Possible CUE claim?

[JBrown76]

My husband was medically discharged in 2002. He got his VA rating in 2003. In his VA rating, they state they do not have his complete medical records. On his Rating decision from the VA in KS they state for evidence they have his VA exam in 2003, a partial service medical record that includes his enterance physical from 1993 and 3 pages from his left knee surgery. That was the only medical records they had. 
He got 10% for his left knee, but was denied his right knee, his wrist condition, and his heat stroke where he was air lifted from the field and was a level 3 tramua. 

On his wrist condition, they state- the VA exam found no current disorder. and that there was a history of sprains. They go on to say, the complete service medical records are not available and it is not known whether there were wrist complaints in service. Since no current disorder is found, service connection is dened. 
Aren't they completly contradicting themselves there? And there are no history of sprains in his records, only a diagnosis of wrist tendonitis. 
How could they have done a complete review without his complete records? He even brought a copy of his records with him to his first VA appointment and they stated they had all his records.

He then went back to the VA for an increase in his knee rating and to reopen his right knee and his heat stroke. Again he brought in his right knee surgery MRI, xrays and surgeon notes. The doctor would not look at them since they were on a disk, and refused to let me in the room with him even after he asked to have me with him. Again they did not have his records and he was denied an increase and they denied service connection for his heat stroke. 

He has reopened his claims again this time, and asked for an increase for his left knee. We have notes from 2 civilian doctor stating his conditions have worsened and that they are from his time in service. He also has uploaded to ebenefits his entire medical file and civilian doctors notes. He has 2 screws in his left knee and a 7 inch scar. Does nayone have any advice on how to proceed. Is this a CUE or do we need to just continue to appeal or reopen if he gets denied again? 


 

[vetquest]

I first would like to say that some doctors do not let the spouse into an exam.  I believe this is not right, the one doctor who did not allow my wife into an exam was dismissive and rude to me.  

Are you still within one year of his last denial?  If you are I would file an NOD instead of reopening his claim and save his filing date.

If he has his complete medical records I would suggest bringing in relevant records to his C&P with the important parts marked out with tabs.  I would also do this if filing an NOD.

I would suggest getting his c-file from the VA.

If you have his complete medical records and submitted these to the VA and the VA did not properly review them then he might have an avenue for QUE.  I will let @Berta fill you in about que since she knows this better than anyone I know of.

The last matter is service connection for heat stroke.  This is a difficult one.  I was discharged administratively from the USMC for problems related to a heat stroke and fought long and hard for the VA to rate me for residuals.  There are many side effects of a heat stroke that can be rated though.  Does he have headaches due to the heat stroke that can be classified as migraines?  Does he have any neuropathy?  That may develop later.  Is he affected by the heat today still?  Does he have any mental changes due to the heat stroke?  Where to start is here.  

long term effects of heat injury.pdf

[JBrown76]

2 hours ago, vetquest said:

I first would like to say that some doctors do not let the spouse into an exam.  I believe this is not right, the one doctor who did not allow my wife into an exam was dismissive and rude to me.  

Are you still within one year of his last denial?  If you are I would file an NOD instead of reopening his claim and save his filing date.

If he has his complete medical records I would suggest bringing in relevant records to his C&P with the important parts marked out with tabs.  I would also do this if filing an NOD.

I would suggest getting his c-file from the VA.

If you have his complete medical records and submitted these to the VA and the VA did not properly review them then he might have an avenue for QUE.  I will let @Berta fill you in about que since she knows this better than anyone I know of.

The last matter is service connection for heat stroke.  This is a difficult one.  I was discharged administratively from the USMC for problems related to a heat stroke and fought long and hard for the VA to rate me for residuals.  There are many side effects of a heat stroke that can be rated though.  Does he have headaches due to the heat stroke that can be classified as migraines?  Does he have any neuropathy?  That may develop later.  Is he affected by the heat today still?  Does he have any mental changes due to the heat stroke?  Where to start is here.  

long term effects of heat injury.pdf 40.99 kB · 3 downloads

He isn't within a year of his last denial. He went in 2013 after his right knee surgery hoping that this time they would rate his right knee and increase his left. No luck and he just gave up. Plus he believes that since he didn't deploy, he would rather have the VA concentrate on those veterans. 
As far as his heat stroke, he was air lifted from the field At Ft Polk, 106 degree core body temp and rescuitated twice before he got to the hospital. He was unconcious upon arrival. He was only responsive to pain and then only for a brief moment. He spent two days at the hospital. He's had headaches since then, but only one is documented in his service medical file. The whole heat stroke is documnted and there's about 10 pages of records for just it. 

I've made copies of his file and seperated them into each condition and highlighted the important parts. 

Thanks for your answer. Hopefully Berta can fill in on the details of a CUE. 

[Berta]

"He also has uploaded to ebenefits his entire medical file and civilian doctors notes. He has 2 screws in his left knee." 

Does that upload include all of his SMRs that he has?

Does any evidence list or decision contain anything that indicates they requested his SMRs?

Did he obtain his SMRs via NARA with a SF 180?

This is a CUE basis that has worked for me-

my RO countless times, ignored my probative evidence -those claims  did not regard SMRs but they too are Very probative evidence.

You can file this type of CUE any time during the appeal period, on a recent decision as well as on a very old decision.Recent decision CUEs go faster.

 

It is a violation of 38 CFR 4.6 ,if the VA ignores probative evidence.

They might have made no attempt at all, regardless of what they say, to have gotten the SMRs years ago.

Or they got them and didnt know how to read them.

 

"§ 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.

38 CFR 4.6"

Can you can and attach here their last denial and the Evidence list for that denial.

Cover the C file #, name, prior to scanning it.

 

 

Edited May 31, 2019 by Berta

[JBrown76]

I'm not sure if I can attach any images yet. I only have the option to insert an image from URL. Is there something I'm missing? 

[Tbird]

@JBrown76 Your account has been upgraded and your posts will now show immediately. You can now upload images. When uploading documents it works best to save them as a PDF and then upload them.

[FormerMember]

I'm coming to find that new Veterans to this site often do not understand the verbal nomenclature we often use in these conversations. I think T-bird might consider putting in a dictionary of terminology to help the newbies. I have one labeled Vet's Dictionary on my site but it focuses on a lot of Vietnam War terms more so than VA terms. 

One thing I find confuses my Vets is medical evidence. When you file, VA wants to see what your medical records say from service (STRs -or SMRs pre-2008). Far too many think medical records post-service will help them attain Service connection (SC). It may show chronicity or degree of debility to satisfy that prong but it is not helpful in proving it occurred in service. If I tell my client to send me any STRs they have, I often get post-service stuff. Many confuse any medical (or military personnel) records you obtain at the National Personnel Records Center (NPRC) with their claims file maintained by VA. Some have sent me their VAMC records thinking these are c-file records. Not so in most cases. Even worse, if you filed a VA claim back in the 70s-80s, the NPRC often sent the original STRs to the VA and did not keep the original copies. When you ask for them via the SF 180, they'll write back and claim them have none. They also neglect to tell you VA has the only copies. Military records and inpatient hospital records are not stored with the STRs. They are in three different buildings. In a lot of cases, the inpatient stuff is still at the hospital in microfiche and was never sent to the NPRC.

Even stranger, VA will often tell you they cannot find or obtain your records. I filed in 2015 for one of my Vets and found all his stuff still sitting in St. Louis untouched for almost 50 years. VA said they tried to get them in 1970 but couldn't find any. Of course, this created the largest §3.156(c) claim I've ever done. VA is lazy, I'm sad to say. They tell you things that are patently untrue. I had a Vet who filed five times between 1971-2015. He finally won 100% in '15 and asked me to do the appeal. You guessed it. They finally went back and got the NPRC records in 2014 and spotted their error. Bingo-100% but no earlier effective date back to 1971. That one's in on appeal as well for a 1971 date. In this Vet's case, they "lost" his VAMC records- the one showing a chronically infected (Hep. C) liver. They accidentally sent it to him in 2001 when he filed a FOIA claim. It still was not part of the record when I filed the appeal. I submitted it again and VA promptly labeled it a "duplicate filing". In law, we call this spoliation of the claims file-a recipe for an instant win. Having a claims file isn't as good as actually having access to the VA's computer, There, you can actually see in chronological order what they did from beginning to end. They cannot erase, cut and paste or shred in 2019. What they did in 1980 is poured in concrete. This is why it's so easy to go after them for antique CUEs now. Unfortunately, Vets do not have access to this valuable tool yet. I do hope it eventually is granted to them. You can ask your VSO to come in and privately review the claims file in person. VA rarely does this anymore but that would get you into the VBMS computer where you could ask them to print up copies of certain documents or you can take your camera phone in and screen shoot their entry into the VBMS for proof they failed to go get your STRs until 2016.  

VA law is now getting down to a Sherlock Holmes exercise of "what did they know and when did they know it" game. If you want to have a successful CUE, 99% of your evidence you'll need is right there in their files. You will never win without it. They are not going to volunteer their guilt. The name of the game in VA law is Evidence is King. Lay testimony is often useless without supportive records. I am now doing six (6) claims where VA introduced the STRs many, many years after the original filing and then granted entitlement...but without granting an earlier effective date. Each one is an ungodly amount of back retro $. The cheapest is $80 K. The largest is over $1 million. That's not chump change. CUE is the hardest legal path to win but often the most financially rewarding if you succeed. Of course, if you're like Berta and me, winning CUE isn't about the $. It's the vindication that you are, and were, right and VA screwed up royally and then continued to lie about it to CYA. 

Onward through the fog.