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Interesting, nanaeris. I've had the same experience with emailing the Waco director. No response. By contrast, the director of VA in Dallas took immediate action. I sent a feedback letter (Talk to the Director) stating positive observations, but giving factual data about 8 months of going for appointments on five issues I named when first enrolled with no treatment for any of them, several mistakes mostly due to communication, and one exam by a resident who would rather have been surfing. Responses from staff were concerned, professional, and action oriented. I've accomplished more in the last two months that in the previous eight. Waco RO also didn't get a very good report on the last inspection. This might help with some ideas: http://www.vetsforjustice.com/C&P%20Service%20Clinician%E2%80%99s%20Guide.htm There is also a worksheet for joints examinations. You should be able to google VA C&P examination worksheets and find it. If not let me know and I'll chase down the link. I think the latest one is dated 4-20-2009. The worksheet for joints is about 5 pages long and has specific questions for the examiner to ask. It's a good guide for looking at the exam you got and where it might have missed something important. You can also send a request for info release and have the clinical notes sent to you plus written evaluations of x-rays and mri's ( you'll need a medical dictionary for these or a lot of patience with googling.) I think the form is VAO-710, but you can also write a letter. I'd suggest using "all written information, clinical notes, patient file records,....etc. both specific and general descriptions that might include what you want, so they can't wiggle out of giving it to you.

I'd like to nominate the Waco RO for Most Innovative Solution to pesky claims for the first quarter of this year. After filing a motion for Cue, in June of 2010 CUE was admitted. However, it was then treated as a routine claim, not a motion for CUE. I was scheduled for a C&P by a PA who led me to believe he was an MD. I heard nothing for over a year. Then I received a letter scheduling a second C&P. The exam was set in Ft. Worth at 3 pm. Due to the distance, the time, and the location, and driving difficulties, I called the number on the letter. I spoke with an individual who graciously rescheduled the exam for Dallas and cancelled the Ft. Worth appointment. I went to the exam in Dallas in July, 2011, and, two days after the exam, an MRI scheduled by the examiner. Seven months later, I still had heard nothing so I asked my rep to check. He told me the RO showed I had cancelled the appointment, but that if I was willing to reschedule they'd work on my claim again. Fortunately I had saved the emails with my rep in which I'd informed him of the letter and the change. He remembered and notified the RO. Again, the RO apparently allowed the file to sit. In December, 2011, I again asked my rep to check. The RO again stated I'd cancelled the exam and if I was willing to rescedule it, they'd work on my case. I also signed the waiver and sent documentation in a request for expedited adjudication (January, 2012). By February of 2012, the file still had not been sent with apparently no action yet taken by the RO. On February 29, I received a Supplemental Statement of the Case again accusing me of not reporting for the 2nd C&P, despite the fact that the results of the MRI, requested by the examiner, could be found with a search of the VA information system. I also had requested and received copies of written results of the MRI, though no one could find the clinical exam notes. The SSOC cited 3.655 and threatened arbitrary denial of the claim. I located a management analyst in the C&P department who was able to locate the missing information within 24 hours. He notified my rep, who in turn notified the RO; the RO required me to submit a new Form 9. Who knows who's doing what to whom and how many times at this point. So, the Waco RO gets the nomination for creativity, maximization of irresponsibility, redirecting blame for failures onto the claimant, clever innovations in claims processing, and might even win awards at the national level if they try really hard, or at least a part-time position at the local college teaching denial and accusation 101.

I found a 2007 DVA letter to all ROs stating that whenever a rating decision grants service connection with an effective date retroactive 8 or more years, the claims folder must be "flashed" and cautioning that these rating decisions were not to be offered to any veteran's representative. How can I find out if these procedures were followed with my claim? I also have questions regarding VSRs, SVSRs identifying claims meeting the criteria, and Referral Memorandums for C&P Service review. Does anyone have any information, experience, etc. with this? Thanks.VA Flash letter 1.pdfVA Flash letter 2.pdfVA Flash letter 3.pdf

I've sent out emails and left voice messages today. So, now it's Tag, You're It. What does this move do to your time in limbo, John?

A friend sent me a cartoon once, with my name inked in underneath. It was a picture of a crane, mouth open, with the frog's head and arms still visible poking out of the bird's mouth. The frog had both hands firmly planted around the crane's neck. Along the top it said: Never Give Up. I believe it. What happened with the 10% down to 0% was a lazy, or incompetent, or, (surely, I jest) malicious VA employee who probably laughed as he inked in stolen verbage from my pre-enlistment physical stating I'd had a satisfactory recovery from a 1973 surgery to my right knee and that I was qualified for service and presented it as his own words, representing such 1973 information to be valid in 1979, without the intervening years, four of which were problem free, and two frought with mulitple problems directly resulting from two injuries to the right knee while on active duty and documented in clinical records. The 10% down to 0% for the left knee was because of a fabricated condition that had never before existed, but somehow magically appeared just for the purpose of his denial of my claim. (This has been corrected with CUE, but then watered down to nothing again because they changed the effective date to 2011.......and we've accused them of not being efficient!) Never mind that no physical examination was conducted to support such erudite and clever decisions. (Ahhhhh, to live in magic land.) He literally copied the reasons qualifying me for service, and stated them as reasons for denial of the educational benefits I had applied for, simultaneously wiping out the MEB/PEB, medical record history, and all the years between 1973 and 1979. In one fell swoop the VA wiped out not only 20% disability, but, effectively, service connection as well. When I was no longer required to walk from the parking area to the ferry or launch, then all the way across Ford Island to the sub. trg. ctr., having to stand all day to teach, and descend two levels of stairs as gravity took control of the coffee I consumed, and then reversing the trek to go home, I experienced a little bit of respite from previous complications. Unfortunately, it was short lived. When work demands increased, complications also increased, and have continued to do so for three decades. But, VA says my life didn't continue after 1979 because they have no evidence of it, and of course, they have no evidence because they severed the relationship. And now, here I am at their door, waving a black flag with shining skull and crossed bones, and growling, "Argggggggggggg". Yes, I have noticed in this journey a frequent need to consult both medical and legal dictionaries, and realize I am not fluent in either language. And it is a language, that if you are not up to speed on, failure is likely lurking around the next corner, which is why I brought my question concerning legal representation to this forum. Maybe I should start a little contest here to help me with my quest. Please answer the following questions: My attorney is the best because_________________________________________________________. And, please include contact information. Thanks, I really do appreciate your input.

Good morning, I've already sent in the form 9. I did, however, write the arguments, instead of relying on my VA rep to compose them. It's probably too long to try to copy onto here, but I hit each argument, disagreement, complaint, etc. separately with relevant regs, laws, etc. and cited precedent court cases. What I'd like to address, somewhere, with some entity, is the fact that the pre.enl physical language was copied into the 1979 denial as if it were current information instead of 5 years old and the present dialogue keeps that in play instead of the MEB/PEB language and medical records. That was fraud. The problem I see is that you can't make chicken salad out of chicken manure. The copied material has played prevalently into every aspect of the current disagreements, etc. I don't know how to get the incorrect data bounced. Your suggestion about the procedural error, no notification for reduction/serv. con. severence, etc. seems to be most valid. I'm a little disappointed that I've requested the c-file before without response. I'm thinking I will call my rep this morning and find out if obtaining it can be expedited, or if he can provide it faster.

3:30 am, one nice cup of coffee into the morning, It's nice to have an internal alarm clock. I'm ready to go! you said: "10% to 0% amounts to a reduction in rating". Thank you, that's what I've been saying all along. Another major concern to me is the copying/misrepresentation of records. Before I started this process, I first obtained my med. recs. which included the pre-enl physical. The Colorado denial (from 1979) is copied from that document which amounts to fraudulent use of the information, plus the fact that no phys. exam. was performed for the determination. Is there a way to challenge that more directly/blatantly?

Thanks. All suggestions gratefully received. With all of their smoke and mirrors, I am more than willing to lock and load. How do I go back at their inappropriate actions other than the Form 9? I tried to hit them with everything I could think of, including accusing the first board of fraud, which, in fact, it was. I'm really put out that in this last gambit, they went back to square one. I expect to get a letter any day informing me that I've now been dropped from group 3. I've thought about who I could write to for help (I'm sure I'm not the first) Any and everything I can do, I will do. What other steps can I take? What do I need to do to send an IRIS? I found the website and will read through it in the morning when I'm not so tired. Looks like another of those wade through the words things, so I need to be a little more alert.

Thanks for the well thought out response. I have a pretty good feel for the hampster wheel at this point: 1979: Medical/Hon. Dischg.: The first denial (1979) copied verbatim from the pre-enlistment physical without performing a physical examination, and concluded that the 20% sevice disability rating should be dropped to 0%, because of previous chondromalacia of left knee and residuals from surgery (1973) on the right. Filed timely NOD' I kept insisting in 2010, that it should not be considered as a new case, but re-opening the old case on the basis of CUE. This was filed for me by my rep. My contention was that proper procedures were not followed, copying the pre/enl physical and presenting it as current information to 1979 was a substantial error, fraudulent, a mistake of fact, and a mistake of law. *June 14, 2010 Decision: DECISION 1 . The decision to deny service connection for chondromalacia left patella was clearly and unmistakably erroneous; therefore, service connection is established with an evaluation of 0 percent effective February 13, 1979. 2 . No revision is warranted in the decision to deny compensation for residuals, meniscectomy right knee. Again, appealed 10% disability rating resulting in separation reduced to 0%, on basis of inappropriate reliance on pre-enl phys. for determination without phys. exam., etc. on left knee and no acknowledgement ofhaving experience no difficulites with right knee for five years (three on active duty) until two documented injuries to the rt. during active duty service. Rt. knee was stable prior to enlistment, only began to dislocate after injuries, aggravation due to duty requirements documented in med. rec. Same things here, failure to follow procedures, Mistakes of facts and law. *June 30, 2010 decision: 1. Determined service connection for right knee with 0% disability, effective date Feb. 13, 1979, with statement: "The law says VA can't pay for disabilities that are less than 10% disabling." 2. Assigned 10% rating for left knee, but changed effective date to Aug. 19, 2010. Stated that August 19, 2010 (date of examination of the left knee only) was the effective date because the examination was the "first evidence showing manifestations meeting the criteria for a compensable evaluation". I argued that the exam was not the first evidence; it was confirmation that the 1979 conditions still existed for the left knee through 2010 and disagreed with changing the effective date. I appealed the decision on the rt. knee because injuries and aggravation to the right knee were well documented in med. rec.'s from 1979 and because at no time after discharge had the right knee been examined by the VA since I had been mistakenly denied, the condition still existed as a direct result of injuries during active duty service, therefore, the VA had not met its burden of proof required in part 2,citing the following: “The VA General Counsel issued a precedent opinion holding that to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show, by clear and unmistakable evidence, (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). CUE on right knee based on documented injuries and aggravation, medical records that document increase in severity. *April 21, 2011 Stmt of Case: 1. Denial of service connection for right knee disability , by VA rating dated August 28, 1979 is not/ws not CUE. 2. No change is warranted in the 0% evaluation from Feb. 13, 1979 through Aug. 19, 2010, or the 10% evaluation from Aug. 19, 2010, for the service connected left knee chondromalacia. It looks to me like the slate was basically wiped clean, disregarding establishment of 1979 effective date due to timely filed NOD, medical documentation is still absent in decision language, facts of injuries are not considered or incorporated. I filed the Form 9 well within the time limits and listed all the decisions with specific arguments, cited procedural errors by numbers, copied related court decisions by designations and copies of text, and Congressional mandates regarding the issues, along with the actual use of pre-enl. physical in lieu of medical records being fraudulent. (More, but too much to copy here.) I tried to keep this short. I realized, reading the last (Apr. 21, 2011) that the way the arguments were relayed might not have been as I specifically stated them, so I wrote the text for the form 9 and was assured that my rep copied it and sent it as I wrote it. I asked for a copy of the C-files, but have not received them. I sent another email this morning asking for a copy of the file or info on how to obtain the file.

The primary issue on my mind currently is whether to allow time and wait for the form 9 determination or to go ahead and seek counsel. That is the decision I need to make now. What I'm most interested in is anyone with similar experience who has prevailed without hiring an attorney. Although I think my responses in this last disagreement were stated with regard to actual facts, backed up with legal notations that apply, and relevant cases cited, I also know it is a quarmire and those without legal degrees are easily stomped on. Yet, with what is at stake, it is still a major decision for me and very different from business law which I'm used to dealing with. I also have not been able to find any statistics related to the issue, hence, I'm hoping someone has or knows of relative experience. Thanks.

Sorry, that wasn't intended to be a serious apurtenance. Was just being facetious.

Somehow I managed to miss out on this entire discussion I didn't notice that I needed to check a box for immediate response, so thought it was dead in the water until I stumbled back on it today. Please excuse what must have appeared as total rudeness. My apologies. From Berta: “in 1979 with MEB ratings of 10% on each knee for injuries incurred while on active duty.” How did that older decision account for the MEB evidence? Did they consider it at all?" The 1979 regional office denial included verbatim copies of phrases taken directly from the pre-enlistment physical that qualified for induction. This information from 1975 was presented as if it was current to 1979. They further reduced the percentage, effectively severing benefits. I filed a notice of disagreement at the time, but was told by the VA representative on campus not to bother with appeal as it would be denied. I can find no reference, verbage, or any other indication that the medical record was used. Otherwise they would have discovered two separate dates of new injuries to the right and two for the left knee. These four injuries occured and were documented as occuring during active duty along with treatment, proposed surgery that at the time they could not guarantee with any certainty that operating would improve the problems nor any certainty that it might not make it worse.

Yeah, I have read about that but it's not the case here. The first regional office just plain fubared.

I don't yet have a copy of the claims file, so I don't know exactly what was actually written by my rep. I've taken an active part in the responses through emails to him, but have requested a copy of the file from him or info on how to get it. On the last one where they zeroed out everything decided previously, they simply listed as evidence: VA rating decision dated August 28, 1979, Claims file, and VA examination dated August 19, 2010. You might get a little bit of an idea from what I replied to Carlie. I tried to find a regulation, law, court precedent, or any official statute that related to my specific situation and referred them back to the clinical records and away from the 1979 fiasco. I don't know if that will be helpful to you, but maybe. My arguments were: 1. There had never been any injury or difficulty with the left knee prior to documented injuries while on active duty. 2. The 1979 decision copied the pre-enl physical, presenting information from 1975, without consideration of intervening factors, such as two documented injuries to the right knee and aggravation caused by requirements of the job. 3. The MED/PEB rated the disability as 10% for each knee, 20% total. The 1979 decision removed the rating without following proper procedures and without benefit of physical examination. 4. The effective date by law and by virtue of timely notice of disagreement filed is Feb. of 1979. 5. The 2010 VA exam only confirms that disability related to injuries is still present and that the 2010 exam does not establish the "first evidence" as alleged. 6. Specific procedures required by law were not followed (part of the response below). 7. VA decisions were multiple mistakes of fact, mistakes of law, and violations of procedural requirements and statutory mandates. Also, figuring they certainly were going to wade through entries in the medical records, I copied each visit with the date and complaint. This is a quote from the response that I sent to my rep and that he said he copied and forwarded as part of the disagreement. After writing this, I copied the regulations/laws/etc. that pertained (also included in the response to Carlie.) The claims record from Veterans Administration Regional Office, Denver, Colorado, September 11, 1979 contains statements used for denial of educational benefits that are undeniable Mistakes of Fact, Mistakes of Law, and Violations of Statutory Mandates. These mistakes and procedural misapplications have been consistently and inappropriately repeated in the current disability claims for injuries and aggravation occurring during active duty, especially, but not limited to, the right knee. 1. The denial letter states: ““The evidence above shows that the residuals of your meniscectomy, right knee, and chondramalacia, left knee cap, existed prior to your entry into the military and were not aggravated by service.” a. The author of this document copied verbatim from the Pre-Enlistment Physical to arrive at this determination, with no official organizational history, without including and indisputably failing to consider facts available and documented by medical records during service and in violation of procedure. These are Mistakes of Fact, Mistakes of Law, and failure to apply proper procedures. b. No physical examination was employed in the determination. c. There was no difficulty with Rt. knee subluxation in the five year history (1973 to 1978) until the documented injury on June 1, 1978 and on August 13, 1978 with subsequent documented aggravation. d. This denial, without benefit of physical examination and with improper application of statutory mandates, further, inappropriately reduced the established rating of 20% to 0%.