was fight back aggressively- and CUE sure helped me and even my daughter's first and only VA claim.

They should be rating the scar as well as any ratable residuals from the surgery- 

 

CAn you also attach the last CUE you sent them? Cover you C file #, name, prior to scanning it.

One of my CUES ( I have had many- all awarded , but with 3 more in process,now)fil ed long ago was never addressed at all by my RO, until I re-opened my claim, and they had to contact the VA Regional Counsel to verify my FTCA stuff. 

Regional Counsel read through my entire C file, found the CUE and my evidence for it, and cued them himself and ordered them to pay me.

I also deal with a RO director who does not know VA case law.She tried twice by phone to get me to accept something that was absolutely ridiculous. I cued that decision as well. 

My pending CUEs are all on award letters.

If we can see their decisions and the evidence list they used , we can help more.

 

Something is drastically wrong here and it might well all boil down to the illiteracy many of us have  had to face with ROs. 

 

 

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Doc is right as for taking it to the next level of the BVA.  The BVA has their stuff more in line than a local RO who can't read.  I had an RO try to just get rid of me by giving me some BS rating under the wrong coding.  It took the BVA to say this is not correct and then told RO how to rate my condition and now looks like 60% instead of 10%.  The RO typically is there to just push it through and get rid of it.  I am guessing the RO did not read the entire file as this is very blatantly there and in service.  

Also Berta brings up a good point to post the denial as they can hide things in there.  

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No the VA cannot read.  I had the VA violating CFR's when my case was at the RO.  Yes they were not following the regulations they made.  The BVA straightened this out for me.  I hired a lawyer because I had to.  It is up to you to hire a lawyer or not but you have some rock hard evidence beautifully annotated.  If you go through the NCOA, VFW, or other service organizations they may have a representative at Washington that can present your case to the BVA.  A great gentleman who is now deceased represented me for the NCOA so there we no fees when I won an appeal in 1991.

The BVA is much more receptive to medical evidence and can read.  Maybe you can appeal directly to the BVA with a service organization.  

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Should we wait and see if we get any response to the "higher level review" under the new appeals program first or just tell them to disregard that and skip straight to the BVA?  Do you have to have an attorney for the BVA appeal or do you think we could win since this is a pretty straight forward case and we have all the records?

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If you have an HLR pending let it conclude.  No, you do not need an attorney but I suggest if you go without you have a service organization with a representative at the BVA to handle your claim for you.

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I agree to wait  out the HLR, since there is also another CUE pending.

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Attached is the CUE  (with the annotated/ highlighted service records as the attachments) and a copy of the decision letter.  I've read it over multiple times and don't see anything that stands out to me other than it seems kind of odd that 90% of the "evidence" listed is documents that were previously filed for his (already granted/ service connected) PTSD.  Would this normally just stay in the evidence list even though it has nothing to do with this claim?  

CUE 4-27-19 , REDACTED.pdf Decision 4-27-19.pdf

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That decision is an OUTRAGE!

But- the CUE has to definitely be shortened.

You used the wrong citation. This is a VARO decision, as far as I can tell .

Use 38 USC 5109(a)

https://www.law.cornell.edu/uscode/text/38/5109A

The citation you used, 38 U.S.C. § 7111(a) , is for a CUE made by the BVA.

" Would this normally just stay in the evidence list even though it has nothing to do with this claim?"

Yes, my Nehmer decision had 3 or 4 pages of my evidence over the years regarding other issues.

It was the first time the VA acknowledged my husband's 2 separate SSDI awards, on soley for his 1151 stroke, and then upon Reconsideration ( I found SSA had broken one of their own laws), they awarded a different SSDI award solely for his SC PTSD with a very favorable EED.

I dont jump on the 'get a lawyer' mantra too fast. A lawyer refused to help us with the SSDI reconsideration.

I called him up 3 months after we met with him to tell him he lost $4,500 -what his fee would have been if he had helped us. We talked for about an hour and he said he would never review a PTSD SSDI case the same as he had done in the past. About 20 lawyers would not help me file a FTCA case- Thats ok -I won anyhow- wrongful death.

I can reduce this CUE for you- it is, in my opinion, a  BEAUTY!!!!!!!!!! It is a Prime Facie CUE!!!!!!!!!!

However, I am extremely busy this week, and  next week ,with another major veteran's issue- for ALL vets in the VA health care system----

My time here is very limited.

BUT by  now others here should have a good handle on CUE-

I didnt read the 20 pages-yet - I saw the main 2 CUEs right away,  and you are RIGHT!!!!!!and with a  CUE filed on a new decision this should be handled fast by the VARO.( I assume this is a VARO decision and the CUE should be filed as attention to and then put the alpha part of the numeric on the cover letter. That alpha identifies the incompetent rater who really screwed this up-

It is time for others here on a daily basis like me for Years  to take a shot at these CUE posts........

I wont be here forever- everything they need to know is in our CUE forum, 

and this is an easy CUE........you did a very good job, but it is too long- I can understand that-

every CUE I ever filed for myself, was first written out of anger,in the past-

but now I cant wait for them to screw up my pending claims so I can file CUE again!!! and point out to them how deficient and stupid some of these raters truly are.

One of the M21-1MR changes I asked former Sec Shulkin to change ( and he did) involves potential CUE being sought in every HL decision.I sure would not wait for the VA to find one.But the regulations I changed has already helped at least 3 veterans here.The new M21-1MR change on that is here at hadit somewhere, I posted it. It is one reason why a claim goes back and forth a lot at ebenefits.

I will be checking in here during the day when I can...I want to make sure others who have been here for years like I have been, are finally getting to understand what a CUE is and will address the downloads.

I plan on taking a long vacation soon, to work on other serious VA  issues that will impact on all veterans and their survivors.

Some of you other vets who are willing to look over this post and the CUE forum, and opine on the CUE-from MarineLeo ,  might suddenly learn that you might have had CUEs in past decisions, to your detriment.

That is why our Motto is "Knowledge is Power."

Indeed!

This CUE is a BEAUTY! And an Easy one, and well written except these people at the ROs do not like to read-and it can be shortened.

so -others-please take a shot at it-

and then I will return .

 

 

 

 

 

 

 

Edited by Berta
added more (see edit history)
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17 minutes ago, Berta said:

That decision is an OUTRAGE!

But- the CUE has to definitely be shortened.

You used the wrong citation. This is a VARO decision, as far as I can tell .

Use 38 USC 5109(a)

https://www.law.cornell.edu/uscode/text/38/5109A

The citation you used, 38 U.S.C. § 7111(a) , is for a CUE made by the BVA.

" Would this normally just stay in the evidence list even though it has nothing to do with this claim?"

Yes, my Nehmer decision had 3 or 4 pages of my evidence over the years regarding other issues.

It was the first time the VA acknowledged my husband's 2 separate SSDI awards, on soley for his 1151 stroke, and then upon Reconsideration ( I found SSA had broken one of their own laws), they awarded a different SSDI award solely for his SC PTSD with a very favorable EED.

I dont jump on the 'get a lawyer' mantra too fast. A lawyer refused to help us with the SSDI reconsideration.

I called him up 3 months after we met with him to tell him he lost $4,500 -what his fee would have been if he had helped us. We talked for about an hour and he said he would never review a PTSD SSDI case the same as he had done in the past. About 20 lawyers would not help me file a FTCA case- Thats ok -I won anyhow- wrongful death.

I can reduce this CUE for you- it is, in my opinion, a  BEAUTY!!!!!!!!!! It is a Prime Facie CUE!!!!!!!!!!

However, I am extremely busy this week, and  next week ,with another major veteran's issue- for ALL vets in the VA health care system----

My time here is very limited.

BUT by  now others here should have a good handle on CUE-

I didnt read the 20 pages-yet - I saw the main 2 CUEs right away,  and you are RIGHT!!!!!!and with a  CUE filed on a new decision this should be handled fast by the VARO.( I assume this is a VARO decision and the CUE should be filed as attention to and then put the alpha part of the numeric on the cover letter. That alpha identifies the incompetent rater who really screwed this up-

It is time for others here on a daily basis like me for Years  to take a shot at these CUE posts........

I wont be here forever- everything they need to know is in our CUE forum, 

and this is an easy CUE........you did a very good job, but it is too long- I can understand that-

every CUE I ever filed for myself, was first written out of anger,in the past-

but now I cant wait for them to screw up my pending claims so I can file CUE again!!! and point out to them how deficient and stupid some of these raters truly are.

One of the M21-1MR changes I asked former Sec Shulkin to change ( and he did) involves CUE being sort in every HL decision.I sure would not wait for the VA to find one.But the regulations I changed has already helped at least 3 veterans here.

I will be checking in here during the day when I can...I want to make sure others who have been here for years like I have been, are finally getting to understand what a CUE is and will address the downloads.

I plan on taking a long vacation soon, to work on other serious VA  issues that will impact on all veterans and their survivors.

Some of you other vets who are willing to look over this post and the CUE forum, and opine on the CUE-from MarineLeo ,  might suddenly learn that you might have had CUEs in past decisions, to your detriment.

That is why our Motto is "Knowledge is Power."

Indeed!

This CUE is a BEAUTY! And an Easy one, and well written except these people at the ROs do not like to read-and it can be shortened.

so -others-please take a shot at it-

and then I will return .

 

 

 

 

 

 

 

If one of the higher ups here would like to take this on I would like to follow along the see how this is done, so I can help do this in the future.

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That is the idea

-members here also have to get up to speed on DIC and accrued.And on Agent Orange if Nehmer kicks in to Blue Water Navy-and on any potential new presumptives the Secretary may or may not add by end of June or July.

To correct something I stated- the attachments were not part of the pdf.I thought they were part of the CUE at first-They are copies of the Evidence that VA failed to consider . 

The CUE is only 2 pages, easy as pie to opine on- but can be reduced.

It will catch their attention enough to read the evidence.It does have to be changed a little-

And I commend MarineLeo for doing a superb job,, with , as far as I know, no past experience with CUE-because 

this vet already knows more about CUE than Most of the so called Vet reps, VSO, NSOs, out there.

But the VA will seek one legal error the claimant could make-like the wrong CUE regs citation, and then they would deny it . 

There is a lot of good help here but sometimes it doesn't go deeper into the actual questions and the information the poster actually needs.

The member who chastized me for confusing others by giving too much information has apparently not returned.

We are supposed to be advocates, and that means we MUST be much smarter than the VA, and know the regulations they use against us and be willing to go,sometimes, the whole nine yards with many of these questions.

When my Army husband died, my baby was still in diapers and I did not have a clue when I filed a claim.

The VVA NSO (I was one of their first associate members- VVA ) treated me like I had no right to even take up his time.

Now I know I had what could have been a potentially good  DIC claim, but in those days no internet at all, and no VCAA, etc. When I volunteered at the vet center in 1983 ( MY VA ID card says 1984 because they had to do a background check that took time) then I started to understand the claims process. a start-and I learned a lot more with contacts with NVLSP and also by puchasing the annual VBM, since 1991, their first publication.

When my Marine husband died, I knew what to do, but it was still a battle because of the wrongful death claim.

And  I certainly do not know it all.....but my concern is often for the spouses of all of you here because I know how VA will try to walk all over them, if they do not have solid advice, if they file for DIC and /or accrued,  when they might find they are in the devastating position of  suddenly  becoming a surviving spouse.

And they might get a piss poor vet rep or VSO,who acts like they are as omniscient as God almighty but they might have no knowledge at all on DIC or accrued.

 

 

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MarineLeo- I have made very few changes to your Fantastic CUE and this CUE should be used as a template here in the future-

but I hope you do not mind if I wait for others to chime in on the CUE in your downloads.....they might see something I dont- BUT I believe it is perfect-

I did change it to the first person- and re-arranged my favorite reg. ( 38 CFR 4.6) to be at the beginning of it-

and NICE touch!!!!  Reonal V. Brown 5 Vet App 458,461 1993

That will bite them in the ass!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

I made very minimal changes to it, and cannot thank you enough for doing the legal leg work you needed to make this Perfect!

of course you can add more to it when I post it, if you wish-

Make sure you list as Exhibits, before you sign it , each document you attach to it-and I always put my Exhibit stickers on each doc as well, or sometimes I use yard sale stickers, and I add my c file # to each enclosure if it is not on it, and also I use those address labels I get from vets orgs I give small donations to-

for every thing I send to them, and I also use USPS with tracking slip, because I do not have any trust left that they would receive it without having a proof that I mailed it.

I need to put the CUE down for a bit- then go back and read it again-to see if there is anything else I could do to enhance it, but YOU did a Fabulous JOB!!!!!!!!!!!!!!!!!!!!!!!!!!! 

Others will chime in as well----- I hope- because this is the last CUE question I can answer here-

I am preparing a bill about those unconscionable C & P exams, and have a NY Congressman, to call ,to see if he will support it ( he has a bill already on C & Ps but it is nothing that will stop this problem and provide  what veterans deserve....

they deserve proper C & Ps done by someone who has some expertise in the claim and can read their med recs, and STRs if needed....( VA is paying these contractors who employ them to make sure the exam, most of the time,  will deny the claim.I have plenty of GAO reports that have said the same thing for years and NOTHING has been done- Bills take a lot of legal work,lots of reading etc etc......

and being a widow, with a home and farm issues, and church obligations, I can only do so much here.

 

 

 

.

 

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Berta (and all the others who have responded with lots of good comments and suggestions!)

     Thank you for all your helpful insight and time!  I have spent so many hours researching and writing and submitting things to the VA I feel like it's a second full time job!  (It took us 2 1/2 years to get his PTSD service connected- 70%) and I've reached the conclusion that they just deny things for the sake of denial in the hopes that people will either give up or die while they're waiting.  The VA is an absolute joke of a system and it's appalling that they treat veterans the way that they do.  (On a side note- any Seal team fans out there besides us wondering if CBS having the courage to call out the VA on a national TV show will light a fire under anyone in D.C. to do anything?)  I told my husband that when I retire I'm going to spend my days camped out at the closest VARO so I can help other Vets who are just getting started on their claims and have no clue what they're walking into.  

I was kind of confused on the 38 USC 5109(a) because of the language referring to appealing to the Secretary so I thought that was only for CAVC decisions and yes this is just a VARO decision.  

On the attachments with the CUE (the 18 pages of Service Treatment Records I shared at the beginning of this post) I wrote the name and file # at the top of each page and labeled them as attachments p. # of # at the bottom of each page.  I was going to fax it to Janesville using fax by email because this generates an immediate auto receipt with the number of pages submitted and verification that they received it (and also gives me a verifiable paper trail so they can't say, Well yes we got an envelope from you but No we didn't see that document inside.)

I wasn't sure about the first person vs using "the Veteran" (I guess I've spent too many hours reading the BVA and CAVC decisions and had the third person language stuck in my head!)

Any thoughts on getting another IMO from a Gastroenterologist to add to this in the form of "reopening with new and material evidence"?  I feel like if we already have the CUE and the Higher level Review going it might be "too much" or too confusing if we do that.  I also wasn't sure if that would even make a difference since their "argument" isn't that there's not a connection between symptoms and surgery but rather that they can't "find" any record in his STRs that the surgery even took place?

Thank you again everyone for all your help!

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I was not sure whether you were the veteran or not-

It is best that the CUE is written, as if by him- I used "the veteran "many times,in many of my claims, but that is because "the veteran", my husband,   died due to VA health care and could not speak for himself.

If the IMO you have now, that they failed to even consider, is written in a way that cnforms to the IMO/IME criteria here at hadit- as to giving a full medical rationale, etc based on all of his records, and contains the "as likely as not" statement, ithere should certainly be no need for an aditional IMO/IME- but you said:

"and I've reached the conclusion that they just deny things for the sake of denial in the hopes that people will either give up or die while they're waiting." That is a true fact.

I think it could even be  part of the high suicide rates for veterans.

A few of my CUEs filed as soon as I got th decision were awarded in mere weeks, Two hoever took many years sitting at my VARO filed 2003 nd 2004, then a Miracle happened- AO IHD Nehmer-

Since my claim still had not been transferred to the BVA, and by Nehmer 2010 7 years had passed I reqwuested that they address those two CUEs first and they also were impacting on the proper AO IHD award.

The Nehmer VARO awarded them, in 2012, along iwith the IHD award.

This is why vets should react ASAP when they get a decision containing CUE.

Those CUES were in my 1151 aDic award of 1998 but the former state rep I had questioned,what I questioned- the lack of SMC but he said do not NOD it because 1151s are different than regular claims.

He was completely wrong.He was real happy to get this award- he had been my POA for only a few weeks as I dropped my DAV POA and thought he would be smarter than the DAV- He had no input at all into the work I did for the claim. And obviously wanted to brag about 'his 'Win and get me out of the office.

We are set for a major thunderstorm and that means my PC will act up- here is the CUE I prepared-it only minimally changes the one you wrote:

 

To VARO (send to the Evidence Intake Center) date

 

Address Attention to: (alpha code from the decision)

 

 

 

To whom it may concern:

 

This is a claim of Clear and Unmistakable Error (CUE) in your recent ( Date) decision,filed under auspices of 38 USC 5109(a).

 

You have violated 38 CR 4.6 in two significant ways:

 

 

§ 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.

 

I, the veteran, served in the Marine Corps from 6 Sep 1985 to 5 Sep 89.

 

The failure of the VA to properly read my DD 214 and SMRs, was detrimental to the outcome of your decision.

 

The 28 Jun 87 is within my service period and my SMRs, which you say your reviewed, contains considerable records, some of which I sent to you three times already and are attached to this CUE claim,for your proper consideration.

 

The DBQ done by Christa Conologue, ARNP is erroneous in stating the resection was for a SMALL intestine, when her lack of ability to read the SMRs you have, which I also gave to her at this exam clearly shows this was a hemicolectomy-a resection of the LARGE intestine, and she did not conider the symptoms that I still have, resulting from this surgery.

 

The Exam done by Patricia Memon, PA-C also contains false statements as to not considering my Enlistment Physical, which shows no prior issues at all regarding this disability.

 

The Discharge Physical ( 24 May 1989, DOES show a 12”/.5”midline abdominal scar,Intestinal issues, Colon Polyops, ad Hospitalization at Bethesda Naval Hospital AND surgery in June 1987.

 

The decision is not based on any factual premise and therefore has no probative value.

 

I refer you to Reonal V. Brown, 5 Vet App. 458, 461

 

It violates 38 CFR 4.6 in this way as well:

 

I submitted an independent medical opinion/ nexus statement done by Dr. Robert Ferreira on 08-09-18 which clearly was absent from the Evidence List of the recent decision and thus, was clearly ignored by the VA. Furthermore, having accurately reviewed both my medical records and and being the Primary Care Physician I have, this is therefore the ONLY valid medical opinion rendered to date.

 

The VA's failure to properly consider this Independent Medical Opinion, and failure to properly consider my SMRs and all other medical evidence you have in your possession, and all material facts of this case, has altered the outcome,with a decision that is legally wrong and manifested a decision that is highly detrimental to me.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

----------------------------------------------------------------------------------------------------------

 

------I haven't had time to check my typos and re read this------but you can change it anyay you wish-

maybe others will chime in.

 

 


 

 

 

 

 

 

 

Edited by Berta (see edit history)
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geez sorry for th triples, my Sat dish is getting full of Hail-------

Marine Leo's wife- we get hundreds of guests reading here every day,  ad also  our own members-

You have ALREADY Helped MANY!!!!!!!!!

One of the BEST CUEs I have ever seen. THANK YOU!

Yeah I had to practically become a lawyer and a doctor in the past 25 years. My husband died at 30% but postthumously it was about 290%- my pending issues will get that higher.

Finally two of my friends left the local VAMC for their care. I am 99% sure one was misdiagnosed but he is reluctant to do anything about that.

 

 

 

 

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Geez I made an error - the first sentence should be This is a claim of Clear and Unmistakable error, filed under auspices of 38 USC, 5109 (a) so sorry-  it should not make a difference ,but that is the right citation-

I had to batten down the hatches for a  sudden storm...and am trying to remove the double posts. 

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I just wanted to give everyone an update;

     We just got our phone call from the higher level reviewer- (HLR request filed May 10).  He was out of the Seattle Office and we FINALLY got someone who knows how to read!!! 😄   I was getting ready to start quoting law to him and he told us immediately he's a veteran himself and wanted to apologize profusely for the clear errors on this claim.  He stated that he is documenting that the VA failed in their duty to assist and that the medical opinion listed in the file is "complete and total crap".  Apparently the Dr who wrote the medical opinion contacted the VA and offered her apologies stating that she realized she was mistaken in stating that his STRs had no documentation of intestinal issues or resection. (It might have had something to do with a certified letter we sent to her advising her we were considering legal action for medical malpractice due to her completing medical documentation in gross deviation from the facts of record available to her which she inaccurately cited.)  He said that the VA already ordered a NEW opinion which is completed and favorable but since it was done AFTER the HLR was filed, he technically is not allowed to use that for consideration.  

So, Long story short is he is filing the notice of error and basically "remanding" it back to the decision board because he said once that happens, they will officially have access to the new opinion and can issue the service connection.  He is also documenting that our claim has been continuously executed for the last 2 1/2 + years and that the service connection date should go back to the original filing date.  Nothing "official" yet, but he estimated we should have service connection within 60 days.  I will post an update when we get it confirmed!

 

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