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]

If you have a strong nexus in your civilian doctors report I would go to the BVA. 

As my BVA decision said "..if there is positive and negative evidence it is like sandlot baseball, the tie goes to the runner".  The question is did your civilian doctor state that he read all of your records, ie service records, and that his disability is more likely than not related to service?  The VA is very particular about this.  Check your doctor's report and if it does not get it corrected before going to the BVA.

[GeekySquid]

3 hours ago, JBrown76 said:

f a C&P examiner says that the condition is less likely to have been service connected. But a specialist says Yes it is. I

have you gotten the DBQ from your RO yet?

the C&P bozo does not make the "decision" they just "evaluate" the evidence and the rater makes the call.

without the DBQ in hand you don't know what you are up against so hold off the speculation until you get down to the RO and get that DBQ. Also make sure to get the Letter from VA to the C&P and all other related docs. they might try and balk at that but don't let them.

Did the specialist include their CV, publications and research in with their submission? If they didn't get those things and see if they will write a rebuttal.

The term you are looking for is equipose and in essence it means if two qualified opinions are presented they are in balance. In that event the "tie" goes to the Veteran. This is law and regulation.

The kicker is, that sometimes (okay it seems to be frequently) the VA likes to give their Dr more weight than they deserve.

So your other step while you wait for the BBE is to go back to the notification letter/email from the C&P provider and scan a copy with Dr's name and certifications etc. You want to verify those credentials with your state medical board and license agencies and then have your specialist review them to determine how their qualifications balance.

It is not unknown for the C&P Dr's to be bottom of the class clowns who don't even practice medicine. They just do C&P's and insurance reviews.

One of your avenues of rebuttal will be on the competence of the DR.

Visit the Veterans Law Blog and get a membership if you can afford it; its like a hundred a year or 15 a month...something like that. . Attorney Chris ATtig runs it and paid members get a template to include with their NOD's to attack the Dr's Credentials.

That is important!!!!! if you don't do it at this stage you can lose the right to ever challenge that Dr based on competence...it is a legal thing that has screwed vets for decades.

when you get the Decision and the DBQ, cover all identifying info and scan them to upload here. If we can see the paperwork the collective mind can offer suggestions.

 

good luck, keep us informed