HLR Found Duty to Assist Error but still denied my claims

[Christopher Robinson]

I had my degenerative disc disease and flat feet bilateral claims denied, submitted a higher level review and a duty to assist error was found. The letter said there was a favorable finding for both and that a qualifying event, injury had an onset during my service and my service record shows I had a profile for both but yet still no increase in my percentage. They couldn't find really any of my records from when I was in the Army or from my deployment to Iraq and said my records were minimal at best. How is it my fault that the Army lost my records! I'm so sick of the VA and it's very discouraging to have to go to the next step of hiring a lawyer apply for the board appeal, its already been almost a year and a half, now this will take a least another year at best. Has anyone else had this happen to them as well? Any suggestions? One thing I was reading that I thought would help me is the presumptive law for my conditions being able to be tied to my service because I served in a war zone in Iraq also my C and P exam for my flat feet, the doctors said they condition was due to my service but I guess I'm wrong.

 

Any help or direction from my fellow Veteran would be greatly appreciated.   

[GBArmy]

Christopher Are you saying you had a disability for bth but applied for an increase and that is what was denied? Not sure what you have going on. War zone isn't presumptive for your back or feet disabilities. I suggest you redact your personal info on the decision letter and post it to this thread.

[Christopher Robinson]

I haven't yet been approved as them both it being rated as service connected, they were both denied on my initial claim, so I submitted a HLR but it was just closed and I haven't actually gotten that decision letter yet but when I called they said if I were to get a service connected rating that I would see the percentage increase on my ebenefits page but beyond that they said they couldn't tell me anything and I had to wait for the letter. I guess I should wait for the letter before I say it was denied but with what they told me regarding ebenefits, that if i did get rated as service connected I would see it on my page I'm assuming that they were denied.

 

I was trying to upload images to this post but it says it needs to be a URL, is there a different way to  upload it?

The letter says the following:

1. Higher Level Review for Lower Back Degenerative Disc Disease.

The issue for lower back degenerative disc disease was returned for correction of a duty to assist error in the prior decision. We failed to get federal records. We will develop for a final notification letter.

Favorable Findings identified in this decision:

The evidence shows that a qualifying event, injury or disease had its onset during your service. Your service reserve treatment records show you had a low back pain profile as of January 2010.

You have been diagnosed with a disability. You were diagnosed  with degenerative disc disease at the VAMC on February 2018.

2. Higher Level Review for pes planus (claimed as bilateral fallen arches).

The issue for pes planus was returned for correction of a duty to assist error in the prior decision. We failed to get federal records. We will develop for a final notification letter.

Favorable Findings identified in this decision:

The evidence shows that a qualifying event, injury or disease had its onset during your service. Your service reserve treatment records show you had a profile for pes planus as of January 2010.

You have been diagnosed with a disability. You were diagnosed  with pes planus at a VA Exam dated November 23, 2020. ( this was my C&P exam but I was I really was diagnosed early 2006 when the VA mad custom inserts for me but the VBA is telling me the VA don't have those records, so not only did the Army lose my records but also the VA) 

 

[Whodat]

I am curious of the outcome of this posting. I am basically in the same predicament. 

[Rivet62]

See my response to Whodat.

Edited January 18, 2022 by Rivet62
Deleted, old post out of date. I placed response to a newer question on this thread. (see edit history)

[Rivet62]

8 hours ago, Whodat said:

I am curious of the outcome of this posting. I am basically in the same predicament. 

On 5/3/2021 at 12:20 PM, Christopher Robinson said:

"I really was diagnosed early 2006 when the VA mad custom inserts for me but the VBA is telling me the VA don't have those records"

Same here. I had seen the prosthetics department at my VAMC for shoe inserts, and I see none of that action in my VA health records. Maybe you should call the prosthetics department at your VAMC?  And don't take the word from a clerk there because those positions have rapid turnover. Ask to speak to a supervisor in the prosthetics department who knows the filing system (archived or not).

Like I said, I had seen the prosthetics department at my VAMC for shoe inserts, and I see none of that action in my VA health records.  But, when another VA primary care doctor (I switched doctors) later made a referral for VA authorization for shoe inserts with an outside provider then that showed up in my VA medical record. Why the difference I don't know, but when I went to the VAMC prosthetics department they seemed to have an internal filing system and they acted more like logistical fulfilment. They might have record of what was ordered or what was depleted from inventory to provide your inserts. Like I said, ask the prosthetics department supervisor or department head.

Edited January 18, 2022 by Rivet62 (see edit history)

[broncovet]

The Board looks at your records and then makes a determination "if you meet the Caluza elements" for Service connection.  

Criteria:  Caluza elements

NON criteria:  Whether or not VA loses your records.  

    The VA losing your records "does not" guarantee you will be awarded any benefits, unfortunately.   Instead, it often increases the difficulty for the Veteran to obtain benefits.  

     The burden to show you meet the criteria is "on the Veteran", not on the VA.  Yes, they have a duty to assist, but that does not mean they can fill in a missing nexus or in service event for you.  

Its very difficult to get around the caluza elements.  Get them, win benefits, lack any one of the 3 and get denied.  

To reiterate:

Caluza elements:

1.  Current diagnosis.  (This is not the same as a diagnosis in service, as a diagnosis in service is not required).  

2.  In service event or aggravation. 

3.  Nexus, or medical opinion, your diagnosis is at least as likely as not due to an in service event.  

    When I left the service, I was given a packet of my records, and they suggest not losing them.   I lost em anyway.  Yea, I should have kept them, but I was too young, and did not get it, and too disorganized.  

Yea, a copy of those are supposed to be sent to the NPRC, but key word "supposed to be".  Even if they are sent their, NPRC can lose them, and, they can get lost after NPRC sends them to VA.  This is why you need to keep your copy, and NOT depend on your adversary (VA, which is supposed to be a non adversarial system), to not lose your records.  

    It would be like, if you are suing your neighbor, tell him to keep all your records proving you owe him money.  Yea right.  

FACT:  VA has a vested financial interest in losing your records and delaying your claim.  Remember, no claims are paid out where there is insufficient documentation.   This is exactly why VA was caught shredding Veterans evidence in the "October" incident several years ago.  

Edited January 18, 2022 by broncovet (see edit history)

[Tbird]

https://www.hadit.com/caluza-triangle-defines-necessary-service-connection/

 

 

 

 

[Berta]

I am a civilian with severe bilateral pronation that requires me to pay from $350 to 545 every year or more for new custom inserts. This is one thing neither CHAMPVA nor Medicare will pay for.. even though Senior orgs  say one out of every 3 seniors will fall each year and pronation causes a major  balance problem.

You said:

" ( this was my C&P exam but I was I really was diagnosed early 2006 when the VA mad custom inserts for me but the VBA is telling me the VA don't have those records, so not only did the Army lose my records but also the VA) "

I have never seen a custom-made insert from the VA, and have been shown by vets, the cheap crappy inserts they had gotten from VA for a myraid of foot and balance problems-

and I suggest based on the decision you posted from,that you seek a private podiatrist who will not only provide custom inserts ( at a charge like my Podiatrist does- that I need to pay myself, and will give you treatement that could prevent the situation from geiing worse because it will.

But again I am making the mistake of opining on part of their decision.

You can scan and attach the redacted decision here.

Go to the scanner (cover your C file #m nae, address, first, scan and name the scan, then go to the Drag files here or Attach thing at bottom of the reply page ,and choose the bamed scan you want us to see, ...I just treied it myself to make sure I told you th way to do it- the Presidentil Unit Citation was awarded to my husband's unit in Vietnam -USMC 1stMarDiv.1st Amphibious Tracktor Battalionm Rolling Thunder, etc.

He never knew he had it- ony rumors in the unit at Quantico but somene told him to apply for a DD 215 and the PUC and other awards he never knew he had appeared on the DD215.

He died not too long after getting the DD 215 but at least he knew all awards he had gotten.

 

 

 

 

 

 

Presidential Unit Citation (United States) - Wikipedia.pdf

[Berta]

This is an older thread but important and I wonder if the originl posted tried to get his SMRs and VA medical records himself. When VA says they cant find reords, in my opinion they might not even be looking for them.

Rivet is right about contacting the prosthetics department-

[Rivet62]

13 hours ago, Berta said:

He never knew he had it- ony rumors in the unit at Quantico but somene told him to apply for a DD 215 and the PUC and other awards he never knew he had appeared on the DD215.

He died not too long after getting the DD 215 but at least he knew all awards he had gotten.

Heart breaking. Just wow.

13 hours ago, Berta said:

I am a civilian with severe bilateral pronation that requires me to pay from $350 to 545 every year or more for new custom inserts. This is one thing neither CHAMPVA nor Medicare will pay for.. even though Senior orgs  say one out of every 3 seniors will fall each year and pronation causes a major  balance problem.

A friend had told me that some Walmarts have a machine that you step on and it analyzes pressure points on your feet and creates shoe inserts. I never used it, because it cost $50 and I didn't have it at the time, but she swore by how well they worked. This was back in 2015.

13 hours ago, Berta said:

I have never seen a custom-made insert from the VA, and have been shown by vets, the cheap crappy inserts they had gotten from VA for a myraid of foot and balance problems-

Yeah their crappy inserts made things worse. I got my VA primary care doctor to make an outside referral to an orthopedic appliance company for better fitting inserts, and I was appalled at how bad they were. Not custom at all. So it's a podiatrist I need to see, and maybe I can get VA to cover that if I can get my VA doctor to make a referral.

Berta, why is this thread not showing up in new Recent Posts when we have all these new comments? Maybe I'm missing some sort of setting. 

[Berta]

I dont know why- if you get Notifications ( I think the Notification setting is in your profile pages, you will get alerts as to replies on your recent posts, here and in email.

I use that but often I just go to the 'unread content' link at top right hand of the pages here and click on it.

[blahsaysme2u]

On 1/18/2022 at 7:56 AM, broncovet said:

The VA losing your records "does not" guarantee you will be awarded any benefits, unfortunately.   Instead, it often increases the difficulty for the Veteran to obtain benefits.  

     The burden to show you meet the criteria is "on the Veteran", not on the VA.  Yes, they have a duty to assist, but that does not mean they can fill in a missing nexus or in service event for you.  

Its very difficult to get around the caluza elements.  Get them, win benefits, lack any one of the 3 and get denied.  

To reiterate:

Caluza elements:

1.  Current diagnosis.  (This is not the same as a diagnosis in service, as a diagnosis in service is not required).  

2.  In service event or aggravation. 

3.  Nexus, or medical opinion, your diagnosis is at least as likely as not due to an in service event.  

i wish that this was taught to you when you join the military. they harp on keeping copies of everything but no one ever talks about medical records....we always focused on awards and money and orders....no one ever talks about getting and keeping medical record copies for when you get out! should be taught in basic...and reviewed ever year in your unit. 

alas, you are not alone guys and gals...lots of us have had them lose our records...some of us happen on records years later and are fighting now to get SC...dont lose hope!

[blahsaysme2u]

On 1/18/2022 at 8:40 AM, Berta said:

This is an older thread but important and I wonder if the originl posted tried to get his SMRs and VA medical records himself. When VA says they cant find reords, in my opinion they might not even be looking for them.

THIS TOO!!!

when i first got out in 2008 i was denied on all claims bc lost service records....then in 2012 they magically "found" some and scanned them in...fortunately for me i got a letter saying "we revied your claim and SC due to records found" and i didnt have a huge fight...but they didnt find everything- hence my fight today on multiple issues....

but the point stands- and i said many times in the past- i dont think they ever even tried to get them...and then i think someone was cleaning out files and said "hey here is so-and-so records, maybe we should mail these off since hes been out since 2008" 

[ArNG11]

I gotta comment, well because I just can't help it,   Whether misplacing, records not found, misreading, not acknowledging, altering, cut and pasting, placing a blank sheet over concrete evidence, and altering the copies, shredder-gate, it is all the same game, Delay, Deny, and hope you die",  ooh never mind that sounded better in head than when I wrote it down and read it.  But I hope you get the jest.  My apologies, morbid sense of self, in any case.  That is the game,  "They " have been at it for centuries, or century, I don't know if we have proof going back that far, interesting notion, though, in any case, sadly and truthfully, gotta hate the game.  But that's where, unity, well and when it comes down to it, being battle buddies, born of the same fire, living, sadly, and dying by the swords we helped bare, that is how we will win.   

Im trying to be encouraging and spark that fire in all us, so, please bare with me.  Never mind my attempt at sounding encouraging and somewhat intelligent, bad cliché s and all,  I hope,  in all seriousness, because I am serious, as I can get, that WE continue to change the unjust process. It's slow, but you sure as heck can't say it is not steady in positive change, the race will be won.  I believe this, with all that is left of my mind, heart, and yup even soul, dare I post, as I lost faith somewhere along the way.  Together we will complete the mission.