Asking for an opinion on a CUE

[Emmafrost1111]

Thank-you in advanced for reading and if anyone can provide opinion.

I filed a VA Claim in 1990 less then year post leaving Active Duty service w/honorable discharge.  I vaguely recall filing it because I was in a bad place.  I remember walking into the the DC VA Hospital in 1990 to seek medical care and asked for an appointment to see a VA Dr. for a continuity of symptoms/medical issues that began and worsened in service and continued. I had no idea that I had to be SC to receive VA care in 1990 less then year off active duty.  So that went down well as you can imagine especially since I was there to seek help for what I called unresolvable stress, TMJ pain/headaches and I was not sleeping.  In any event, I was handed stack of forms and told to fill them out and mail them in if I wanted to see a VA Dr.  It appears I filled out my 1st VA Disability Claim forms in 1990 by hand, listed my problems in layman’s terms since I hadn’t seen any Dr’s since my AD SEPS physical, and I mailed it in.  Apparently, I also had a C&P because I got a copy of my C-File and it’s in my file along with the denial I received and more then likely tossed because I was barely sleeping and in a constant state of anxiety & stress.  A female Veteran talked me into to going to the VA in 2010 for MH Counseling.  She also ended up encouraging me and ultimately assisted me with filing a VA Disability Claim later in 2012 that service connected me at 70% for PTSD & Depression due to MST.  The claim was processed pretty quick.  

Now I’m looking at the details of this 1990 Claim in my C-File.  It’s strange because it states in handwritten notes that my Discharge Documents ? are missing, maybe nothing.  My USMC SEPS physical/dental clearly notes I have TMJ.  It’s documented thoroughly in my STR both medical & dental as severe TMJ and bruxism due to stress.  I had zero issues regarding TMJ in my entrance physical or dental exams until about 2 yrs in.  I had 0 issues of any kind on both dental/medical entrance exams.  I was given Motrin to take everyday on AD and they even made me a dental mouth guard. I was sent for psych evaluation as well and sent to specialist for heart tests and EKGs because I was passing out (Military dx’d as Vasovagal syncope) so I guess it was considered stress/anxiety related (EKG in service:  normal sinus rhythm with sinus arrhythmia). Less then a year prior to discharge I was also seen in base medical after I was thrown head first into a cement wall and dx’d with blunt force head trauma to left occipital skull/head.  Dr. gave me more Motrin, bed rest and sent me home.  This was not the sexual assault incident in service, this was another incident after sexual assault.  It was a straight up violent physical assault where my STR notes I was attacked by multiple combatants, picked up and thrown into a wall head first.  The base Dr. actually drew a stick figure type picture in my STR showing angle of head impact to wall.  I only mention it because 1990 decision states in absence of trauma in service..I was basically born defective with TMJ which is a lie. My records are rife (IMO).  I will post 1990 claim+denial decision because I want to know if it was an error or CUE.  The VA can only go by what I wrote in layman’s terms on claim and then C&P, so it’s likely not, but not sure.  I still have TMJ, it’s worsened of course as has dental issues.  

[GBArmy]

Hi Emma. You have a lot of things going on and I suggest that you have so many things still on the table that you see a competent lawyer for appeal. You have to evaluate what specifically you have to claim and see if they match up with the appropriate diagnostic codes and how serious the conditions are. Because you have MH disabilities, I think it makes sense to get several of these outstanding disabilities approved in case your rating is decreased later on. There are several law firms listed on this blog but you should talk to a few and see who you may be most comfortable with. One of the things they will evaluate would be the early effective date for some yof your potential disabilities. You may be a candidate for 100% TDIU as well. 

[Buck52]

1. I had no idea that I had to be SC to receive VA care in 1990 less then year off active duty (not true)

2. I was handed stack of forms and told to fill them out and mail them in if I wanted to see a VA Dr (was these enrollment forms to be admitted tot he VAMC?) or compensation claim forms?

3. you was talked into filing a MH Claim in 2012 and was awarded a 70% MST PTSD S.C.  Condition  in 2012  and you requested your C-File after this date and found notes *what was in these notes?)

WHY or WHAT was the claim in 1990 for? that you were denied on  we need more information.

I really do not understand what you are asking or seeking information on? is it that your trying to get a EED?

 Note** Please ask one question at a time   mixing them up like you did in this post is hard for other members here to help you , so please  ask one question at a time and skip  down some to ask another question.

or  do it by numbers  

Question 1 .....Question 2,......... Question 3,   ect,,,,ect,,,, your post here is quite confusing...sorry.

[broncovet]

There is a specific regulation to "reopen a claim" due to new and relevant (formerly called material) evidence, under 38 CFR 3.156 c, which sounds like it addresses your exact issue:  When service records are lost then found.  

It sounds like you have evidence in your service records that refutes the 1990 denial.  

My suggestion, rather than allege CUE, is to reopen due to new and relevant evidence and submit the evidence you mentioned where the doc drew a "stick figure" showing your blunt force trauma.  

This should result in benefits being backdated to your exit from service.  

I dont know if you can do this yourself, or if you need professional help to file these documents.  I do know you will need patience and persistence to win it.  I will admit a lawyer would increase your chances of winning back pay to 1990 significantly.  

You can take your file to an experienced Veterans law attorney and see what he thinks.  Then you can decide whether or not to hire him.  Typically, they will charge 20 percent of your backpay.  However, you would get to keep the other 80 percent.  

If you wind up at the CAVC after a board denial, EAJA could wind up paying all, or some of your attorney fees.  

Frankly, it sounds like you have been taken advantage of by VA, perhaps due to the very SC conditions that were caused in the military.  

[Berta]

When the VA gave you 70%, were you working then? Or if not, and they knew that, did they send you a TDIU form?

TDIU pays at the 100% rate.

Can you scan and attach here the 1990 decision.Cover your C file # and name prior to scanning it.

We need to see their rationale for the denial as well as the evidence list.It is always possible they committed a CUE.

I assume you have PTSD that warrants the 70%?

TMJ is often due to PTSD or any anxiety disorder. I posted a winning claim on that here some time ago, we have a few TMJ vets here.

 

You said this and that in my opinion is probably VA  BS in 99% of the time.

The VA has to PROVE you had a pre existing condition prior to your service.

I am a Cuerino and will be able to see if the older decision holds a CUE, in addition to the statement below.

 

" I only mention it because 1990 decision states in absence of trauma in service..I was basically born defective with TMJ which is a lie."

 

Quote

 

 

Edited July 14, 2019 by Berta

[Berta]

This case is a beauty:  It popped up in mere seconds, at the BVA

https://www.va.gov/vetapp19/files4/19129046.txt

The veteran mentioned the known medical nexus between TMJ ( bruxism) and PTSD.

In part:

"During the appeal period, the Veteran has continued to report the same jaw symptoms which were the basis of the 2012 bruxism/TMJ diagnosis. See February 2016 notice of disagreement and January 2018 substantive appeal. His statements describing his jaw symptoms are not only competent but also credible. Moreover, the Board finds the 2016 private dental opinion to be the most probative evidence of record addressing a causal link between the Veteran’s current bruxism/TMJ and his PTSD because such opinion is factually accurate and contains sound reasoning. The opinion was based on the dental examination findings and the reports of the Veteran experiencing jaw symptoms, particularly during times of increased stress. This private dental opinion coupled with the Veteran’s competent and credible reports of fluctuating symptoms of continued jaw clenching and pain, particularly in times of stress, supports a finding that the Veteran’s bruxism/TMJ is, at the very least, exacerbated by his service-connected PTSD. Thus, service connection for bruxism/TMJ is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, 3.310."

Some vets might need a IMO/IME from their dentist but there is so much medical info that provides the nexus, a vet should not need an IMO/IME- it all depends on what the C & P exam reveals.

The pre existing BS....

https://www.hillandponton.com/va-said-condition-preexisted-service-now/

 

 

[Emmafrost1111]

Thank you for taking the time to read my post and for your replies.  I really appreciate it.  Apologies for jumping around in my post.  To clarify, my goal (which may be in vain) is to be direct SC’d for TMJ via my 1990 VA Disability Claim.  I got off active duty 012090 and the 1990 Claim date is 100990.  The claim I submitted in 1990 was for the following:  nocturnal bruxism, clenching, TMJ pain AND a broken pinky finger.  The C-File currently in my possession contains only files associated with my 1990 Claim as I got a copy of my C-File prior to filing and succeeding on the 2012 Claim for PTSD and Depression due to MST.  Not sure why I claimed a broken finger as it was healed by then, except I probably didn’t entirely understand the VA Disability system.  I had broken my finger during service, my finger above first joint was bent 90 degrees backwards and the next joint side ways. Two people I was with at the time looked at my finger, took my arm, told me to look away, then yanked it straight.  The finger, side of hand and an area half way up my forearm turned black and blue, and a year later it healed with minor bone calcifications.  Wasn't a big deal.  Nevertheless, it appears in my 1990 Disability Claim the VA SC a finger at 0% probably because you don't require a pinky finger to function.  At the very least, the before, the manual correction, and the after, would have made a nice gnarly photo op for the teeny boppers social media circles in the current climate.

i will cover all PII and scan in the files and upload.  I’m going to include VA C&P exam notes as well because apparently during my dental exam the Dr. noted I complained of an open bite and told him I didn’t use to have the open bite and believed it was caused or related to the type of mouth guard I was issued on active duty by base dental for my bruxism/clenching/TMJ Pain/headaches. The C&P dentist on the other hand concluded the open bite was a congenital developmental abnormality and not incidental to military service.  The only problem is my entry exams are moot for an open bite as well as my Paris Island, A School and C School Dental and Medical Records and beyond as far as I can tell.  I know I did not have an open bite because I had no previous issues biting through a piece of celery with my front teeth while in service.  I was also the only recruit in my Platoon in boot camp that wasn’t required by the Marine Corps and Base Dental to have my wisdom teeth pulled because they were fully grown in, well established and straight. So for VA to allege it was developmental in nature like I was still a growing child is absurd when I had a full set of well established adult working teeth even in boot camp. I’m 52 and just had my wisdom teeth yanked last year outside VA. 

Even if I were to just concede on VA’s assertion that I was essentially destined congenitally to develop an open bite, bruxism, TMJ (I will NOT), VA could have SC via aggravation of my alleged congenital developmental defect.  Bottom line, whether I succeed in my stated goal or not, I’ve literally HADIT with VA in general over other issues related to providing timely and appropriate healthcare for mental health issues. That said, there are also many great and caring individuals I’ve encountered that work at the VA Hospitals and my CBOC.