Help needed- Where do I go from here?

[Marineleo]

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

[vetquest]

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.  

[Marineleo]

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?

[vetquest]

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.

[Berta]

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

[Marineleo]

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

[Berta]

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 May 23, 2019 by Berta
added more