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  • 14 Questions about VA Disability Compensation Benefits Claims

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    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
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  • Most Common VA Disabilities Claimed for Compensation:   

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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

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Marineleo

Help needed- Where do I go from here?

Question

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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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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Posted (edited)

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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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------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

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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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