V.A. did not locate their own records - CUE

[WomanMarine]

Okay, now that I have been at this for over a year, I am now starting to understand the V.A. 

I was medically discharged in 1975 with a recurrent dislocating patella with a DoD rating of 10%.  I started having problems, as noted in my SRT, in my 10th week of boot. It was not till a year later, when bowling @ Leatherneck Lanes, that my patella completely dislocated, tearing ligaments and my meniscus.I was seen the next day in Ortho, with a 'grossly sublexed patella' and subsequently discharged for this condition.

Two months later I landed a job with Southern Pacific Railroad. About a month into the job, again, my knee went out on me causing me to 'crash and burn' at work. I was seen that evening at the V.A. and referred to Ortho, who placed me in a full leg cast for six months. Because of this I lost my job at the railroad 

I then applied for Vocational Rehabilitation and put on the form that I was 10% disabled. I did not realize that it was a DoD rating v. a V.A. rating. I was subsequently denied, but it was never explained to me the difference of DoD v. V.A. Again in 1980 my patella went out on me, again tearing my meniscus and ligaments. I went to the V.A. and was X-rayed, which showed torn ligaments. I then applied for V.A. disability. I was denied, but did not know this till recently and why, as I was homeless and did not receive the notification.

According to the V.A. they submitted form VAF 21-526. They stated that I "did not receive subsequent treatment for my injury since my discharge." Which was obviously untrue, as I had been seen by the V.A. for this injury only four years earlier, only three months after my discharge, and lost my job because of it. 

Today the V.A. cannot find the records of my 1975 - 1976 6 month Ortho rehab.

I can understand losing them 42 years later, but not 4 years. 

I am hoping my claim is wrapped up with the V.A. within the next month, as I had my final C&P last week for my back. I have three discs that are protruding, one is on a nerve. This is due to my gait being off for the last forty years, because of my SC knee.

OH and my SC knee, they rated at 30% and took it away as they said that it was a prior injury to service and was Service Aggravated.  

During the Ortho exam, after the 1975 accident on base, I stated that, once as a teen my knee gave way running track. For all I know, I could have stepped on it the wrong way, as my patella never dislocated and tore ligaments ... But the V.A. now insists it is Service Aggravated and gave me 10% for arthritis. After I was service-connected and applied for an increase, the examiner that rated my knee recently amended the exam and said that, because my condition is so severe that my left knee must now be included, as well as a bilateral factor, as I have arthritis in that knee, as she said, because of my gait. And she ordered an MRI of my Lumbar. The MRI shows DDD from S1 L1-L5. And specifically L4-L5 which I was recently told that I will need surgery, as they are compressed and pressing on a nerve.

Recently I located my physical fitness entrance exam and it makes no note of ANY issues and passes my lower extremities. I believe, because of this that the 30% for my R knee, that was denied should be awarded?

Do I have a CUE from the 1980 error?

Thank you for reading my question?

Oops ... I posted this question a few months ago: 

The V.A. is driving me nuts! 

 

Edited February 2, 2018 by WomanMarine
clairity

[pwrslm]

Treatment records of your knee should include xrays from 75 and when you were at the VA after discharge.  Get copies. ST Lois archives, request specific dates and location for this. Call them for instructions, they are helpful when you need it like this. VA retires XRays also, inquire how to get your VA xrays also from after your discharge. Neither of these would be deleted, just filed in a different place.

Get the statement that the VA has no records from 1975. If they find the XRays, you have proof. You also can use lay  statements about this if you have family members who can testify that you hurt your knee. They can also support your statement that your knee was no problem before enlistment. Without objective proof that the entrance exam was in error and that your knee had real problems, the lay statements should at least make this issue in equipoise, meaning in a tie, that you win direct S C instead of aggravation.

You were assumed fit at the entrance exam. your knee had no problems. In your statement you indicated that you hurt your knee before but had no damage before enlistment was made in good faith, and it also asserts that you had no actual injury significant enough to be noted. (People fall down and hurt their knees all the time without any injury!) They are not allowed to jump to medical conclusions that way. Get your CFile, check their records. If they have no records showing any disability before your enlistment, and have no medical opinion that a knee injury existed before enlistment, then the RO made a medical decision and that is a CUE. For the RO to  take a statement that your knee hurt without any other evidence, to assume that the entrance exam was bogus, and that your knee issue is only aggravated by service is a huge leap of logic that MUST be based on evidence. Your entrance exam proves your knee was not an issue, he has to have more than your statement because that statement denies injury of that nature.

Steps for CUE must show 

• (1) Claim must be a "closed claim" also known as a "final decision" for a CUE review.  The finald decision must be from the VARO, Veterans Administration Regional Office, or the BVA, Board of Veterans Appeals and was never appealed, and
• (2) either the correct facts were not before the adjudicator or the statutory or regulatory provisions in existence at the time were incorrectly applied; and
• (3) the error is "undebatable;" and
• (4) the error must make a difference in the outcome. In other words, a CUE is not a disagreement with a decision or an argument that VA got it wrong.

Edited February 2, 2018 by pwrslm

[Vync]

Just a thought, but have you ever requested a copy of your claims file (C-file) from the VA? It is a great way to see exactly what the VA actually has. I did this and found records they claimed to not have, plus records belonging to another veteran which I mailed back.

[WomanMarine]

1 hour ago, pwrslm said:

Treatment records of your knee should include xrays from 75 and when you were at the VA after discharge.  Get copies. ST Lois archives, request specific dates and location for this. Call them for instructions, they are helpful when you need it like this. VA retires XRays also, inquire how to get your VA xrays also from after your discharge. Neither of these would be deleted, just filed in a different place.

Get the statement that the VA has no records from 1975. If they find the XRays, you have proof. You also can use lay  statements about this if you have family members who can testify that you hurt your knee. They can also support your statement that your knee was no problem before enlistment. Without objective proof that the entrance exam was in error and that your knee had real problems, the lay statements should at least make this issue in equipoise, meaning in a tie, that you win direct S C instead of aggravation.

You were assumed fit at the entrance exam. your knee had no problems. In your statement you indicated that you hurt your knee before but had no damage before enlistment was made in good faith, and it also asserts that you had no actual injury significant enough to be noted. (People fall down and hurt their knees all the time without any injury!) They are not allowed to jump to medical conclusions that way. Get your CFile, check their records. If they have no records showing any disability before your enlistment, and have no medical opinion that a knee injury existed before enlistment, then the RO made a medical decision and that is a CUE. For the RO to  take a statement that your knee hurt without any other evidence, to assume that the entrance exam was bogus, and that your knee issue is only aggravated by service is a huge leap of logic that MUST be based on evidence. Your entrance exam proves your knee was not an issue, he has to have more than your statement because that statement denies injury of that nature.

Steps for CUE must show 

• (1) Claim must be a "closed claim" also known as a "final decision" for a CUE review.  The finald decision must be from the VARO, Veterans Administration Regional Office, or the BVA, Board of Veterans Appeals and was never appealed, and
• (2) either the correct facts were not before the adjudicator or the statutory or regulatory provisions in existence at the time were incorrectly applied; and
• (3) the error is "undebatable;" and
• (4) the error must make a difference in the outcome. In other words, a CUE is not a disagreement with a decision or an argument that VA got it wrong.

I am in agreement. Since I now have a 'pending claim' for which they denied me in 2017 and I had to NOD, they made the same error TWICE!

I have finally pieced this all together, as it has been years, but I did receive the 1980 decision, where they actually took away my SC! 

I just uploaded a SOC that includes my 1974 Physical, as well as the 1980 decision. They gave me 0% in 1976, after I had another 'episode' and lost my job; three months out of service. When I applied for Compensation in 1980, they then took it away!  At that time I was told that I could not 'sue' the VA aka .gov. 

And again last year they made the same mistake and I had to NOD. Then they gave me 30% and took it away as stating it was an 'existing injury' prior to service (see my 'other' post' for verbage). 

In my SOC that I submitted today I asked that they give me an earlier effective date as well the 30% rating with that date.

I really hope that this does not 'slow' down my 'Hardship claim' as I am having financial difficulties. But I do want the VA to FINALLY get it right! 

Thank you for your response and service!

Semper Fi!

[WomanMarine]

1 hour ago, Vync said:

Just a thought, but have you ever requested a copy of your claims file (C-file) from the VA? It is a great way to see exactly what the VA actually has. I did this and found records they claimed to not have, plus records belonging to another veteran which I mailed back.

Yes I have but it is not due till after they decide this pending claim. I believe I have all the pertinent documents to prove CUE.

Thank you for your comment and service!

Semper Fi!

Edited February 2, 2018 by WomanMarine
clarity

[pwrslm]

That's a sticky issue. The CFile contains info that could prove your case, yet they refused to give you that? I would get hot and nasty on that issue fast. A FOIA must be complied with. They can take time to get it done, but it must be complied with either way.  Your CFile is not a classified document, and contains information that you should have access to because it exposes the VA screw ups. How long ago did you file for it?

If its been some time, you might be able to do a writ of mandamus that forces them to give you a copy of the CFile. Read up Asknod website about this.

 

Edited February 2, 2018 by pwrslm

[WomanMarine]

25 minutes ago, pwrslm said:

That's a sticky issue. The CFile contains info that could prove your case, yet they refused to give you that? I would get hot and nasty on that issue fast. A FOIA must be complied with. They can take time to get it done, but it must be complied with either way.  Your CFile is not a classified document, and contains information that you should have access to because it exposes the VA screw ups. How long ago did you file for it?

If its been some time, you might be able to do a writ of mandamus that forces them to give you a copy of the CFile. Read up Asknod website about this.

 

My Cfile: Estimated Completion: 02/18/2018 - 05/14/2018.

Pending claim: Estimated Completion: 02/18/2018 - 03/12/2018