Is this a CUE

[mrstephens11]

If I claimed to be rated for chondromalcia(knee)  and I'm given a rating for flexion limitation and the VA didn't give me a rating for instability, but my knee does give out.  Is it a CUE that they didn't try to give me a rating for instability?  I have evidence of falling from my knee giving out in service and since then.  Can some one cite some case law that would apply to them not giving me a rating even though I didn't exactly claim it?

 

Thank you,

Mike

[Berta]

If you didn't claim it, then there were  no results from any C & P exam in which to rate it. Nor any diagnostic code.

Two of my past CUE claims involved no rating at all for my dead husband's heart disease and HBP ( and AO DMII but I filed that as a direct SC claim-not CUE )

But these lack of ratings and diagnostic codes resulted from VA malpractice and the evidence  of malpractice was in VA's possession  for 6 years before my husband died.

This is different from your question but I wanted to bring up that a lack of rating and diagnostic code,in some cases, is certainly a CUE.

And of course for Nehmer veterans , that falls under Footnote One- Nehmer, explained in our AO forum.

 

[mrstephens11]

Thank you Berta, you are so helpful!

[mrstephens11]

I found this at https://www.law.cornell.edu/uscode/text/38/5103A

Quote

38 U.S.C. § 5103A (3) (B) Duty to Assist

For purposes of this paragraph, the term “maximum benefit” means the highest evaluation assignable in accordance with the evidence of record, as long as such evidence is adequate for rating purposes and sufficient to grant the earliest possible effective date in accordance with section 5110 of this title.

 

That looks like a CUE to me.  I'm going to try it along with another one.  This is on a decade old claim so I can't NOD.

Cheers,

Stephens

[mrstephens11]

I'm going to throw this in my CUE as well.  It talks about case law that says they have to help my find claims based on the evidence.

VA has a duty to fully and sympathetically develop a Veteran's claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations," Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004).