Need help deciphering this letter for Flat Feet Appeal?

[doc25]

This is the letter CCK sent for my appeal. Does it suffice to make a strong arguement for a CUE??

CUE.pdf

[GBArmy]

doc25 I am not a CUE expert by any means, but I think the CC&K submittal is very strong. Good luck.

[pacmanx1]

OK, it is early Monday morning and I have not had my drugs but why did CC&K file this claim as a CUE.  If your claim was rated and issued on or around April 23, 2019 and this letter was submitted on April1, 2020 why didn't they just submit a disagreement since it would be a lot easier to win than a CUE claim (within a year time frame of your last denial).  Don't get me wrong you can still win a CUE claim and they would result in the same benefits but a CUE claim has a higher threshold to meet than a simple disagreement.

Sometimes it is best to get service connected then fight for the effective date.

Edited August 11, 2020 by pacmanx1 (see edit history)

[Berta]

The citations are very good .

I would have written this differently however.

It looks to me as if the VA did obtain your SMRs ( that would be listed in the decision's evidence list)

However they violated 38 CFR. 4.6 because it appears they did not even read them , even regarding the past denials.

And I would have filed CUE  in April 2019,  probably a day after I got the decision,.

Hopefully the HLR will do the right thing.

CCK had more info than we have here so , I do think it will help,but I will check the Citations, as soon as I get time.

38 CFR 4.6 covers a multitude of legal errors the VA can make . It is my Favorite regulation.

"§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

https://www.law.cornell.edu/cfr/text/38/4.6

Short and sweet.

 

 

[deedub75]

17 hours ago, doc25 said:

This is the letter CCK sent for my appeal. Does it suffice to make a strong arguement for a CUE??

CUE.pdf 210.74 kB · 16 downloads

Reading the evidence in your letter just shows how erroneous these VA examiners can be. What does it even matter whether or not you had a congenital foot issue when entering the military?  It seems clear based in the evidence that you developed bilateral foot issues while in service. 
 

I had flat feet noted on my entrance exam and had some issues while in active duty. It was noted on my exit exam that I had an abnormal gait.  Being ignorant about how VA disability worked,  I didn’t know I could file all of the issues I had when I was sent to the VA to file claims as part of my out processing. I only filed for an ankle and a varicocele that was aggravated during my service. These were also on my entrance exam. Even then the examiner just told me think of anything that bothered me on active duty. There were others like allergies and sinusitis that I had no idea VA would service connect. 

My initial flat foot claim was denied on an ACE exam because the examiner said I didn’t go to the doctor enough times for it while on active duty.  There is no such requirement on how many time you have to go get seen for an issue.  I asked for a DRO review and it was granted on appeal  

 

[doc25]

13 hours ago, pacmanx1 said:

OK, it is early Monday morning and I have not had my drugs but why did CC&K file this claim as a CUE.  If your claim was rated and issued on or around April 23, 2019 and this letter was submitted on April1, 2020 why didn't they just submit a disagreement since it would be a lot easier to win than a CUE claim (within a year time frame of your last denial).  Don't get me wrong you can still win a CUE claim and they would result in the same benefits but a CUE claim has a higher threshold to meat than a simple disagreement.

Sometimes it is best to get service connected then fight for the effective date.

1. The claim has been denied 3x already. Still Seeking service connection.

2. The VBA erred in denying my acquired flat feet claim in Oct 9,2007 and the last two attempts for SC. 

In my case, I believe I should've have been rated at least 10% for acquired bilateral flat feet and the effective date ought to have been 14JUL2007 (ETS)....but I'll take 01NOV2007 since the first denial is dated Oct 9,2007.

[doc25]

3 hours ago, deedub75 said:

Reading the evidence in your letter just shows how erroneous these VA examiners can be. What does it even matter whether or not you had a congenital foot issue when entering the military?  It seems clear based in the evidence that you developed bilateral foot issues while in service. 
 

I had flat feet noted on my entrance exam and had some issues while in active duty. It was noted on my exit exam that I had an abnormal gait.  Being ignorant about how VA disability worked,  I didn’t know I could file all of the issues I had when I was sent to the VA to file claims as part of my out processing. I only filed for an ankle and a varicocele that was aggravated during my service. These were also on my entrance exam. Even then the examiner just told me think of anything that bothered me on active duty. There were others like allergies and sinusitis that I had no idea VA would service connect. 

My initial flat foot claim was denied on an ACE exam because the examiner said I didn’t go to the doctor enough times for it while on active duty.  There is no such requirement on how many time you have to go get seen for an issue.  I asked for a DRO review and it was granted on appeal  

 

There was no evidence of congenital or pre-existing flat feet upon medical entrance exam.

[doc25]

11 hours ago, Berta said:

The citations are very good .

I would have written this differently however.

It looks to me as if the VA did obtain your SMRs ( that would be listed in the decision's evidence list)

However they violated 38 CFR. 4.6 because it appears they did not even read them , even regarding the past denials.

And I would have filed CUE  in April 2019,  probably a day after I got the decision,.

Hopefully the HLR will do the right thing.

CCK had more info than we have here so , I do think it will help,but I will check the Citations, as soon as I get time.

38 CFR 4.6 covers a multitude of legal errors the VA can make . It is my Favorite regulation.

"§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

https://www.law.cornell.edu/cfr/text/38/4.6

Short and sweet.

 

 

Ms. Berta it's always enlightening reading your responses. 

I did find existing medical evidence of record that was not properly weighed; in my electronic medical records via tricareonline, is that "Acquired Pes Planus" was dated April 19,2007 in my medical problem list. My initial diagnosis for Bilateral Pes Planus was 05DEC2006. I ETS'd 14JUL07.

I can provide redacted files to corroborate this for your review.

[deedub75]

15 minutes ago, doc25 said:

There was no evidence of congenital or pre-existing flat feet upon medical entrance exam.

It shouldn't even matter.  You should be service connected either way.  If you entered the service with them knowing you had pes planus and it was aggravated due to your military service then service connection is warranted.  This is what happened my case.  

If you had no problems with your feet when you entered service and developed pes planus while in service and it is in your records then service connection is warranted.  

I don't see the issue here.  When I worked for VA I saw all types of injuries that happened to service members while on active duty that had nothing to do with active service.  The fact is that it doesn't matter as long as it happened while you were on active duty.  I can't count how many claims I worked on where a service member was playing basketball and tore an ACL.  Did it have anything to do with active duty sevice?  No, but it happened while the person was on active duty and they were granted service connection for it.  I had a claim where a guy was bench pressing 80lb dumbbells and dropped one on his face breaking several bones in his face and required multiple surgeries.  When he got off active duty he was service connected for his injuries.  

My issues are more with these VA examiners not following the regulations and throwing in their erroneous rules and opinions with no scientific backing whatsoever.  It took me almost 10 years to get service connected for my knees and back secondary to pes planus even after they finally granted service connection for pes planus.  A nurse practioner first said that I had a normal gait so it was impossible for pes planus to cause my knee and back issues even though my exit exam clearly said I had an abnormal gait.  Then they said my abnormal gait wasn't bad enough even going as far as saying that the 'literature' shows that it's impossible for an abnormal gait to cause knee and back issues. Of course she didn't actually cite the 'literature' because it doesn't exist.  Then they said my knee and back issues were likely caused by my age and me being overweight.  When I filed the claims in 2010 I was like 170lbs and 32 years old.  

[doc25]

9 minutes ago, deedub75 said:

It shouldn't even matter.  You should be service connected either way.  If you entered the service with them knowing you had pes planus and it was aggravated due to your military service then service connection is warranted.  This is what happened my case.  

If you had no problems with your feet when you entered service and developed pes planus while in service and it is in your records then service connection is warranted.  

I don't see the issue here.  When I worked for VA I saw all types of injuries that happened to service members while on active duty that had nothing to do with active service.  The fact is that it doesn't matter as long as it happened while you were on active duty.  I can't count how many claims I worked on where a service member was playing basketball and tore an ACL.  Did it have anything to do with active duty sevice?  No, but it happened while the person was on active duty and they were granted service connection for it.  I had a claim where a guy was bench pressing 80lb dumbbells and dropped one on his face breaking several bones in his face and required multiple surgeries.  When he got off active duty he was service connected for his injuries.  

My issues are more with these VA examiners not following the regulations and throwing in their erroneous rules and opinions with no scientific backing whatsoever.  It took me almost 10 years to get service connected for my knees and back secondary to pes planus even after they finally granted service connection for pes planus.  A nurse practioner first said that I had a normal gait so it was impossible for pes planus to cause my knee and back issues even though my exit exam clearly said I had an abnormal gait.  Then they said my abnormal gait wasn't bad enough even going as far as saying that the 'literature' shows that it's impossible for an abnormal gait to cause knee and back issues. Of course she didn't actually cite the 'literature' because it doesn't exist.  Then they said my knee and back issues were likely caused by my age and me being overweight.  When I filed the claims in 2010 I was like 170lbs and 32 years old.  

Unfortunately, it mattered that the daggum PA that did the BDD, flat out lied about that congenital rationale; resulting in my claim being denied.

I completely agree with you.

Being that the congenital rationale was used, presumption of aggravation ought to have been applied by the flippin' Winston-Salem,NC RO that was assigned to my claim. Then, the Houston RO just went along with that decision....twice.

I'm seeking 1. service connection and 2. the appropriate earliest effective date  due to CUE for my appeal. Winston-Salem RO should've gotten it right the first time.

 

[Berta]

I feel the CUE will succeed---but I really have no idea what the VA will do...

One of my CUEs took almost 8 years before it was set for BVA transfer. It never went to the BVA. Nehmer 2010 happened. The Nehmer VARO awarded the CUE.

If your CUE is awarded that will be the time to go for a better EED.

The entries you mentioned are excellent. You did a lot of leg work on this.

This is excellent: 

 "Acquired Pes Planus" was dated April 19,2007 in my medical problem list. My initial diagnosis for Bilateral Pes Planus was 05DEC2006. I ETS'd 14JUL07."

 

 

[stumpy579]

VBA will always try to use the word "congenital" as evidence the condition pre existed service even though it is not noted on entrance exam or within a short period after entrance. They are wrong and they know it but do it anyway. They try to rebut presumption of sound condition at entrance illegally.

The only prerequisite for the application of the presumption of soundness is that the veteran's entry examination be clear of any noted diseases or disabilities.  See Wagner, 370 F.3d at 1096.  The Court has recognized that service connection may be granted for congenital diseases.  Monroe v. Brown, 4 Vet. App. 513, 515 (1993).  The presumption of soundness applies if a veteran's congenital condition is not noted at entry. See id.  

[doc25]

On 8/11/2020 at 8:29 AM, stumpy579 said:

VBA will always try to use the word "congenital" as evidence the condition pre existed service even though it is not noted on entrance exam or within a short period after entrance. They are wrong and they know it but do it anyway. They try to rebut presumption of sound condition at entrance illegally.

The only prerequisite for the application of the presumption of soundness is that the veteran's entry examination be clear of any noted diseases or disabilities.  See Wagner, 370 F.3d at 1096.  The Court has recognized that service connection may be granted for congenital diseases.  Monroe v. Brown, 4 Vet. App. 513, 515 (1993).  The presumption of soundness applies if a veteran's congenital condition is not noted at entry. See id.  

Here is my entrance medical exam. Hallux valgus is noted above "Normal Archs". I do not contend that hallux valgus is congenital. 

EntranceExam98 (1).pdf

[stumpy579]

12 hours ago, doc25 said:

Here is my entrance medical exam. Hallux valgus is noted above "Normal Archs". I do not contend that hallux valgus is congenital. 

EntranceExam98 (1).pdf 2.4 MB · 2 downloads

Pes Planus can be congenital or acquired. At one time VA would just deny any congenital condition by stating "by its very nature a congenital condition had to  pre existed service". Now there is VA law that says a condition cannot be proven to have pre existed service simply because it is congenital. VBA still uses that "congenital" word to attempt to rebut the presumption of sound condition at entrance even if the condition you are attempting to service connect is not noted at entrance. VBA really wants to rebut the presumption of soundness because then you must prove aggravation. You had normal archs at entry therefore the onerous burden falls on VA. The fact is it is not possible for VA to meet that burden so they attempt to cheat. Your lawyer points this all out in the letter. Hopefully you will get a swift grant of service connection from VBA.

[doc25]

2 hours ago, stumpy579 said:

Pes Planus can be congenital or acquired. At one time VA would just deny any congenital condition by stating "by its very nature a congenital condition had to  pre existed service". Now there is VA law that says a condition cannot be proven to have pre existed service simply because it is congenital. VBA still uses that "congenital" word to attempt to rebut the presumption of sound condition at entrance even if the condition you are attempting to service connect is not noted at entrance. VBA really wants to rebut the presumption of soundness because then you must prove aggravation. You had normal archs at entry therefore the onerous burden falls on VA. The fact is it is not possible for VA to meet that burden so they attempt to cheat. Your lawyer points this all out in the letter. Hopefully you will get a swift grant of service connection from VBA.

My thoughts exactly. Thanks.

[doc25]

HLR review did not go well. Reviewer agreed with the previous denials. It closed and there was no change in ebenefits. Bilateral Flat Feet still remained NOT SERVICE CONNECTED. I'm going to do a supplemental claim because I have new and relevant evidence that was not in the VA's possession over the past 13 years. I barely just found it a few months ago...low and behold electronically; in tricareonline.com. 

RedactedACQUIREDPESPLANUS.pdf

[deedub75]

Did you send in that letter from CCK with your HLR?  When you get your letter in the mail, see if it’s listed as evidence. If it’s considered to be evidence, they would not use it in the new decision. With the HLR, they will not use any new evidence in the new decision.

That letter would have best been sent in with a supplemental claim. 
 

[doc25]

On 8/17/2020 at 7:51 PM, deedub75 said:

Did you send in that letter from CCK with your HLR?  When you get your letter in the mail, see if it’s listed as evidence. If it’s considered to be evidence, they would not use it in the new decision. With the HLR, they will not use any new evidence in the new decision.

That letter would have best been sent in with a supplemental claim. 
 

CCK sent that letter with the HLR 20-0996 form. We'll be submitting a supplemental claim for sure.

I know in every fiber of my being this claim has not been afforded due diligence. It's an injustice. All the ROs ought to have done in Winston-Salem, NC and Houston use the applicable laws and low ball me with a 0% in 2007 and 2016. Instead, here I am denied again...and because of this injustice. I will continue pursuing it until my last breathe. Some people will say to leave it alone, since I'm 100% already. I will not.

It's not my first denial, but this one is a tough pill to swallow. This one is going on 13 years now. I can only imagine what many veterans have gone through and continue to be going through; fighting for their benefits for 20+ years.

I know once it gets service-connected first, I have CUEs to appeal the effective date. 

My apologies for the rant.

[deedub75]

I get what your attorney was trying to with sending your letter in with the HLR.  They wanted to get the claim in front of a DRO whereas a supplement claim puts it in front of a regular rater.  But it's clear in M21-5 that under an HLR, only the evidence already of record will be used so the letter submitted with the HLR is not supposed to be used in the new decision.  

I think you will win with the supplemental claim but it sucks that it will prolong things for you.  I had to do the same and it really didn't take that long.  I submitted my supplemental claim on February 3, 2020, and after 10 years of fighting, these claims were finally granted on March 17, 2020. Too bad that made February 3, 2020, when my some of them go back to October 2010.  I filed an HLR on April 27, 2020, to have the effective date corrected and they corrected the effective dates this month.  I'm waiting on retro to hit the account.  

[doc25]

13 hours ago, deedub75 said:

I get what your attorney was trying to with sending your letter in with the HLR.  They wanted to get the claim in front of a DRO whereas a supplement claim puts it in front of a regular rater.  But it's clear in M21-5 that under an HLR, only the evidence already of record will be used so the letter submitted with the HLR is not supposed to be used in the new decision.  

I think you will win with the supplemental claim but it sucks that it will prolong things for you.  I had to do the same and it really didn't take that long.  I submitted my supplemental claim on February 3, 2020, and after 10 years of fighting, these claims were finally granted on March 17, 2020. Too bad that made February 3, 2020, when my some of them go back to October 2010.  I filed an HLR on April 27, 2020, to have the effective date corrected and they corrected the effective dates this month.  I'm waiting on retro to hit the account.  

Wonderful news for you. I know my flat feet are rateable at 30%, but knowing how it will go, I probably will get 0%. LOL.