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

[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