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mytime34

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About mytime34

  • Rank
    E-3 Seaman
  • Birthday August 17

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  • Military Rank
    E-4 Sgt

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  • Service Connected Disability
    70
  • Branch of Service
    USAF
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    Computers and Mustangs

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  1. Berta, Ever since my first filing I have been fighting the va to rate my knees correctly. The first denial was back in 1997 and the VA said there was no evidence, it took me 2 yrs of private dr visits, Xrays, MRIs and therapy and showing that before I went in I had a clean bill of health. Initial approval for service connection was granted 1/25/1999, but they rated both knees together at 10%, which is wrong each knee should have been separate, on 2/2/2000 they changed my rating to 20% bilateral knees. I filed an NOD that the effective date was still wrong they should have gone back to my filing in 1997 due to having to provide proof that my knees were SC. I filed for re-eval and effective dates and was denied in 2000, 2003, 2005, 2007, 2011, 2013. I did not fully understand the appeal process and I was working on my own, as the local VSO was no help at all and I was not sure who to turn too. In 2013 I had reached the limits with my knees and had surgery on the left knee, I was given 100% short term rating from surgery and than my rating when back to 20% bilateral knees. In 2015 I filed again and that is when they found the CUE that my knees should have been rated at 20% per knee due to "locking, swelling and pain". My contention is that in my military medical records there is clear evidence of knee issues (which I am SC'd for) and that the VA should have granted SC dating back to 1997. I was really caught off guard when the VA found the CUE and back dated to 2013, specially since I have been providing evidence that the locking, swelling and pain have existed since the beginning. I am going to review all of my military and private records in my C-file, along with each of the denial letters and the laws that were applicable from 1997 to 2013. I am also going to file a CUE on the effective date for the knees and as another forum member posted I will highlight in red all of the records that show the knee issues over the years. Thank all of you again for the responses and I think I have a idea of where to go and how to get there.
  2. Here is the response to cancelling the NOD We have determined that we cannot accept your letter as a Notice of Disagreement. The issue of an earlier effective date for your bilateral knees has been finally decided and/or dismissed on several occasions and was not included in the rating decision which you identified on your correspondence.
  3. I received this for the left and the right knee, but I am only posting one. Issue/Contention Degenerative Arthritis of the Right Knee (Previously evaluated as, posterior horn of the medial menisci) Claimed as bursitis, tendonitis and arthritis (previously DC 5010-5260) Old % N/A New % 20% Effective Date Feb 6, 2013 Explanation: An evaluation of 20 percent is granted whenever the semilunar cartilage is dislocated with frequent episodes of “locking,” pain and effusion into the joint. Clear and unmistakable errors are errors that are undebatable, so that it can be said that reasonable minds could only conclude that previous decision was fatally flawed at the time it was made. A determination that there was a clear and unmistakable error in a prior decision that would change the outcome, then that decision must be revised to conform to what the decision should have been. In this case, a retroactive increase for the degenerative arthritis of the right knee (Previously evaluated as, posterior horn of the medial menisci) Claimed as bursitis, tendonitis and arthritis (previously DC 5010-5260) is granted as the previous decision was a clear and unmistakable error. A clear and unmistakable error is found in the evaluation of the degenerative arthritis of the right knee claimed as bursitis, tendonitis and arthritis and a retroactive increase evaluation to 20 percent disabling is established from February 6, 2013. A clear and unmistakable error (CUE) is an error that is indebatable, so that reasonable minds could not differ. A determination of CUE must be based on record and the law that existed at the time of the prior decision. Such error must have been prejudicial to the claimant. Once a determination is made that there was a CUE in a prior deciont that would change the outcome of that decision that decision must be corrected so as if the former error had not been made. A review of your claim and VA examination dated June 11, 2013, showed that your right knee should have been evaluated as meniscal tear with frequent episodes of locking, pain and effusion into the joint. There was no limitation of range of motion, nor objective evidence of painful movement of the knee. As I stated before my military medical records do show locking, popping, swelling and pain in both knees, along with dr notes and my own written notes from 1997-2013. The only reason I filed again in 2013 is that my left knee hyperextended and I had to have surgery on my left knee. I had debridgement done and bone spurs removed. It was also noted that I have a bakers cyst on my left knee
  4. Berta, Thank you for your response. I called back to the VA lady "Susan" about my NOD being removed and she stated that the CUE they found was for the decision from 2013, it was incorrect and they retrod my rating back to 2013. She also stated that I could not file an NOD for the effective date. Which it seems like she is wrong. I am going to file a CUE for the effective date and the change in rating that was backdated to 2013. Thank all of you for your responses.
  5. Hello All, I was just contacted by the Indiana VA and was told that my NOD for the effective date is not warranted and they removed my appeal. It was stated by "Susan" that the effective date back to 2013 was due to the claim decision was less than a year old and at that time the knee issues were overlooked and that is how the VA found the CUE. She also stated that you cannot file an NOD for effective dates. I am in the process of going through my military medical records, my records since discharge, along with the XRays and MRIs for my CUE letter.
  6. Hello All, I am a 41yr old disabled vet (70%) Degenerative Arthritus of the left Knee 20%Degenerative Arthritus of the Right knee 20%Degenerative Disc Disease of the Lumbar Spine 10%Radiculopathy Right Lower Extremity 10%Radiculopathy Left Lower Extremity 10%Degenerative Tears, Bilateral Knees 20%Tinnitus 10% This exam was scheduled 1 week after my back surgery (Fusion of L4/L5). Hip and Thigh Conditions Disability Benefits Questionnaire Is this DBQ being completed in conjunction with a VA 21-2507, C&P Examination Request? [X] Yes [ ] No ACE and Evidence Review ----------------------- Indicate method used to obtain medical information to complete this document: [X] In-person examination Evidence Review --------------- Evidence reviewed (check all that apply): [X] VA e-folder (VBMS or Virtual VA) 1. Diagnosis ------------ a. List the claimed condition(s) that pertain to this DBQ: B/L HIP STRAIN DX 9-16 SECONDARY TO LUMBAR SPINE COND. b. Select diagnoses associated with the claimed condition(s) (Check all that apply): c. Comments (if any): No response provided d. Was an opinion requested about this condition (internal VA only)? Yes 2. Medical history ------------------ a. Describe the history (including onset and course) of the Veteran's hip or thigh condition: 16 W/U DX AS ABOVE PAIN STANDING B/L MRI WNL. TX MEDS. b. Does the Veteran report flare-ups of the hip or thigh? [ ] Yes [X] No c. Does the Veteran report having any functional loss or functional impairment of the joint or extremity being evaluated on this DBQ (regardless of repetitive use)? [ ] Yes [X] No 3. Range of motion (ROM) and functional limitations --------------------------------------------------- a. Initial range of motion Right hip --------- [ ] All Normal [X] Abnormal or outside of normal range [ ] Unable to test (please explain) [ ] Not indicated (please explain) Flexion (0-125): 0 to 90 degrees Extension (0-30): 0 to 30 degrees Abduction (0-45): 0 to 45 degrees Adduction (0-25): 0 to 25 degrees Is adduction limited such that the Veteran cannot cross legs? [ ] Yes [X] No External Rotation (0-60): 0 to 60 degrees Internal Rotation (0-40): 0 to 40 degrees If abnormal, does the range of motion itself contribute to a functional loss? [ ] Yes, (please explain) [X] No Description of pain (select best response): Pain noted on exam but does not result in/cause functional loss If noted on examination, which ROM exhibited pain (select all that apply)? Flexion Is there evidence of pain with weight bearing? [ ] Yes [X] No Is there objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue? [X] Yes [ ] No Is there objective evidence of crepitus? [ ] Yes [X] No Left hip -------- [ ] All Normal [X] Abnormal or outside of normal range [ ] Unable to test (please explain) [ ] Not indicated (please explain) Flexion (0-125): 0 to 90 degrees Extension (0-30): 0 to 30 degrees Abduction (0-45): 0 to 45 degrees Adduction (0-25): 0 to 25 degrees Is adduction limited such that the Veteran cannot cross legs? [ ] Yes [X] No External Rotation (0-60): 0 to 60 degrees Internal Rotation (0-40): 0 to 40 degrees If abnormal, does the range of motion itself contribute to a functional loss? [ ] Yes, (please explain) [X] No Description of pain (select best response): Pain noted on exam but does not result in/cause functional loss If noted on examination, which ROM exhibited pain (select all that apply)? Flexion Is there evidence of pain with weight bearing? [ ] Yes [X] No Is there objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue? [ ] Yes [X] No Is there objective evidence of crepitus? [ ] Yes [X] No b. Observed repetitive use Right hip --------- Is the Veteran able to perform repetitive use testing with at least three repetitions? [X] Yes [ ] No Is there additional loss of function or range of motion after three repetitions? [ ] Yes [X] No Left hip -------- Is the Veteran able to perform repetitive use testing with at least three repetitions? [X] Yes [ ] No Is there additional loss of function or range of motion after three repetitions? [ ] Yes [X] No c. Repeated use over time Right hip --------- Is the Veteran being examined immediately after repetitive use over time? [ ] Yes [X] No If the examination is not being conducted immediately after repetitive use over time: [ ] The examination is medically consistent with the Veteran?s statements describing functional loss with repetitive use over time. [ ] The examination is medically inconsistent with the Veteran?s statements describing functional loss with repetitive use over time. Please explain. [X] The examination is neither medically consistent or inconsistent with the Veteran?s statements describing functional loss with repetitive use over time. Left hip -------- Is the Veteran being examined immediately after repetitive use over time? [ ] Yes [X] No If the examination is not being conducted immediately after repetitive use over time: [ ] The examination is medically consistent with the Veteran?s statements describing functional loss with repetitive use over time. [ ] The examination is medically inconsistent with the Veteran?s statements describing functional loss with repetitive use over time. Please explain. [X] The examination is neither medically consistent or inconsistent with the Veteran?s statements describing functional loss with repetitive use over time. d. Flare-ups: Not applicable e. Additional factors contributing to disability Right hip --------- In addition to those addressed above, are there additional contributing factors of disability? Please select all that apply and describe: None Left hip -------- In addition to those addressed above, are there additional contributing factors of disability? Please select all that apply and describe: None 4. Muscle strength testing -------------------------- a. Muscle strength - rate strength according to the following scale: 0/5 No muscle movement 1/5 Palpable or visible muscle contraction, but no joint movement 2/5 Active movement with gravity eliminated 3/5 Active movement against gravity 4/5 Active movement against so me resistance 5/5 Normal strength Right Hip Rate Strength: Flexion: 5/5 Extension: 5/5 Abduction: 5/5 Is there a reduction in muscle strength? [ ] Yes [X] No Left Hip Rate Strength: Flexion: 5/5 Extension: 5/5 Abduction: 5/5 Is there a reduction in muscle strength? [ ] Yes [X] No b. Does the Veteran have muscle atrophy? No response provided c. Comments, if any: No response provided 5. Ankylosis ------------ Complete this section if the Veteran has ankylosis of the hip. a. Indicate severity of ankylosis and side affected Right side: Left side: [ ] Favorable, in flexion at [ ] Favorable, in flexion at an angle between 20 and an angle between 20 and 40 degrees, and slight 40 degrees, and slight abduction or adduction abduction or adduction [ ] Intermediate, between [ ] Intermediate, between favorable and unfavorable favorable and unfavorable [ ] Unfavorable, extremely [ ] Unfavorable, extremely unfavorable ankylosis, unfavorable ankylosis, foot not reaching ground, foot not reaching ground, crutches needed crutches needed [X] No ankylosis [X] No ankylosis b. Comments, if any: No response provided 6. Additional conditions ------------------------ No response provided 7. Surgical procedures ---------------------- No response provided 8. Other pertinent physical findings, complications, conditions, signs, symptoms and scars ----------------------------------------------------------------------- a. Does the Veteran have any other pertinent physical findings, complications, conditions, signs or symptoms related to any conditions listed in the Diagnosis Section above? [ ] Yes [X] No b. Does the Veteran have any scars (surgical or otherwise) related to any conditions or to the treatment of any conditions listed in the Diagnosis Section above? [ ] Yes [X] No c. Comments, if any: No response provided 9. Assistive devices -------------------- a. Does the Veteran use any assistive devices as a normal mode of locomotion, although occasional locomotion by other methods may be possible? [ ] Yes [X] No b. If the Veteran uses any assistive devices, specify the condition and identify the assistive device used for each condition: No response provided 10. Remaining effective function of the extremities --------------------------------------------------- Due to the Veteran's hip or thigh conditions, is there functional impairment of an extremity such that no effective functions remain other than that which would be equally well served by an amputation with prosthesis? (Functions of the upper extremity include grasping, manipulation, etc., while functions for the lower extremity include balance and propulsion, etc.) [ ] Yes, functioning is so diminished that amputation with prosthesis would equally serve the Veteran. [X] No 11. Diagnostic testing ---------------------- a. Have imaging studies of the hip or thigh been performed and are the results available? [ ] Yes [X] No b. Are there any other significant diagnostic test findings or results? No response provided c. If any test results are other than normal, indicate relationship of abnormal findings to diagnosed conditions: No response provided 12. Functional impact --------------------- Regardless of the Veteran's current employment status, do the condition(s) listed in the Diagnosis Section impact his or her ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.)? [ ] Yes [X] No 13. Remarks, if any: -------------------- No response provided !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire Name of patient/Veteran: PUGH Is this DBQ being completed in conjunction with a VA 21-2507, C&P Examination Request? [X] Yes [ ] No ACE and Evidence Review ----------------------- Indicate method used to obtain medical information to complete this document: [X] In-person examination Evidence Review --------------- Evidence reviewed (check all that apply): [X] VA e-folder (VBMS or Virtual VA) 1. Diagnosis ------------ Does the Veteran now have or has he/she ever been diagnosed with a thoracolumbar spine (back) condition? [X] Yes [ ] No Thoracolumbar Common Diagnoses: [ ] Ankylosing spondylitis [ ] Lumbosacral strain [ ] Degenerative arthritis of the spine [X] Intervertebral disc syndrome [ ] Sacroiliac injury [ ] Sacroiliac weakness [ ] Segmental instability [ ] Spinal fusion [ ] Spinal stenosis [ ] Spondylolisthesis [ ] Vertebral dislocation [ ] Vertebral fracture Diagnosis #1: PO DISC FUSION LUMBAR 2-17 Date of diagnosis: 2-17 2. Medical history ------------------ a. Describe the history (including onset and course) of the Veteran's thoracolumbar spine (back) condition (brief summary): AS ABOVE, DONE DUE TO R SCIATICA ,DROP R FOOT. b. Does the Veteran report flare-ups of the thoracolumbar spine (back)? [X] Yes [ ] No If yes, document the Veteran's description of the flare-ups in his or her own words: PAIN c. Does the Veteran report having any functional loss or functional impairment of the thoracolumbar spine (back) (regardless of repetitive use)? [X] Yes [ ] No If yes, document the Veteran's description of functional loss or functional impairment in his or her own words. LESS MOTION 3. Range of motion (ROM) and functional limitation -------------------------------------------------- a. Initial range of motion [ ] All normal [X] Abnormal or outside of normal range [ ] Unable to test (please explain) [ ] Not indicated (please explain) Forward Flexion (0 to 90): 0 to 20 degrees Extension (0 to 30): 0 to 10 degrees Right Lateral Flexion (0 to 30): 0 to 10 degrees Left Lateral Flexion (0 to 30): 0 to 10 degrees Right Lateral Rotation (0 to 30): 0 to 20 degrees Left Lateral Rotation (0 to 30): 0 to 20 degrees Description of pain (select best response): Pain noted on exam and causes functional loss If noted on exam, which ROM exhibited pain (select all that apply)? Forward Flexion, Extension, Right Lateral Flexion, Left Lateral Flexion, Right Lateral Rotation, Left Lateral Rotation Is there evidence of pain with weight bearing? [X] Yes [ ] No Is there objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine (back)? [X] Yes [ ] No If yes, describe including location, severity and relationship to condition(s): LUMBAR PAIN b. Observed repetitive use Is the Veteran able to perform repetitive use testing with at least three repetitions? [X] Yes [ ] No Is there additional loss of function or range of motion after three repetitions? [ ] Yes [X] No c. Repeated use over time Is the Veteran being examined immediately after repetitive use over time? [ ] Yes [X] No Does pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time? [ ] Yes [X] No [ ] Unable to say w/o mere speculation d. Flare-ups Is the exam being conducted during a flare-up? [ ] Yes [X] No e. Guarding and muscle spasm Does the Veteran have guarding or muscle spasm of the thoracolumbar spine (back)? [X] Yes [ ] No Muscle spasm: [ ] None [ ] Resulting in abnormal gait or abnormal spinal contour [X] Not resulting in abnormal gait or abnormal spinal contour [ ] Unable to evaluate, describe below: f. Additional factors contributing to disability In addition to those addressed above, are there additional contributing factors of disability? Please select all that apply and describe: Interference with sitting, Interference with standing 4. Muscle strength testing -------------------------- a. Rate strength according to the following scale: 0/5 No muscle movement 1/5 Palpable or visible muscle contraction, but no joint movement 2/5 Active movement with gravity eliminated 3/5 Active movement against gravity 4/5 Active movement against some resistance 5/5 Normal strength Hip flexion: Right: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5 Left: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5 Knee extension: Right: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5 Left: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5 Ankle plantar flexion: Right: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5 Left: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5 Ankle dorsiflexion: Right: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5 Left: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5 Great toe extension: Right: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5 Left: [X] 5/5 [ ] 4/5 [ ] 3/5 [ ] 2/5 [ ] 1/5 [ ] 0/5 b. Does the Veteran have muscle atrophy? No response provided. 5. Reflex exam -------------- Rate deep tendon reflexes (DTRs) according to the following scale: 0 Absent 1+ Hypoactive 2+ Normal 3+ Hyperactive without clonus 4+ Hyperactive with clonus Knee: Right: [ ] 0 [ ] 1+ [X] 2+ [ ] 3+ [ ] 4+ Left: [ ] 0 [ ] 1+ [X] 2+ [ ] 3+ [ ] 4+ Ankle: Right: [ ] 0 [ ] 1+ [X] 2+ [ ] 3+ [ ] 4+ Left: [ ] 0 [ ] 1+ [X] 2+ [ ] 3+ [ ] 4+ 6. Sensory exam --------------- Provide results for sensation to light touch (dermatome) testing: Upper anterior thigh (L2): Right: [X] Normal [ ] Decreased [ ] Absent Left: [X] Normal [ ] Decreased [ ] Absent Thigh/knee (L3/4): Right: [X] Normal [ ] Decreased [ ] Absent Left: [X] Normal [ ] Decreased [ ] Absent Lower leg/ankle (L4/L5/S1): Right: [ ] Normal [X] Decreased [ ] Absent Left: [X] Normal [ ] Decreased [ ] Absent Foot/toes (L5): Right: [ ] Normal [X] Decreased [ ] Absent Left: [X] Normal [ ] Decreased [ ] Absent 7. Straight leg raising test ---------------------------- Provide straight leg raising test results: Right: [X] Negative [ ] Positive [ ] Unable to perform 8. Radiculopathy ---------------- Does the Veteran have radicular pain or any other signs or symptoms due to radiculopathy? [X] Yes [ ] No a. Indicate symptoms' location and severity (check all that apply): Intermittent pain (usually dull) Right lower extremity: [ ] None [X] Mild [ ] Moderate [ ] Severe Numbness Right lower extremity: [ ] None [X] Mild [ ] Moderate [ ] Severe b. Does the Veteran have any other signs or symptoms of radiculopathy? [ ] Yes [X] No c. Indicate nerve roots involved: (check all that apply) [X] Involvement of L4/L5/S1/S2/S3 nerve roots (sciatic nerve) If checked, indicate: [X] Right [ ] Left [ ] Both d. Indicate severity of radiculopathy and side affected: Right: [ ] Not affected [X] Mild [ ] Moderate [ ] Severe 9. Ankylosis ------------ Is there ankylosis of the spine? [ ] Yes [X] No 10. Other neurologic abnormalities ---------------------------------- No response provided 11. Intervertebral disc syndrome (IVDS) and episodes requiring bed rest ----------------------------------------------------------------------- a. Does the Veteran have IVDS of the thoracolumbar spine? [X] Yes [ ] No b. If yes to question 11a above, has the Veteran had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months? [X] Yes [ ] No If yes, select the total duration over the past 12 months: PO SURGERY c. If yes to question 11b above, provide the following documentation that supports the Yes response: [X] Medical history as described by the Veteran only, without documentation: AS ABOVE [ ] Medical history as shown and documented in the Veteran's file: [ ] Other, describe: 12. Assistive devices --------------------- a. Does the Veteran use any assistive device(s) as a normal mode of locomotion, although occasional locomotion by other methods may be possible? [X] Yes [ ] No If yes, identify assistive device(s) used (check all that apply and indicate frequency): Assistive Device: Frequency of use: ----------------- ----------------- [X] Brace(s) [ ] Occasional [X] Regular [ ] Constant b. If the Veteran uses any assistive devices, specify the condition and identify the assistive device used for each condition: No response provided. 13. Remaining effective function of the extremities --------------------------------------------------- Due to a thoracolumbar spine (back) condition, is there functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis? (Functions of the upper extremity include grasping, manipulation, etc.; functions of the lower extremity include balance and propulsion, etc.) [X] No 14. Other pertinent physical findings, complications, conditions, signs, symptoms and scars ------------------------------------------------------------------------ a. Does the Veteran have any other pertinent physical findings, complications, conditions, signs or symptoms related to any conditions listed in the Diagnosis Section above? [ ] Yes [X] No b. Does the Veteran have any scars (surgical or otherwise) related to any conditions or to the treatment of any conditions listed in the Diagnosis Section above? [X] Yes [ ] No If yes, is there objective evidence that any of these scars are painful, unstable, have a total area equal to or greater than 39 square cm (6 square inches), or are located on the head, face or neck? (An "unstable scar" is one where, for any reason, there is frequent loss of covering of the skin over the scar.) [ ] Yes [X] No If no, provide location and measurements of scar in centimeters. Location: NEW DRESSING NOT REMOVED Measurements: length cm X width cm c. Comments, if any: No response provided 15. Diagnostic testing ---------------------- a. Have imaging studies of the thoracolumbar spine been performed and are the results available? [ ] Yes [X] No b. Does the Veteran have a thoracic vertebral fracture with loss of 50 percent or more of height? No response provided. c. Are there any other significant diagnostic test findings and/or results? No response provided. 16. Functional impact --------------------- Does the Veteran's thoracolumbar spine (back) condition impact on his or her ability to work? [ ] Yes [X] No
  7. The evidence is in my medicals files from the service, with locking, pain and swelling episodes and was included in everyone one of my reviews via the VA dr's I have seen (not C&P) and my own dr notes. I am hoping that is enough evidence to use the 1999 effective date
  8. Berta, jbasser and Buck52, Thank you for your responses. Berta, I should have clarified my question. Has anyone ever had the VA find a CUE and approve it, without the Veteran actually filling a CUE or requesting a CUE?
  9. I never filed a CUE, I had no idea what a CUE was until Sept 13, 2016 The VA found the CUE during their review of my 4/28/16 claim.
  10. Here is the breakdown of my ratings over the years. The retroactive date is not based upon the claim I filed on 4/28/2016, they went back to my June 11, 2013 claim (which was closed and no appeal filed) 10% Deg arthritis Bilateral (Records and reports show locking, popping, swelling)1/25/1999 - 2/20/2000 (20%)10% Deg arth Bilateral & 10% Tinnitus (2nd time filing for knee issue and increase with records and reports showing locking & swelling) 2/20/2000 - 2/7/2002 (30%) 10% Deg arth Left knee & 10% Deg Arth right knee (Error found by VA that my knees should have been rated separately)(reports and records still show locking, swelling, pain), 10% Tinnitus 2/27/2000 - 6/29/2011 (40%) 10% Deg Arth Left knee, 10% Deg Arth right knee, 10% Tinnitus & 10% Lower back Deg Arth (increase request for knees due to locking, pain and swelling, denied) 6/29/2011 - 4/28/2016 (70%) 20% Deg Arth Left Knee (CUE found due to locking, pain, swelling), 20% Deg Arth Right knee (CUE found due to locking, pain, swelling), 20% Degenerative Tears, posterior horn medial menisci Bilat knees, 20% Degen Disc diseas lumbar spine, 10% Radiculopathy (Sciatica Nerve) left extremity, 10% Radiculopathy (Sciatica Nerve) right extremity, 10% Tinnitus, 0% Residual Scar, left knee surgery. 4/28/2016 - Present (CUE for the left & right knee was effective back to Feb 2016 (right knee) & May 2016 (Left knee) as this was the last time I filed for a review of my knees and an increase it was denied. Every C&P exam that I have had for my bilat knees (1999,2000, 2002, 2003, 2005, 2007, 2009, 2011, 2013, 2016) I have stated that I have locking, pain, swelling, instability, weakness and popping). This is why I am stating that the CUE should go back to the original approval date of 1/25/1999. I have only filed 2 appeals over the last 20yrs as I was tired of the processes, but they were in the beginning of my first claims. The CUE was not the result of an appeal or anything like that, it was just found out of the blue by the VA. Here is the exact wording of the CUE (Left and right knee were given the same answer) (Left knee) An evaluation of 20% is granted whenever the semilunar cartilage is dislocated with frequent episodes of "locking, " pain and effusion into the joint. Clear and unmistakable errors are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made. A determination that there was a clear and inmistakable error must be based on the record and the law that existed at the time of the prior decision. Once a determination is made that there was a clear and unmistakable error in a prior decision that would change the outcome, then the decision must be revisied to conform to what the decision should have been. In this case the retroactive incrase for degenerative arthritis of the left knee S/P medical meniscus debrigement, (previously evaluated as posterior horn of the medial menisci and DC 5010-5260) is granted as the previous evaluation decision was a clear and unmistakable error. A clear and unmistakable error is found in the evaluation of the degenerative arthritis of the left knee s/p medical menisci debridement and a retroactive increased evaluation to 20% disabling is established from May 1, 2013. A review of your claim and VA examination dated June 11, 2013, showed that your right knee should have been evaluated as a meniscal tear with frequent episodes of locking, pain and effusion into the joint. There was no limitation of range of motion, nor objective evidence of painful movement of the knee. (Right Knee) An evaluation of 20% is granted whenever the semilunar cartilage is dislocated with frequent episodes of "locking, " pain and effusion into the joint. Clear and unmistakable errors are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made. A determination that there was a clear and inmistakable error must be based on the record and the law that existed at the time of the prior decision. Once a determination is made that there was a clear and unmistakable error in a prior decision that would change the outcome, then the decision must be revisied to conform to what the decision should have been. In this case the retroactive increase for degenerative arthritis of the left knee S/P medical meniscus debrigement, (previously evaluated as posterior horn of the medial menisci and DC 5010-5260) is granted as the previous evaluation decision was a clear and unmistakable error. A clear and unmistakable error is found in the evaluation of the degenerative arthritis of the right knee claimed as bursitis, tendonitis and arthritis and a retroactive increased evaluation to 20% disabling is established from Feb 6, 2013. A clear and unmistakable error (CUE) is an error that is undebatable so that reasonable minds could not differ. A determination of the CUE must be based on the record and the law that existed at the time of the prior decision. Such error must have been prejudicial to the claimant. Once the determination is made that there was a CUE in a prior decision that would change the outcome of that decision that decision must be corrected so as if the former error had not been made. A review of your claim and VA examination dated June 11, 2013, showed that your left knee should have been evaluated as a meniscal tear with frequent episodes of locking, pain and effusion into the joint. There was no limitation of range of motion, nor objective evidence of painful movement of the knee.
  11. Hello All, Break down of my ratings over the years 2000 - 10% Degenerative Miniscus Bilateral & 10% Tinitus 2007 - Increase for knees from 10% to 20% due to VA mistake of ratings both knees together 2010 - 0% lower back, as a secondary to my knee problems 2011 - 20% lower back increase, due to evidence of range of motion and herniated discs, retroactive to 2010 (Once again VA did not review all the evidence) (40% rated) 2016 - 20% left knee, 20% right knee, 10% left leg sciatica, 10% right leg sciatica I am now 70% rated, still waiting for the SOC to be released (but there are still 6 claims that have not been completed) The letter from the VA states Clear and Unmistakable errors is found in the evaluation of the Degen Arthritis of the Left & Right knee, due to locking, pain and effusion. The retroactive increase of 20% is established on May 1 2013 (Left Knee) and Jun 11, 2013 (Right knee) This is where the first issue is, the right knees date is incorrect as they used the last time I filed for a knee increase claim (denied of course), but the dates are still wrong. The Jun 11, 2013 is when I had surgery on my knee and was 100% rated during that month. The locking, pain and effusion have been stated during every C&P exam and is in every SOC dating back to 2000. I have filed a NOD for Effective Date and supplied all medical reports, VA visits, C&P exams back to 2000 and have asked for the Effective date to be Feb 20, 2000. If the VA finds a CUE on their own, does that help my case in the Effective Date NOD? Is there a cutoff on how far back the VA can retroactive a disability? Finally received the Final Decision and case is now closed.20% Degenerative Disc Disease of the Lumbar Spine 524220% Deg Arthritus of the Right Knee 5010-525820% Deg Arthritus of the Left Knee 5010-525820% Deg tears, posterior horn of the medial menisci, bilateral knees 5257-501010% Radiclopathy (Sciatica) Right extremity 852010% Radiclopathy (Sciatica) Left extremity 852010% Tinnitus 62600% Residual scar, left knee surgival debrigement 780570% ratedI just filed my NOD for an earlier effective date, due to the CUE (Clear and Unmistakable Error) that the VA found during my claim review. CUE was found due to "locking, pain and effusion of the L/R knee)Because of the CUE they set the effective dates of Feb 2013 & May 2013 (Right and Left knee), but the RO should have reviewed all of my filings and original approval of 1/25/1999.Each one of the reviews and documented notes states Locking, popping, swelling, instability and pain.I also called the VA today to see what the next steps were and the lady told me to file the NOD and she was sending a request for review of the CUE effective dates.Also the VA did not evaluate my Bilateral Hip Condition, which was part of the claim (that is now closed).Has anyone else had the VA find a CUE? Was it in your favor or theirs? Did you get an earlier effective date?Thank you
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