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? 


 

[Berta]

So well put Alex!!!!!!!!!!!!!!!!!!!

We do have an acronym list here but a claim often involves becoming bilingual- in English and VAOLA.

Actually there is also  a verbal difference in the way the BVA states things, compared to the CAVC

"VA law is now getting down to a Sherlock Holmes exercise of "what did they know and when did they know it" game."

I have made that point here many times, over the years.Thank you!!!!!

I am a Watergate Buff!!! I was reading John Dean's (Nixon's former WH counsel) book on Watergate when I was in labor  at hospital , soon to give birth to  my veteran daughter , and my doc said he only knew I was in labor when he caught me putting the book down briefly, to take a deep breathe. I would pick the book right up again but didnt get a chance to finish much of it that day.

Watergate : The congressional committee asked:

"What did the president know and when did he know it'

and this can be a key factor in CUE s as well as 3.156 claims. You are SO right!!!!!

And this reminded me of a vet whose POA vet rep showed me only 3 pages of his SMRs and the VA said the rest were burned in the St Louis fire.I told the rep, wait a minute-I was in a Fire Dept for 8 years, firemen could not recover a few pages here and there- the St louis Fire was catastrophic.There are no water marks or burned areas of these pages- ergo----The VA is full of S____!

The vet used a SF 180 and he got copy of his complete SMRs.

Another problem this same so -called vet rep had, he asked me to fix-

another vet got the same BS that ALL of his records were burned in the St Louis fire.

I asked to see the veteran's DD 214- he was not even BORN when the fire occurred and I told the vet to help him with a SF180-

The VA was saying this bull crap to many veterans , years ago, if they saw the veteran was in the USAF. A good portion  of the AF veteran  records they had were destroyed- but sure not all of them.

CUES have grow at the BVA web site- many denied and some awarded....and if the BVA says the claimant is not prejudiced by the denial, that means, if the veteran works the claim better , they might succeed when they re do it. I like to read those CUES there- that is where I got most of my knowledge re: CUE.

The biggest mistake I see, in vets denied at the BVA, is that the veteran has not adequately determined the exact regulations they broke, or has made a medical argument , not a legal one.

Wrong diagnostic codes, for example, can be detrimental to a veteran, if their disability should have been given a different DC. If their medical evidence supports CUE on that basis, then it is a legal issue and not a medical one.

The most CUEs I see here however, fall under violation of 38 CFR 4.6.......meaning the VA had received probative evidence for the claim, and ignored it completely.When they do that to an IMO/IME , that might have been quite costly and was the first real medical assessment of the veteran's disability(s) the veteran will ever get,   I really get pissed off. They should CUE that VA  BS in a heartbeat.

(Re Watergate -I have photos of the Watergate I took in DC on my PC desk)I thought Alexander Haig was Deep throat- what a shock to find out a few years ago , it was Mark Feld..... # 2 in charge FBI)

A lot of the interests I have, regard lots of research, and reading, 

but that is how I won my VA claims as well...I left no stone unturned.

 

 

 

 

 

 

 

 

 

 

 

 

 

[JBrown76]

On 5/31/2019 at 6:07 AM, Berta said:

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.

I can't find the last denial from 2014, but it said that no new evidence was provided. Wouldn't new evidence be the missing original SMR? 

Attached is his original rating from 2003. 

Thanks TBird for upgrading my account. 

 

 

redac-2003 va rating.pdf

[Berta]

I mis stated what I meant- the BVA will dismiss   a CUE claim without prejudice to refiling.

https://www.va.gov/vetapp18/files10/18142957.txt

(The veteran thought a CUE was in order but his claim was still open at the RO and they had not sent him a SOC.)

https://www.va.gov/vetapp17/files2/1708214.txt

(The DAV apparently did not know how to file a CUE)

From 1994 to the first 1/4 2019 1, 135,005 decisions have been made at the BVA. 53,371 were cue claims.

Page 1 of 53371 results — searched 1135055

Query: (cue)

[Berta]

This looks like a 38 CFR 3.156 claim- and not a CUE----

the results would be the same-(should be)

"He even brought a copy of his records with him to his first VA appointment and they stated they had all his records."

"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? "

Did he upload them after filing the re-opened claim?

Did he make it clear to the VA                 ( they have to be told stuff like they are 10 years old)

that he has provided the medical evidence that warrants a higher service connection rating for this:

"asked for an increase for his left knee." and re opened the heat stroke claim ( I dont know how or if they rate heat stroke residuals , I will check that out) He should also claim the scar.

And he re opened the right knee as well......am I getting that correctly?

This could be a CUE- if the VA had, and he has proof they had, the complete SMRs, when they made this 2014 denial.

"I can't find the last denial from 2014, but it said that no new evidence was provided. Wouldn't new evidence be the missing original SMR? " Yes

 "He got his VA rating in 2003. In his VA rating, they state they do not have his complete medical records"

I understand he got them himself-this too might be a CUE basis-

When did he formally send them or upload them to the VA?

Has he formally claimed left knee higher rating, proper right knee rating, the scar , and maybe the heat stroke?

Did he tell VA in the claim or via ebenefits that they have his complete  SMRs?

Has he received any correspondence   from the RO yet?

 

[Berta]

The Veteran’s residuals of heat stroke are rated as noncompensably disabling under DC 7899-7832, as analogous to hyperhidrosis. The Veteran contends that a compensable rating is warranted. Under DC 7832, hyperhidrosis is noncompensable if the Veteran is able to handle paper or tools after therapy; a 30 percent rating is appropriate if the Veteran is unable to handle paper or tools because of moisture and is unresponsive to therapy.  38 C.F.R. § 4.118, DC 7832 (2017).

https://www.va.gov/vetapp18/files5/18101288.txt

Heat stroke depends on the residuals. Severe heat stroke can affect the brain, which is very rare, but I imagine it could cause a loss of consciousness and then cause a traumatic fall. 

What are his residuals?

[vetquest]

Sorry to disagree Berta but heat stroke can affect the brain and quite often does.  There is hyperhidrosis, which the VA will rate.  There are also studies on servicemen that show changes in personality and cognition.  There can be a condition where a veteran loses his ability to withstand heat which the VA will not rate, that is what I suffered and it is a travesty.  Also I am rated for neuropathy which showed up twenty years later.  The VA recognizes cold injuries can cause neuropathy and in my case they recognized that a heat injury can cause this.  I have seen veterans also rated for migraines due to a heat stroke, and mental changes.

Before I won my case at the BCNR for brain syndrome the Navy was quietly shuffling certain Navy and USMC veterans out the side door for many conditions considered a "pre-existing" disability without the benefit of a civilian review board.

What you need to do is a careful inventory of what problems you are having and then see if they can be related back to a heat stroke.  With a good doctor and some research there is a wealth of information on conditions that can be related to heat stroke.  It is just that for many years the VA has been hiding this rabbit under their hat.

Excuse me if I am passionate about this but I have lived from the injuries of a heat stroke for many years.

Edited June 3, 2019 by vetquest