I took a SWING!

[MyCorps]

Veterans,

Greetings. You will never know how helpful the information in this forum has been over the years. Your assistance and feedback helped me get rated @70% in 2015. Since then, I qualified for VRE and am about to finish a Masters degree. Truthfully, however, my employment situation has been a huge struggle with my earning beings around $9,000 per year. That is another story though. 

I need to throw something out here for feedback and thoughts (in general). I was looking through records with respect to past claims the VA denied (1995, 2007, 2008) prior to the 2015 approval. I separated from my beloved Marine Corps in 1994 and put a claim in several months later. One injury (knee) was denied along with the others. I grabbed copies of this particular injury during the SEPS process and still have them. I submitted them in 2015 and received a 10% rating. I read about CUE claims, case law, and VA Appeals on the subject however, this seems to be murky, situation specific, or rare to get approved.

I said what the heck and submitted the CUE Claim, with the aforementioned evicence (denial letter 1995, approval 2015, and oroginal medical records) and laid the case out in writing. The V.A. had access to my personnel records in 1995 when they denied but approved in 2015 with no new evidence. Here is what was different, I never received an exam in 1995, they just said no. I further read the V.A., back then anyway, had no "duty to assist" but today it is different or do I miusunderstand?

Is this a potential CUE claim? Either way, I took a swing!

 

[broncovet]

Welcome back.  We dont know if you have A CUE issue of merit or not, without reviewing your file.  However, specifically exclueded from CUE are issues of "duty to assist".  Those are considered "harmeless errors" and do not rise to the level of CUE.  Not all errors are CUE.  Cue is a specific kind of error.  But, do NOT THROW IN THE TOWEL YET.  

CUE is not always the best way to persue an appeal.  I consider it the last resort.  The biggest reason is that the VEteran "gives up" the benefit of the doubt with CUE, but he does not with other methods.  And, I dont recommend giving up the BOD unless there is no other way.  

There are several other methods, again, most of these would mean reading your file to find the best one(s) for you.  

ONE way is to file a new supplement claim, for the same disability.  If awarded, and you dont like the effective date, you can appeal that effective date.  

VA has discrection on whether or not to order a c and p exam.  There simply is no requirement for them to do so.  They wont order a c and p exam if a c and p exam wont change the outcome, such as if you dont have the requiste discharge.  They also wont order a c and p exam, also, if you already have the evidence to award.  Lastly, they wont order a c and p exam if the c and p exam "wont fix" a problem such as a Caluza element.  As an example, if you have no "in service event" (Caluza element 2), then you cant have a nexus because the nexus is a link between an event in service and your current diagnosis.  No event in service, no nexus.  You must have an event in service to have a nexus, you can not manufacture a nexus at a doctors office, if you dont have an in service event.  

Another way, is new and relevant evidence 38 cfr 3.156.  You stated they had all your evidence, but do you really know the evidence the va had at that time?  I sure dont.  In the "evidence section", the VA is often vague.  For example they sometimes say things like, "Your medical file from Jan. 1, 1970 to Dec. 31, 2023".  That is pretty vague.  Frankly, I doubt the VA has every peice of medical evidence on you from the past 53 years.  

They may have bits and pieces.  But did they have that "key evidence"?  Maybe,  maybe not.  Remember, the VA got caught shredding Veterans evidnece documents in October 2008.  They did it many times, but got caught just once.  

One smart way to do it is to send your decision(s) to a great law firm and ask them if they can find an earlier effective date.  This is what cue is about:  the effective date.  It isnt about proving va wrong.  That is hopeless..they think they can do no wrong.  I think they get it wrong about 90% plus of the time, because around 80 percent of BVA decisions are remanded or awarded, showing there was something wrong.  But, more were wrong because they were never appealed, or were appealed in a DRO or HLR, or at the CAVC or other appeal levels.  So, about 90 percent of VARO decisions have at least one error, this is something va never admits to.  

 

 

[Lemuel]

I am waiting to see the briefs of CCK filings before the BVA.  I never received a copy of the brief of the Attorney for my 2017 BVA Decision.  

I picked a lot of things out of my records and referenced them in briefs and motions for my next BVA hearing.  But I never got the hearing.  Instead the (I believe the clerk did not want to do the work, she called me and was working from home during COVID) the Judge slammed me into AMA and ignored all of my briefs and motions under 38 CFR 21.1000.

The CAVC remanded the case to the BVA from a conference joint motion.  That is where I am now with CCK but other issues have arisen also.  

I submitted evidence that the DRO and RO were limiting the examinations done by QTC and the other C&P examination contractor that prevented the issue from being addressed by examination.

I submitted evidence to the CAVC that the VA GC used an after the fact examination order by a DRO (undated with evidence of a contact memo contrary to the undated exam order) and the CAVC would not discipline the attorney or do anything with the issue.  "Facts are the 'jurisdiction' of the BVA", not the CAVC.  So back to the BVA with that also I hope.

Yes, if we really go through everything, errors show up in process as well as, in my case, a failure to order the required injury examinations on my first claim and having "presumptive access" to evidence in inpatient records that was not in the VA file until years later and would never have gotten there if someone had not lost my file and to rebuild it the file from the California Rehabilitation Department was used to rebuild my VAHA medical records.

There are a lot of reasons for an earlier EED for my TBI.

There is a remand from the 2017 BVA Judge to the AOJ about "tinnitus" that was not developed with the TDIU claim that was also remanded for extra schedular evaluation by the BVA Judges referral to the AOJ to develop the issues for the extra-schedular submission to the Director, Compensation Services.

I wish others with tinnitus, would ask the BVA to remand for extra-schedular work up, tinnitus.  Not being able to get a Navy forklift operator's permit while I was in the Navy due to noise trauma tinnitus, recorded in my military record points out the safety issue with tinnitus severely limiting job opportunities, especially those with motor skills that could otherwise obtain high paying jobs in industry.  A person cannot even get a dishwasher dishwashing job because of the need to be able to hear the beeping signals that are mask by tinnitus for most that have tinnitus.  Safety is a big concern for forklift operators.

Everyone with tinnitus, who gets turned down for a job because of hearing, should get a written letter from the job if possible and submit a claim for a higher rating via the extra-schedular route.

CCK has not shown me anything yet to assure me they are following up on everything in the previous remands that were not addressed plus my SMC(possibly T) claim that has been added.  And my deceased wife's SMC claim.

Now PCAFC appeals to the BVA will be harder to deny by the BVA based upon "medical denials" by VAHA.  CCK just called me and cleared up the issue.  The VAHA was saying you could appeal to the BVA in your PCAFC denial but the appeal, according to Beaudette V McDonough Order were futile because medical examinations could not be challenged and PCAFC denials were considered a "medical examination".

I am hoping this decision will open up my claims against the inadequate examinations for EED.  No CUE possible in these.  Just reasonable assessments of the medical files considering the medical file as a whole by the C&P examiners.  No more limited examinations, I hope.

[broncovet]

Ir sounds like you have great legal representation, who has read your file and we have not.  You posted:

Quote

CCK has not shown me anything yet to assure me they are following up on everything in the previous remands that were not addressed plus my SMC(possibly T) claim that has been added.  And my deceased wife's SMC claim.

If CCK law did everything the exact way you expected, then you may not need an attorney!   Instead, you are paying them for their expertise which would include emphasizing and going for issues likely to suceed, while dismissing issues you thought were liquid gold but the law firm's expertise showed them to either be moot, or not to be worth persuiing or even contrary to the main goal of getting you additional retro.  Not one law firm I hired (and I hired 3) did the case the way I would have, but each was successful in getting additional retro.  So, I decided Im not ready to be a lawyer yet, and, if I am, I can do what Ben Kraus did, and that is go to law school.  Since Im way too old for that, I did a good job vetting my law firms then trusted them to do it their way not my way.  

Yea, its tough to keep our peace.  We think the law firm should file this or that, and they dont.  But, they have been down this road thousands of times.  I can assure you cck law are not newbies in Veterans law.  

My advice is to trust them with the result, and hold them accountable.  Indeed they already are accountable, as they dont get paid if they dont get you a "w" and only then a percent of the retro.  Be a help to them dont try to tell them how to do their job.  I doubt you want to compete with them...they are some of the best.  Sometimes they did not persue ideas I thought were good because it would wind up "spinning mud and going nowhere".  They would rather "take the high ground" and stay out of the mud, and follow the smoothest easiest path to the retro, and stay out of the side mudholes that look good to us, but do nothing but delay and get our vehicle muddy and waste time.  They know where those mudholes are, because they have been down this course thousands of times and they avoid those mudholes, that look great to us that we want to jump in.  They look like swimming holes to us, but are really bog traps.  

[relatively happy camper]

I believe most law firms are in it to win.  However, that has the caveat that they make the most money for the least work expended.  I used CCK probably about 15+yrs ago and they won me a remand at COVA/CAVC (EAJA paid)and then quit.  I continued my appeals and won my claim retro to 1989 for SMC "s."  It was worth my time, perhaps not theirs.  I used another atty during that time after CCK and he won another remand (EAJA paid) and finally a BVA judge made the proper decision.  If the VA would just adjudicate claims properly, think of the money that could be saved.  But of course, some people wouldn't have work, then.  jmo

[Lemuel]

My request for a letter from CCK waving a fee on the "class action PCAFC" that is before the CAVC Order now is being sent.

Yes, Bronco, that is my curiosity.  Which of the motions and items in my brief will CCK pursue.  And after the BVA Decision I will decide which to go to the CAVC with if they do not take any to the CAVC.  I will give them my 2 bits on my reasoning, especially with this CAVC decision that at least some "medical decisions" are reviewable.  For instance the decision to put me on Tegretol in 1990 after confirming partial and complex partial seizures, including "atypical absence seizures" which were a contra-indication for Tegretol per the 1990 PDR.  And after I self-weaned off Tegretol because it was making me worse, changing my diagnosis to "pseudo seizures" which were Un compensable then.  A second contra-indication for Tegretol was my sensitivity to amitriptyline per the 1990 PDR.  The question for the CAVC is does the Beaudette & Beaudette v McDonough, CAFC Affirmed CAVC decision and order make these medical decisions reviewable when they are clearly contrary to the Physicians Desk Reference on pharmaceuticals?

How about the failure to follow 38 CFR guidelines on the first medical examination orders for in service injury claims?  How about limitation of examination orders because a claimant did not specify a minute detail as in tinnitus and decibel hearing loss instead of "trouble hearing"?

I think a new door has been opened in appeals by the Beaudettes.

I raised those issues before the BVA before being slammed into AMA and getting a remand from the CAVC to hopefully consider them.  The BVA is the sole fact finder.  If the BVA denies the fact that I had epilepsy with a nexus in the hospital in 1969 in spite of the application of those items detailing how examination and treatment is supposed to be done,  then the citation of Beaudette is my only hope at the CAVC.

Edited March 14 by Lemuel

[broncovet]

Veterans have an opportunity to sue doctors for malpractice, such as prescribing medications when in conflict with existing standards.  However, this route is different than the route for appealing Veterans benefit claims.  One way to do this is an 1151 claim.  While I do not speak for CCK law, they may or may not elect to practice law involving medical malpractice, which is seperate from appealing Veterans benefit claims.  You can discuss this with them, and/or persue medical malpractice with or without your benefit appeals claim.  I see them as seperate issues, but, again, Im not competent to provide that legal opinion.  And, you should not base your decison on my lay opinion.  

Ditto for Medical Exams.  VA has 2 seperate units:  VHA (Veterans Health) and VBA (Veterans Benefits).  While there is some overlap, methinks that seperation is on purpose.  VBA, including the Board of Veteans Appeals does not control VHA who controls medical exams.  Indeed many exams are performed by third parties, and VA is slow to point out they are not responsible for third party exams.  Indeed, "just because" you go to a VAMC and someone sees you with a white coat and a badge, does not guarantee that medical professional is a VA employee.  I have herd horror stories of Veterans who have sued VA for medical malpractice, only to find out that health care practioner was not an employee, but a contractor.  They found that out too late, because the statue of limitations ran out before the suit could be refiled against the the contractor.  VA, in my opinion, deliberately hides behind this "third party" contract, and gets away with malpractice..by hiring "contractors" instead of "employees"   Further Vets are not informed of this, often until its too late.  

     I would not be a bit suprised if CCK law is "all over this", and may.already know this person you allege malpracticed on you is a contractor, not a VA employee.  There is a way to find that out..and Im sure CCK law knows how to do just that, "if" indeed, they do medical malpractice claims and I have no idea if that is an area of law of which they choose to practice or not.  Law is very specialized, and I have no idea whether CCK law has expanded their legal practice to include malpractice or not.  Im only aware that they represent Veterans for benefit claims.  You would have to discuss that with them.  

    For most law firms which choose to specialize in benfit claims to VA and not branch into malpractice, they usually simply hire an IMO to refute a "unfavorable" medical opinion.  This appears to be Standard procedure in benfit claims, but, again, Im not compentent to render a legal opinion on that, either.  Of the law firms Im familiar with, they simply dont get involved with medical malpractice, if they dispute the medical opinion, they hire their own doctor to render a more favorable opinion.  The VA gives the doc a Presumptive..the presumptive is the doc did his job, and did it well, including his/her opinions.  Absent a conflicting medical opinion, the VA doc medical opinion will stand as written.  Further, lay opinions (such as mine) can not refute medical opinions.  ONLY medical opinions can refute medical opinions.  So, I or CCK law could type 990 pages of why that doc was wrong, and it probably would never even be read, because neither CCK law, nor myself, nor president Biden is compentent to offer a medical opinion to refute another doctors competent medical opinion.  ONLY another doctors medical opinion can refute a medical opinion.  

Im just trying to help.