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Va Doctor Did Not Have Service Medical Records


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5 replies to this topic

#1 nanaeris

 
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Posted 07 November 2010 - 12:10 PM

I am in the process of going through the Appears process for an increase for bilateral knee disability. I think some of you will remember when I asked about a CUE claim about 6 month ago. I have been going through my C-File for evidence. I was discharged in November 1974. I filed a claim in 1975. I am looking at the VA C&P exam results for Osgood Schlatters Disease. The Rating Decision stated the Evidence of Record is insufficient to substantiate the clain aggravation of veteran's pre-service knee condition and the Veterans was hopitalized for myocarditis subsequent to to service. In 1999 when I reopen the case. The VA wrote me and ask me if I had a copy of my Service Medical Records because they would have to send and request them from the Air Force. I am getting the impression from this that the 1976 decision was made without my service record. I am considering filing a CUE claim based on the fact that all the evidence was not before the Rating specialist. I was granted service connection in 2001 after a long and hard fight. Also when the VA denied me for Myocarditis they fell to realize that the claim was filed within the presumptive period. My understanding is this condition is considered to be one of the presumptive condition and the VA failed to recognized this. Although I was considered to be one of the lucky ones be cause I did not have any permanment damage to my heart i was still disabled for about 3 months. Although the VA still denied my claim in 1999 I won the case on appeal. At the time I did not know about asking for an eariler effective date. My question is should I asked the V A to CUE themselves and with this kind of clear evidence, do you think the VA will still try to drag this out because it is very clear they did not have my service medical records and made a decision without this knowledge. Any advice with be greatly appreciated. I don't think I will be able to CUE this claim until I get through the current appeal concerning my knee disability. This involve where the VA had rated my knee disability un range of motion using limitation of flexion but my last C& P exam the doctor stated my range of motion under limitation of extension is limited to 20 degrees which would give me 30%. I did not think this would be such a problem if the doctor stated this in his C&P exam report. Any insight on the range of motion limitation which change for flexion to extension. I can't see the problem and the VA will not give me a clear and percise answer. this has been going on over 3 years. When I responded to the SSOC, I pointed out to the VA what the chart they had on the SSOC stated and that if another DC in this case 5261 would give me a higher rating the VA should revied the rating and what the GC stated about rating knee disabilities. I know this is the wrong forum for the last part of this topic but I have learned so much and how much research is required is to get the VA to get it right from this web site and froums. Thank again everybody for all the help. Since I join this form my percentage has went from 40% to 60%.
nanaeris

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#2 carlie

 
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Posted 07 November 2010 - 12:19 PM

nan,

I think you would be going about it the wrong way in filing a CUE claim for your EED.

If you have SMR's / STR's that were not of record in the original decision, that
are strong enough to have gotten an issue granted SC, then I would file a 21-4138
and refer to 38 CFR 3.156 © and request the EED due to these records.

CUE is a much harder ladder to try and climb.

JMHO,
Hope this helps a vet.

#3 Chuck75

 
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Posted 07 November 2010 - 02:17 PM

Actually, if your claim(s) were static, (no change etc.) --- After a number of years, the VA may return your service records to the custodians. (Usually at the ST Louis Mo center) I was able to sort of trace mine from an original VA medical records request, then back to the repository for several decades, then to the VARO that is handling my current claims. It's really difficult to prove that the VA did or did not look at the appropriate records in making a decision. Often, a statement of case (SOC) is a cut and paste document, with language so general that it's actually almost useless to a veteran. I always felt that the repository should send the VA a "certified copy" rather than the original document. Fairly recently, the service record custodians were complaining that the VA was returning incomplete service records to them.

I am in the process of going through the Appears process for an increase for bilateral knee disability. I think some of you will remember when I asked about a CUE claim about 6 month ago. I have been going through my C-File for evidence. I was discharged in November 1974. I filed a claim in 1975. I am looking at the VA C&P exam results for Osgood Schlatters Disease. The Rating Decision stated the Evidence of Record is insufficient to substantiate the clain aggravation of veteran's pre-service knee condition and the Veterans was hopitalized for myocarditis subsequent to to service. In 1999 when I reopen the case. The VA wrote me and ask me if I had a copy of my Service Medical Records because they would have to send and request them from the Air Force. I am getting the impression from this that the 1976 decision was made without my service record. I am considering filing a CUE claim based on the fact that all the evidence was not before the Rating specialist. I was granted service connection in 2001 after a long and hard fight. Also when the VA denied me for Myocarditis they fell to realize that the claim was filed within the presumptive period. My understanding is this condition is considered to be one of the presumptive condition and the VA failed to recognized this. Although I was considered to be one of the lucky ones be cause I did not have any permanment damage to my heart i was still disabled for about 3 months. Although the VA still denied my claim in 1999 I won the case on appeal. At the time I did not know about asking for an eariler effective date. My question is should I asked the V A to CUE themselves and with this kind of clear evidence, do you think the VA will still try to drag this out because it is very clear they did not have my service medical records and made a decision without this knowledge. Any advice with be greatly appreciated. I don't think I will be able to CUE this claim until I get through the current appeal concerning my knee disability. This involve where the VA had rated my knee disability un range of motion using limitation of flexion but my last C& P exam the doctor stated my range of motion under limitation of extension is limited to 20 degrees which would give me 30%. I did not think this would be such a problem if the doctor stated this in his C&P exam report. Any insight on the range of motion limitation which change for flexion to extension. I can't see the problem and the VA will not give me a clear and percise answer. this has been going on over 3 years. When I responded to the SSOC, I pointed out to the VA what the chart they had on the SSOC stated and that if another DC in this case 5261 would give me a higher rating the VA should revied the rating and what the GC stated about rating knee disabilities. I know this is the wrong forum for the last part of this topic but I have learned so much and how much research is required is to get the VA to get it right from this web site and froums. Thank again everybody for all the help. Since I join this form my percentage has went from 40% to 60%.
nanaeris



#4 nanaeris

 
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Posted 07 November 2010 - 06:49 PM

This was my orginal and first claim when the doctor made the decision and did not refer to my Service Medical Records. I thought after the first decision was denied the information would have been added to my C-file. The doctor and the Rating specialist did not refer to any thing in my Service Medical records. The doctor stated he did not have enough information to determine if my supposely pre-existing osgood schlatters disease was aggravated or not by military service. As for the heart condition, the only thing the doctor stated was he could not determine if I had permernat damage from rheumatic fever. In other words it was possible but he could'nt tell. I thought after the inital determination the information was part of the C-file. On this matter of the supposely Osgood-schallter disease the doctor stated this was unusual for a individual of my age to have osgood-schllatter disease because I was 24 years old. This is another matter I would to know about. I went into the Air Force when I was 20 years old my induction Physical did not indicate I had any thing wrong with my knees. I had other problems with my knees such as patella tendonistis, chondromalacia from injuries during some type of training and playing basketball. I had been in the military 2 1/2 years before the doctors told me I had this condition and I had it before I entered the military. The only thing I told the doctors when they asked me whether I had any knee injuries before I entered the service and I stated I injuried my knee while playing basketball when I was in the 11th grade. How they got osgood schlatters disease from this I don't know. Although I had seen orthropedics doctors for my other injuries and had x-rays they didn't state I had this condition. It was 2 1/2 years latter that the doctor at the Air Force clinic in Okinawa told me I had this condition. When I went to March AFB for an evaluation by another Orhopedic doctor he stated I had chondromalacia and patella tendonistis. The two MEB stated the condition was permanment aggaratavate by military service and after a hospital stay was able to return to duty and to wait for orders. Then they call me back to the hospital and told me I would have to finish my tour in Okinawa. The treating orthropedic doctor stated I was able to return to work without any limitations. I was then sent back to the barracks to wait for orders. After about 2 weeks I was called back to the hospital and told I would have to wait for a PEB. The PEB disagreed with the two MED and stated I had this condition and it wasn't aggravated by military service. I was told about five years ago the reason this happened the military was downsizing after Vietnam and the just found a way to get you out of the way with out paying you disability retirement because they had rated my knee disability at 20% and didn't rate my hearing loss although it appeared on my profile as a 2 which mean they knew about it and they didn't rate the heart murmur discovered while I was stationed in Okinawa because if they had rated either one at 10% combined with the 20% for knee disability they would have had to give you disability retirement. So what they did is stiffed you. If all this is true is there any thing I can do about it or is it two late and I just have to keep fighting with the VA? It is very easy to prove that I didn't have Osgood-schlatters disease before I entered the military and hearing loss and heart murmur is part of the record.
Thank you again,
nanaeris

#5 Berta

 
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Posted 08 November 2010 - 10:50 AM

If the VA made a legal error in any past denied claim you have had, then you could file a CUE claim on it.

The error however must have manifestly altered the outcome-

meaning their error cost yo compensation.

There is considerable info here on CUE claims and many BVA decision posted that show how they can succeed and why many fail.


It has to be a legal error in a final decision that involves the regulations at time of the alleged CUE.

This was my orginal and first claim when the doctor made the decision and did not refer to my Service Medical Records."

Were they missing? If so the recent post here in Claims Research regarding Evidence (from Allan) might help you.

Or search hadit for "newly discovered Service Records" as this might be better approach then CUE claim.

#6 carlie

 
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Posted 08 November 2010 - 12:51 PM

Sec. 3.156 New and material evidence. (a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. (b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of Sec. 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. © Service department records.(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph © of this section are met; (ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim. (2) Paragraph ©(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. (3) An award made based all or in part on the records identified by paragraph ©(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. (4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.






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