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Possible CUE claim?

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JBrown76

Question

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? 


 

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Thanks for correcting me Vetquest-

I think that is why some of the  BVA decisions use two different diagnostic codes.

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On 6/2/2019 at 5:20 PM, Berta said:

T

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?




 

He uploaded his files prior to submitting. It was last month when he uploaded them all. He asked for an increase for his left knee, and to reopen the right knee, heat stroke and wrist condition. he did several secondandary conditions for each one as well.

He actually saw a doc for his C&P today. It was a veteran doctor this time, who did a very through exam for his left knee, wrist, and the secondary condition of headaches. The right knee, heat stroke are a supplemental claim according to the paperwork he received. 
This doctor actually measured his scar, and did more testing than he has ever had anytime he went. Since the last xrays they had were from 2003, he sent him to take new ones today too. And stated that they should be getting the images from his civilian doctor soon. 
We asked if they had his records and the doctor said yes, and he told us that there were no files at the time of the 2014 claim decision or the 2003 decision. 

How do you go about getting the claim backdated? Does he have to wait for a decision to appeal or is it something that can be done now? He still has to go for another appointment for the supplemental claim. We are just waiting for his civilian doctor to write out a nexcus letter. 

Thanks everyone for all your assistance. 
 

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This might be the basis for a 38 CFR.156 (c) claim.

"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."

I understand they said that in 2013 as well- and probably never attempted to try and get them in 2013.

Did he raise this issue in the recent claim:, that he was able to get his SMRs, but VA said they couldn't get them all.?

These are two BVA awards based on reconsideration due to missing service records:

 

ORDER Reconsideration of a previously denied claim of entitlement to service connection for schizophrenia is granted. Entitlement to service connection for schizophrenia is granted.

https://www.va.gov/vetapp18/files11/18146874.txt

and

 

“ORDER Reconsideration of a previously denied claim of entitlement to service connection for a cervical spine disability is granted. REMANDED The claim of entitlement to service connection for a cervical spine disability, on the merits, is remanded.

Following the Veteran’s attempts to reopen the claim in June 2004 and January 2008, the RO declined to reopen the Veteran’s claim for service connection for a cervical spine disability in May 2005 and July 2008 rating decisions. Although notified that her claim for service connection for a cervical spine disability was denied in May 2005 and July 2008 letters, the Veteran did not initiate an appeal. Moreover, as to each denial, no new and material evidence was received within the one-year appeal period following notification of the denial. See 38 C.F.R. § 3.156(b). Typically, this fact would render the decision final as to the evidence then of record, and not subject to revision on the same factual basis. See 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Under such circumstances, VA could only reopen and review such claim if new and material evidence is submitted by or on behalf of the Veteran. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). However, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement that new and material evidence must first be received. 38 C.F.R. § 3.156(c)."

https://www.va.gov/vetapp18/files8/18122920.txt

I believe ,if the missing SMRs are not addressed in the decision (which would be a 38 CFR 4.6  CUE -since they have then now)

this could be a strong basis for filing a Reconsideration request, as these BVA decisions show, to gain a proper EED.

Claims like the Many Reconsideration Request claims under 38 CFR 3.156 (c) in my opinion, at BVA -should never have even gone to the BVA.

Maybe it is best to await their decision...it sounds like he got a very good C & P exam.

 

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The BVA case above makes the point that whenever missing service records are found, that

 "will reconsider the claim, notwithstanding the requirement that new and material evidence must first be received. 38 C.F.R. § 3.156(c)."

That would be great if they do that at this point, so that you would not have to file for a Reconsideration.

If they don't and they clearly have the SMRs, I can prepare a CUE for him to send to them immediately- those types of CUEs in my experience , go faster than anything else does.

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On 5/30/2019 at 1:22 PM, JBrown76 said:

That was the only medical records they had.

Hi, @JBrown76

got a question and maybe an option for you to explore

I have read all the posts in this thread and I want to make sure that I understand a basic fact.

When  you are talking about uploading your husbands files to VA are you saying you have ALL his military treatment records in your hands? or are you talking about single files that may or may not be military STRs?

This could be an important factor for you to get an Earlier Effective Date when you finally get Service connection on stuff. If the VA had the files but blatantly claimed they did not, you have a good case on multiple fronts.

The possible option that may help you is something I just found out about yesterday.

The VA has a program called the Joint Legacy Viewer. It is an application that looks at all records they have electronically on a veteran from every source, VA, DOD, Service Branch, and at every Regional Office.

The process when you go to a VA to register is that your military files are supposed to be "brought into" the system at that Regional Office. This would theoretically  include all your STR's.

When a claim is filed they also send a request to the command or commands they think will have records of the nexus events and medical records.

All of these should be viewable in the JLV application.

I found out about it because I told my new VA Primary Care Doctor that there were missing records. She contacted the social worker her unit works with and he had me come by yesterday after another visit to a surgeon I already had on the books.

In 5 minutes he found at least one significant record the VA says is "lost". I am going to schedule another full day appointment to comb through my records using the JVL.

I cannot say it will show you the military STR;s or not, but it will show you what the VA has on file and what the other connected systems have on file.

You might talk to his PC about this and see if the local social worker will help you access the JVL

Hopefully you find those missing records and can prove through the JVL that the VA had them when your claim was originally filed.

 

 

 

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On 6/7/2019 at 12:32 PM, GeekySquid said:

Hi, @JBrown76

got a question and maybe an option for you to explore

I have read all the posts in this thread and I want to make sure that I understand a basic fact.

When  you are talking about uploading your husbands files to VA are you saying you have ALL his military treatment records in your hands? or are you talking about single files that may or may not be military STRs?

This could be an important factor for you to get an Earlier Effective Date when you finally get Service connection on stuff. If the VA had the files but blatantly claimed they did not, you have a good case on multiple fronts.

The possible option that may help you is something I just found out about yesterday.

The VA has a program called the Joint Legacy Viewer. It is an application that looks at all records they have electronically on a veteran from every source, VA, DOD, Service Branch, and at every Regional Office.

The process when you go to a VA to register is that your military files are supposed to be "brought into" the system at that Regional Office. This would theoretically  include all your STR's.

When a claim is filed they also send a request to the command or commands they think will have records of the nexus events and medical records.

All of these should be viewable in the JLV application.

I found out about it because I told my new VA Primary Care Doctor that there were missing records. She contacted the social worker her unit works with and he had me come by yesterday after another visit to a surgeon I already had on the books.

In 5 minutes he found at least one significant record the VA says is "lost". I am going to schedule another full day appointment to comb through my records using the JVL.

I cannot say it will show you the military STR;s or not, but it will show you what the VA has on file and what the other connected systems have on file.

You might talk to his PC about this and see if the local social worker will help you access the JVL

Hopefully you find those missing records and can prove through the JVL that the VA had them when your claim was originally filed.

 

 

 

When my husband ETS from Ft Polk, he had a friend at the hospital, who made a copy of his medical file for us. That's the file that we uploaded to ebenefits when we found out they didn't have his records. 
He's going to request his c-file so we can see what evidence they have been using. 

Even though, he thought his recent exam went well .from reading the C&P notes, it did not. The PA stated my husband is morbidly obese (he is not, he overweight but not morbidly obese) he was never weighed so how would the PA know. 
He stated for everything my husband claimed that it was less likely than not caused by military service. the notes state that my husband's pain is only subjective because he did not have any of the objective symptoms of pain such as pupil dilation, sweating, and increased heart rate. He stated that my husband's headaches are not related to his service and that he only had dehydration from his heat injury. Every note from that incident says it is a level 3 heat injury. 
This PA even contradicts the civilian orthopedist that has been treating him. The C&P PA states that he does not have arthritis or joint disease. The civilan doc completed the knee questionairre stating the he has arthritis and joint disease. 

I guess he's going to have to appeal this rating when it comes back. 

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