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EPTS Honorable Discharge, Claim Denied


Alwaysgrateful78

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Hi Everyone,

I wanting to help a Vietnam Vet who was drafted, had a knee surgery before service, 3 weeks in, started complaining about pain in knees..Saw a physician in service, provided temp profile, some meds and recommended medical Discharge. Military doc says it chondromalacia and it says it in the STR.  

Claim filed with just the STR record s. Not many due to only be in 90 days. No C&P requested, RO denied for aggravation,  SOC/NOD denied, BVA denied..

My question is, since a NOD has already been filed, should we seek for a CUE since the VA had no medical facts to sent the claim?.Or go for a MOT to the BVA? Vet had TKR, shots, therapy after Discharge.

BTW, we are going to file for the chondromalicia, limitation, pain, instability, etc. Also, the is only scar a on the induction exam. Nothing else.

Thanks for any and all replies. Only one shot at trying to get this Vet what he deserves as far as the NOD.

Alwaysgratedul78

 

 

Edited by Alwaysgrateful78
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How long ago was the BVA denial?  If it was recent, then you need to take your file (especially the board denial) to a law firm for appeal to the CAVC.  Its a no brainer, since EAJA will pay your fees if you win, you wont have any fees if you lose.  

It isnt cue for the VA to "not have medical facts".  Instead, you can reopen due to 38 cfr 3.156 provided that you have new evidence.  If this Veteran did not seek treatment for this since Vietnam, that may be a problem.  You have to show chronicity and continuity.  Did you have a nexus?  How about a diagnosis?  

Was the Veteran treated at a VAMC or did you release the records from private treatment?  

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I'm confused on several details.  There are a lot of questions that would need to be answered in the veteran's favor to win such a claim as this.

Was the veteran only in the military for 90 days?  Was he "boots on ground" in Vietnam, or simply in during the "Vietnam Era"?

Also, did he disclose the knee surgery and the medical history prior to/upon entry?

Was there a specific incident that caused aggravation of his surgical knee?  If so, is it documented in his STR?  Any lay evidence, "buddy letters", etc. to support it?

And, very important to a claim from about 50 years ago:  Are there VA and/or civilian treatment records (that establish chronic disability for that knee) after discharge and over the years until the present?

Lastly, do you have any expert medical opinion(s) that tie the veteran's current disability to his short enlistment?  Preferably, such an opinion would need to explain how/why a disability was caused/aggravated by active duty, rather than by age, lifestyle, jobs, etc. that might be expected for approximately 50 years of wear and tear since the veteran's pre-service injury and surgery?

On the surface, it sounds like an extremely difficult claim to establish SC, but if you can line up enough evidence in the veteran's favor, who knows?  Good luck in getting whatever help the veteran needs/deserves.

 

 

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12 hours ago, Alwaysgrateful78 said:

Hi Everyone,

I wanting to help a Vietnam Vet who was drafted, had a knee surgery before service, 3 weeks in, started complaining about pain in knees..Saw a physician in service, provided temp profile, some meds and recommended medical Discharge. Military doc says it chondromalacia and it says it in the STR.  

Claim filed with just the STR record s. Not many due to only be in 90 days. No C&P requested, RO denied for aggravation,  SOC/NOD denied, BVA denied..

My question is, since a NOD has already been filed, should we seek for a CUE since the VA had no medical facts to sent the claim?.Or go for a MOT to the BVA? Vet had TKR, shots, therapy after Discharge.

BTW, we are going to file for the chondromalicia, limitation, pain, instability, etc. Also, the is only scar a on the induction exam. Nothing else.

Thanks for any and all replies. Only one shot at trying to get this Vet what he deserves as far as the NOD.

Alwaysgratedul78

 

 

GM, 

Thank you both for responding. Vet was in basic training and made it through for 3 weeks before going to sick call with sever knee pains, L>R.

Orthopedic doctor made notes for the swelling pain, and diagnosed the knee/s as sever chondromalicia.

The denials was in 68' and 77'. RO and BVA denials.

Vet had 1 meniscus operation in 67' another in 74' and TKR in 2016

Drafted to go before the injured/aggravation, so no boots on the ground. Separated per AR 401-501, para 2-11a(4).

Vet did disclose the meniscus surgery to the MEPS doctor..Shows as scars, no instability, on the induction paperwork. 

Having the doctor fill out another DBQ. Buddy statements and letter from the doctor stating,  the knee surgery, prior to AD was healed and no other findings of aggravation, according to x-ray and statement from the Vet.

Should the DBQ be considered as medically supporting document? Also, is it not the VA responsibility to rebut the aggravation claim and the preexisting claim with CUE, in which they did not, I believe. Denial letters as though the VA only went what the STR's stated. 

Restating that the claim was filed in Nov of '66, Vet was discharged in Sept '66.

We do have new supporting evidence of the TKR and many other times Vet was seen by his private physician.

 

 

Edited by Alwaysgrateful78
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