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  1. Okay, so I got the CDROM with my C-file this week, and I already knew that there were problems with my C&P for bilateral hearing loss conducted in 2013 but needed the C-file to do anything. I found out about the error in 2017 when a paper copy of my c-file showed up out of nowhere after more than a dozen statements from the VA, St.Louis Rec Mgmt, and the Navy saying no one could find my records. When the C&P happened I was never mailed a letter with the results and that justifications. I did receive my rating later for 70% PTSD 10 % Tinnitus as being SC. My American Legion rep said the bilateral hearing loss claim was denied. I took his word for it and went on about my business. The paper copy of the c-file arrived and besides a cursory look I did not dig much into it. One day I did some more looking and found the C&P and it clearly stated that the examining Doctor only looked at the hearing tests for my induction and end of my FIRST enlistment. She completely ignored my second enlistment and even called the second enlistment a separation instead of a reenlistment. I did not deal with it at that time because I was doing a hundred things and then I moved up to Seattle and put that box in storage back in New Orleans while I decide if I can last the winters here. I have found several distinct problems w/ my c-file and her determination reasoning and what I want to find out is if these readings mean anything but more importantly if this is properly submitted as a CUE? The lack of service connection for the left ear will make getting hearing aids a problem later in life and frankly I say 'huh' a lot as it is. 1) she only looked at one enlistment 2) she stated that "...an OSHA-defined STS during military service CANNOT be established from this audiometric data." Yet in the file is that very document but from my second enlistment period. 3) Including the C&P there are 6 hearing tests in the file. There should be at least 4 more, as my job required an OSHA hearing test every two years, these are mandated tests and do not substitute for reenlistment and discharge hearing tests. 4) The one OSHA test in my c-file is marked in writing as "an OSHA-defined STS during military service CANNOT be established from this audiometric data." This file says it occurred 3 days after another OSHA test which shows a 20 DB loss in my left ear at reenlistment but none of the intervening tests are in the file. This one "reset the baseline" to 0 for the 4000Hz frequency. I Don't understand this and do not remember ever taking back to back hearing tests or being told to sit in a quiet place for 3 days before being retested. 5) The final in-service test is off the charts compared to my other tests. I have 70's and 75's in my right ear and 30's in my left. My AVG for the right ear is a 37.5HL. 6) the C&P says there is loss but not enough to be rateable. which is fine but it also says the loss is not service connected. which is flat out wrong. 7) For the right ear she lists an IDC 9 code of 389.11 which is for BILATERAL Hearing Loss, but says there is no loss in the Left ear. sorry about the huge table, but it shows the readings for every test in my c-file. The one in blue is the OSHA baseline reset test and the numbers in red are the noted 20 db difference the triggered the supposed reset of the baseline. any CUE help would be appreciated. I think it is one but I am not sure. Induction 250 500 1000 2000 3000 4000 6000 8000 Avg not including 500 right na 10 5 20 0 0 5 na (30/5) = 6 left na 15 10 0 0 5 15 na (30/5) = 6 Re-up 250 500 1000 2000 3000 4000 6000 8000 Avg not including 500 right na 30 10 5 5 5 10 na (35/6) = 5.8 left na 15 10 5 0 20 5 na (40/6) = 6.66 osha 87 250 500 1000 2000 3000 4000 6000 8000 Avg not including 500 Right na 10 5 0 0 10 -5 na (15/6) = 2.5 Left na 5 5 5 5 0 5 na (20/6) = 3.33 osha 87 3 days later 250 500 1000 2000 3000 4000 6000 8000 Avg not including 500 right na 10 5 10 -5 0 5 na (15/6) = 2.5 left na 15 5 5 5 0 10 na (25/6) = 4.16 Discharge 250 500 1000 2000 3000 4000 6000 8000 Avg not including 500 Right na 5 70 30 25 20 75 na (225/6) = 37.5 left na 10 5 10 5 0 30 na (57/6) = 9.5 C&P 250 500 1000 2000 3000 4000 6000 8000 Avg listed in C&P right na 30 20 15 15 40 25 20 22 left na 20 10 15 15 15 20 10 14
  2. GeekySquid

    CUE for OSA?

    Okay so my C-file arrived, and did so amazingly fast. Less than two months, not bad time. Going through all the files and sorting them but one of the first things I need to get together is the claim on OSA. I know the rules have changed about OSA ratings and now the med file must have a doctors saying specifically OSA is a medical condition From the MR21-1MR “When determining whether the 50-percent criteria are met, the key consideration is whether use of a qualifying breathing assistance device is required by the severity of the sleep apnea.” “Use absent a medical determination that the device is necessary does not qualify. The regulation requires that the device be necessary and this is a medical question.” So here is my situation. On 07/07/2013 I had my initial PTSD C&P which noted serious sleep problems, chronic fatigue, hypersomulance but it did NOT mention the SLEEP STUDY diagnosis given on 4/13/13 At that time the simple issuance of a CPAP was considered sufficient to getting a 50% rating for OSA, but as the change listed above notes that is not the case now. I have already filed a claim for OSA secondary to my PTSD. I did this before my Review C&P for PTSD exam, which resulted in getting bumped to 100% PTSD P&T. With the change in MR21, I suspect they may disapprove the OSA claim. If they do, would my path be to file a CUE because the record showed the apnea existed and a cpap was issued when they rated me for PTSD. The retro pay would be awesome! That would seem to be an error on their part and under the old standard I would have gotten a 50% rating for OSA as well as my 70% for PTSD and 10% for Tinnitus. The 70+50+10 calculation is 87 which rounds up to 90 for pay purposes and getting that retro 20% difference for 60+ months would be a nice holiday or new years present to me In the alternative, would I submit a NOD with the same information? or would I have to get a DOC to say that the CPA was medically necessary and would that mean I needed another Sleep Study? Thanks in advance. I am just trying to get things ready for whenever they make a determination on the existing claim.
  3. Hi all, As i said in another post I am new here and looking for guidance, opinion, options that may be available to me. Without all the gory and boring details, I am currently rated SC 70% PTSD, 10% Tinnitus with a statement that my bilateral hearing loss is not service connected. This all comes from the same original claim in 2012. I found out last year, 2017, that in making the bilateral determination the doctor only looked at my second enlistment and did not review any records from my first enlistment. I found this out when going through my records which took years for the VA to "Find". In the records are audiology test records from the first enlistment which show the damage occurred in service. In my first enlistment I had 3 audiograms. 1 to enlist, 1 diagnosing problem, 1 to re-enlist. in my second enlistment I had exactly 1 audiogram which was when I completed my enlistment. In the record from the first enlistment is a piece of paper that says "rehabilitation plan complete." but no other information. When I took the 2nd test they told me to wear earplugs when i could. That was it. In the test results between enlistment and the 2nd test it shows the loss in both ears. The final test on discharge says hearing is the same as at re-enlistment which was after the damage. So here is my question on this: What are my options to challenge this decision? I did not discover that they did not look at both enlistments until last year, which is 5 years after they granted me my initial 70 & 10 percent ratings. Is there an option? Do i start it all over again? would I need to get a lawyer? any suggestions would be great Thanks
  4. JustGettingStarted

    Won my CUE Claim for Skin Condition

    I just got a phone call from my VSO who said my RAMP decision letter will be mailed out today. I won an earlier effective date (CUE claim) for my skin condition! I was denied on the PN earlier effective date which I knew was a long shot. My skin condition was rated at 0 in May 2009 and I had an overall rating of 60. In Jun 2017, I was finally increased to 60 for my skin condition. If I had been rated correctly for my skin condition in 2009, my overall rating would have been 80. So the back pay will be the difference between 60 and 80 percent from May 2009 to June 2017 -- not bad. I can't wipe the silly grin off my face. You can see my other posts in the CUE Forum.
  5. Got an unofficial notification from the DAV about my DRO appeal stating that they were giving me an earlier date for my tinnitus (that baffled me) and that they were granting me 40% for my back (degenerative arthritis). My appeal was for secondary service connection for my knees, there was nothing about my knees in the "unofficial notification". So I went to the closest regional off and was finally seen. They looked up the "official" notification (SOC) from the VA and it stated nothing about my back but stated that they had denied me my secondary claim on my knees stating that the Dr couldn't find anything to connect my claim to either my back or the service (um, always thought knees went when back went, so secondary was almost a given, then again he did specialize in cardiology). In someways I am not that surprised, but I am wondering about the "unofficial" notice both the "unofficial" and "official" where dated the same (July 5th) I cannot believe in a matter of a few moments the VA totally changed their decision. So that has got me flummoxed. What makes this unique is that if the 40% for my back was based on the one medical entry that they didn't use for my initial claim back in 95/96. I was never able to get anybody to write me a nexus letter for this so I could "officially" reopen the case. If the "unofficial" letter holds true and I am just waiting on other paperwork to be finalized then they have all but argued CUE and handed me a win without even trying (I know the VA will never give up that easily). The entry stated scoliosis and that it was a recurring issue, their determination was based on an earlier entry and stated in black and white they could not find any other entries. Can you say "gotchya"? Getting a letter now for my knees should be easier since I have some indication that the VA does ("did") give some indication that they felt that my evidence did indicate connection to the service concerning my back. Can anyone possibly clue me into what might be going on? Did the DAV totally get it wrong? Or, is this just part of the whole overall process and I am only seeing part of it?
  6. Hi, I am new to this forum but from what I read here I am very gratful it exists. So 6 months before I ETSed I submitted my 1st VA claim from the suggestion of my sergeant major. When I initiate the claim I was getting reoccuring calluses on both of my feet. The VA wrote down calluses as the actual symptom and they give me 0%. This was in 1998. Technically I have one medical record from February in 1998 stating I had pain and calluses on both feet and the actual c&p exam was done in July of 1998 Later in 1999 after further x-rays and tests at the VA they realize that I actually had pes plantus on both feet. Unfortunately for me I didn't submit that claim until 2012 when I understood how the VA system work. They granted me 30% for the pes plantus and they backed you to the effective date to 1998 because they changed the diagnostic code from calluses to pes plantus for that injury. They never changed the percentage rating and that's what I am posing in the CUE claim. My concern is, the Doctor who evaluated me at the C&P did a bunch of tests on my shoulder and my neck where he found a C5 C6 degenerative disc and a nerve impingement. At the same time for the calluses all he did was basically state that I told him that I would shave them off periodically and never did any testing or any further investigation. He didn't do anything to address the underlying cause and there's no way of identifying how bad my calluses were between the time of 1998 and 1999. Is this a good grounds for submitting a cue case? Basically I feel they could have asked for another C&P exam as there was no vasrd code for calluses at the time according to the decision and also they evaluated me on the incorrect code. They changed it which shows they agree pes plantus was the underlying cause and calluses was just a symptom.
  7. Check this out, folks. You need to get your claims files and examine them very closely. https://asknod.org/2018/08/19/cue-get-the-fugo-out-of-here/
  8. ok so ,,,, if you read back on some of my posts you will see the issues i was having with the va, long short.. i was : 20bilat 20bilat 20bilat 20bilat and 40 = 76.4 PAYS 80 NOW IM, 40 bilat 20bilat 20bilat 20bilat and 40. = 83.4 PAYS 80
  9. Hello everyone, I'm looking for feedback based on CUE when the VA fails to consider VA medical records. I have explored this previously, both publicly and privately with Hadit members, but am close to finalizing my draft. I begin by stating the statutory and regulatory provisions extant at the time the decision was made, facts of my situation, and then close by showing how CUE is justified. Feedback and guidance is greatly appreciated! Draft Clear and Unmistakable Error (CUE) occurred in my initial Rating Decision (February 2, 2000) for internal derangement of the right temporomandibular joint, which awarded a 10% rating based on a second C&P exam (December 17, 1997). The VA had constructive possession of, but "misplaced", and failed to consider an initial C&P exam (November 21, 1997) which warranted a higher 30% rating. Statutory and regulatory provisions extant at the time the decision was made §4.6 Evaluation of evidence M21-1MR, Part III, Subpart iv, Chapter 2, Section B (4) VAOPGCPREC 12-95, May 10, 1995, Clear and Unmistakable Error - Constructive Notice of VA Medical Records DeLuca v. Brown, 8 Vet. App. 202 (December 22, 1995) (discussing 38 C.F.R. §§ 4.40, 4.45) Review of the facts Initial C&P Exam (November 21, 1997) by Dr. X, DMD The examiner noted: 1. Maximum ROM was 35 mm. 2. "Mandible locks midway and pt has to push downwards with his fingers to reach max". 3. "The pt is able to reduce the dislocation on his own without much effort or pain". 4. "All movements elicit pain". Merriam-Webster's dictionary defines "midway" as "in the middle of the way or distance; halfway". Half of the maximum 35 mm ROM distance is 17.5 mm, per DeLuca v. Brown. Per 38 C.F.R. 4.150, Diagnostic Code 9905 (1999), "Limited range of motion of temporomandibular articulation is assigned a 30 percent evaluation for inter-incisal range limited to 11 to 20 millimeters". Second C&P Exam (December 17, 1997) by Dr. X, DMD The examiner noted: 1. “Date of examination was approximately one month ago. However, that material has been misplaced and the service member returned on this date, 12/17/97, for re-exam.” 2. "The patient opens to 29 mm., experiences a loud click, and then can open to 42 mm". 3. "He responds to pain and discomfort on opening beyond 29 mm”. Rating decision dated February 1, 2000 The VA Regional Office employee noted: 1. "The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint". This quote is echoed in part from 38 C.F.R. §4.59 (1999) Painful motion. The decision resulted in a 10% rating, the minimum compensable rating for the joint." 2. References the December 17, 1997 exam. CUE Justification - The initial exam (November 21, 1997) exam warranted a 30% rating, per DeLuca v. Brown. - The second exam (December 17, 1997) noted Dr. X conceding the material from the initial exam (November 21, 1997) was "misplaced". - The Rating Decision (February 1, 2000) mentions the second exam (December 17, 1997), but never mentions the initial exam (November 21, 1997). - The VA had constructive receipt of both exams authored by Dr. X, a VA employee. - Both exams are present in my claim file. - Both exams were a part of the record at the time the decision was made. - Per §4.6, "Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law." - Per M21-1MR, Part III, Subpart iv, Chapter 2, Section B (4), "A failure to consider VA medical records, which were in VA’s constructive possession at the time of the prior decision, may constitute a CUE, if such failure affected the outcome of the claim." - Per Bell v Derwinski, 2 Vet. App. 611 (1992), "...medical records which are in VA's possession at the time VA adjudicators render a decision on a claim will be considered in the record at the time of the decision, regardless of whether the medical records were actually before the adjudicator at the time of the decision." - Therefore, given the above facts, had the VA considered the initial exam (November 21, 1997), it would have manifestly changed the outcome to a 30% rating vs 10% and the second exam (December 17, 1997), which is detrimental to the correct rating percentage, would not have been performed or considered. End of draft Thanks, -Vync
  10. Sailorman

    Is this a CUE?

    Would it be a CUE if the RO failed to render a decision on a claim or defer a contention in its decision? They rendered a decision on all other contentions but failed to address one. Thank you!
  11. Can I site law in a letter submitted as evidence? The veteran was diagnosed with PTSD in prior C&P exams, the diagnosis has been carried forward by treatment providers, and by his report continues with sufficient symptoms for the diagnosis. Thus the diagnosis of PTSD continues, as likely as not due to events in military service. Antisocial personality disorder was present well before military service, so it is less likely as not caused by military events, and there is no evidence that this disorder was exaggerated by military events. Also, alcohol and illicit drug use clearly was present prior to enrollment in military, so it is less likely as not caused by military service. There is no evidence that the veteran's substance use was due to events in military service nor has it progressed beyond the normal course for this disorder. Put another way, even if the military event had not occurred it is likely that the resulting pattern of substance use would have been present. Moreover, while there is some equivalence in the literature about the direction of causality when both mental disorder and substance use are present, DSM 5 does not acknowledge any substance use disorder as "due to mental illness," yet there are numerous "substance-induced" mental disorders. LAW: pay attention to examples not to use....and c an p doc uses likely, less likely as not....
  12. If a c and p examiner checked the box stating it was an in-person exam, and it was not. Is this good enough for appeal for remand or reversal?
  13. Hi All, I appreciate any tips or advice on how to win my claim! Here is a basic overview: 1. Got denied for Lumbar condition even though I clearly have it documented from '05 until my retirement in '12 with diagnosis of Lumbar strain and chronic pain shown. I literally have two medical records that give a summary of my history of pain going back for 4 years since the initial ER visit in '05, with no prior history of back issues. 2. VA claim decision states in part "the evidence does not show a chronic disability during service nor after active duty, therefore service connection is denied....although there is a record of treatment for thoracolumbar spine condition, no permanent residual or chronic disability subject to service connection is shown by the service medical records or demonstrated by evidence following service..." 3. NOD is due by August 15, 2018 - does anyone believe that I can get that overturned at the Regional level? I have a doctor about to write a nexus opinion and with a current MRI diagnosis of DDD (stenosis and bulging disc, radial tear, foraminal narrowing) of Lumbar region, taking inflammatory meds for pain and valiums for spasms, seeing Physical Therapy recently as well. Regards!
  14. Are Missed Lab Reports/Diagnostics New and Material Evidence? Really wanted to thank everyone for their help in advising me. Since the last time I`ve posted I have went from 20% (for 30 years) to 80 %. My original claim for kidney disease was denied, with the help of a VSO, and is with the DRO to date. I decided no one would have the time to look at the 6000 plus pages and filed my other claims pro se. Following the guidance in this forum I was service connected for migraines (50%) tinnitus (10%), and left ventricular hypertrophy (30%) in addition to my original service connected HBP (20%). I really appreciate your help. I ordered my c-file and looked through all five-thousand pages and found that in 1981 and again in 1983 I had filed claims for hypertensive vascular disease (hypertension and enlarged heart disease). In the VA doctors evaluation of my claim, he mentioned there was no evidence of an enlarged heart.In the diagnostic ekg and chest xray reports, for 1981 and 1983, they both reported enlarged heart diagnoses. Could these reports be considered as new and material evidence because the doctor in making his decision didn’t take into consideration the material fact of conclusive evidence? Va just rated me with and enlarged this year (left ventricular hypertrophy) and gave me a 30% rating. Question: could this constitute an claim for an earlier effect date, a CUE perhaps? Not sure how to look at this revelation. Thank in advance for any replies. Cedric
  16. Hi there, Does anyone know of a case where a DRO revised an effective date during the appeal period because the original claimed condition was never examined (this was in 1983)? I have submitted a NOD for an earlier effective date because after 5 times of claiming foot injury/plantar fascitiias, my dad was finally awarded max rating. He originally claimed in 1983 and the examination is completely void of info concerning feet. That was one of the conditions claimed. Maybe Berta-can you see the VA calling CUE on itself? (CFR 4.7?) Any info is appreciated. Beth
  17. In 2012, I was denied service connected for Necrotizing Myopathy. At the on-site of my disease my private doctors believed my muscle weakness was due to my statin meds. This is the reason the VA turndown my claim. I also submitted the claim under desert storm undiagnosed illness since sat time my condition was being examine to to find the try cause of the illness. After further testing, my diagnosis were Limb Girdle MD (adult onset). The reason I believe the initial, claim may be a CUE because the condition was chronic and therefore as should had fallen under presumptions. Am I correct? Or, should I just resubmit a new claim for Limb Girdle? Yes, I do have a nexus. Much appreciated!
  18. Hi everyone! I'm new to the page and was hoping someone here might be able to give me advice on possible next steps. I've already taken action on getting earlier effective dates for two conditions but because you never how claims are going to go I want to prepare myself should my claim not go in my favor. My story begins in 2007 when I filed my initial claim with the help of AMVETS. The entire VA claim process was very intimidating and I depended heavily on my VSO to tell me what I could/couldn't claim. He went through my STR and told me what I could claim. Ultimately, I was awarded 60% and felt extremely lucky given all the negative things that I had heard about dealing with the VA. Once I received my award I didn't revisit my VA claim until 2016. My conditions had gotten worse and after doing research online and finding the CFR I realized that I was not being compensated fairly and that I was also not being compensated for conditions that I had in service/currently had and were never claimed. I filed my intent to file and then scoured my STR for evidence of current conditions that I wanted to get SC. This post only concerns two conditions that I believe I should have an earlier effective date for so I will only mention those two below. I figure the easiest way to digest my story is by listing everything chronologically so here I go: Sep. 4, 2007: Separate from the Navy Oct. 24, 2007: File claim for chronic lower back and radiculopathy down right buttocks, also filed claim for SUI, Cystocele and Rectocele Jan. 24, 2008: Awarded service connection for lumbosacral strain 10% (claimed as lower back condition w. radiculopathy down right buttocks) Awarded SC for Urinary Stress Incontinence with Cystocele and Rectocele 20% Effective Date: Sep. 5, 2007 May.9, 2016: File Intent to file Jun. 16, 2016: File claim for increase for chronic lower back condition, file new claim for uterovaginal prolapse Sep. 6, 2016: Awarded increase for lumbosacral strain 20% (claimed as spine condition), awarded SC for radiculopathy right lower extremity (20% even though I did not claim this but it was noted during my C&P exam for increase for chronic back pain), awarded SC for uterovaginal prolapse (30%) Effective Date: May. 9, 2016 Apr-May 2017: Look through old rating decision and claims file and realize that I had claimed radiculopathy on my right side in 2007 claim. Realized that the VA mentioned my uterovaginal prolapse in their decision about my SUI and cystocele/rectocele. Aug. 30, 2017: Visit Baltimore RO with NOD in hand to request earlier effective dates for my uterovaginal prolapse and radiculopathy, they stamp it and then tell me that I need to file a new claim not a NOD. They told me that I can't appeal a decision that they haven't issued yet. They rip up my NOD (which I still have) and provide me a form 21-526ez where I request earlier effective dates. Sep.6, 2017: I receive a letter from the RO stating that I filed my NOD on the wrong form. This was confusing because I didn't file a NOD because the RO told me that I had to file a new claim for the EED. Sep. 16, 2017: They add the new claim for earlier effective dates and I can see it in E-benefits. They combine it with a current claim that I still had pending for something else. Sep. 26, 2017: (decision on uterovaginal prolapse and radiculopathy become final) Oct. 6, 2017: My claim on something else is completed and they completely ignore the claim that I filed for earlier effective dates Mar. 6, 2018: VSO fills out another claim requesting EED for uterovaginal prolapse, and radiculopathy. Claim is currently at preparation for decision I believe that I'm entitled to earlier effective dates because 1) I claimed radiculopathy on my right side in 2007 and they combined it with my back pain in 2007 and issued me one rating. My symptoms are exactly the same now as they were in 2007 so why were they able to issue me a seperate rating in 2016? I was diagnosed with sciatica/piriformis syndrome in service and I have radiculopathy that originates in my buttocks and goes down my right leg. 2) I didn't claim uterovaginal prolapse because I didn't know that I could but the VA knew about it and mentioned it in their Rating Decision narrative for SC for my SUI and cystocele/rectocele. Everything that I read says this amounts to CUE because they did not "sympathetically read my claim and determine all potential claims raised by the evidence". I was told by my VSO that they were supposed to invite me to claim that condition which they never did. What do you guys think? Had the VA issued me ratings for those two conditions I would have been awarded 80% instead of 60%.
  19. I sent this CUE to Berta on another thread and she thought it was really good. However, I just got a denial from the St. Pete VARO today (they are really illiterate). At issue is the fact that any conditions similar to dermatitis or Eczema are rated under code 7806. These conditions can be rated on amount of body they cover, or more importantly, how often you have to take "systemic medication" for them. Systemic medication is usually defined by the VA as oral medications or injections, but not topical medications and if you take it constant or near constant, the rating is 60%. In the denial letter, I am still service connected for a skin condition at 0% as I was in 2009, but the VARO completely ignored the fact that I have been on constant systemic medication since 1998 and should be rated at 60%. The medication was completely ignored in the decision. I provided military medical records from 1998 where I was put on constant medication, and Bluebutton pharmacy records from a military facility that date back to 2004. All that evidence was submitted with my CUE. I thought this was going to be so cut and dried, and now I know why so many people complain about the VA ignoring the evidence and why the appeal system is so backed up. I guess I will be getting on the hamster wheel and ask for a reconsideration/DRO Review/Appeal. Anyway, I attached a redacted copy of the CUE that I did in the event someone can use it as an example. I hope it works better for them than it did for me. JustGettingStarted Motion for Cue-REDACTED.pdf
  20. CURRENT STATUS: 100% P/T CLAIM SUBMITTED: 14 JAN 2015 INFORMAL CLAIM SUBMITTED: 26 NOV 2013 INFORMAL CLAIM RECIEVED LETTER DATED: 16 JAN 2014 PROOF of INCORRECT EFFECTIVE DATE IN CLAIM SUBMITTED 14 JAN 2015 1. 21-526EZ LINE 5 - Have you ever filed a claim with the VA? Yes box checked "Informal Claim" handwritten in box 2. 21-526EZ LINE 9 Handwritten inside box: NOTE: Attached is copy of DUA letter dated Jan. 16, 2014 stating I had to submit this formal claim "within one year from the date of this letter" January 16, 2014. I am of the opinion that this submittal meets the requirement to use date of informal claim as the effective date of claim for this submittal. 3. 362/LM - INFORMAL CLAIM RECIEVED LETTER Dated 16 JAN 2014 Title of Letter: "IMPORTANT -- reply needed within 1 year" Relevant Text of letter: a. 'We received your request for VA benefits on November 27, 2013. We consider this request as an informal claim for benefits.' b. "If your completed application is received within one year from the date of this letter, and we decide that you are entitled to VA benefits, we may be able to pay you from the date we received your informal claim." 4. VA FORM 21-4138 STATEMENT IN SUPPORT OF CLAIM Dated: 26 NOV 2013 "INFORMAL CLAIM FOR THE FDC PROGRAM I attend to apply for compensation benefits under the FDC Program. This statement is to preserve my effective date for entitlement to benefits. I am in the process of assembling my claim package for submission" PROBLEM: On 17 APRIL, 2014 I was at the mental clinic at the VA. I was homeless at the time so they sent me to a social worker. The social worker I believe had me fill out a form for an emergency pension. I'm not sure what I filled out exactly-not a very clear time of my life. In my paperwork I have, I see I received another informal claim letter reflective this date of 17 APRIL 2014. QUESTIONS: 1. Could opening a CUE appeal impact my current 100% P/T status? If there is any chance of this I do not want to submit a CUE at all. I just want my effective date reviewed, nothing else. Is that possible or does the whole claim get reviewed? 2. Is there someone I can contact at the VA to see why they decided on the effective date I have right now? Maybe I'm missing something and I didn't follow the rules correctly. Maybe whatever I did on 17 APRIL 2014 impacted my effective date/but even then, wouldn't my effective date be 17 APRIL 2014? 3. In your opinion, do I have a case for CUE? 4. How long does the CUE process take in your best guess? Please include any other advice or information, links that might help me. Side note: It goes without saying, but I would like to say it anyway; thank you so much for making this forum a resource for not only myself, but for all veterans. You guys are truly helping; THANK YOU.
  21. 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!
  22. I was admin separated from the Corps because of bilateral petal femoral pain syndrome. I filed a claim with in one year of my discharge. The VA sat on it for almost a decade, until I submitted another claim, asked about the first one and filed for the exact same issues as the old claim. The only mention of this claim has been in my awards/denial letter. In the awards sections I was told that my effective date was the date of my discharge due to an unadjudicated claim that I submitted with in one year of my discharge. My question about the CUE is that if they are working with that unadjudicated claim that was submitted with in one year of my discharge, isn't everything that I claimed supposed to be presumed to be service connected? I was active for 2.5 years and honorable discharged, I meet all of the in service requirements that I know of. So what do you think, do I have a CUE since they never adjudicated the claim that was within one year of my discharge? The only thing that I think is going to hurt me is that the unadjudicated claim still isn't in my ebenefits site or c-file, so they might say that my claim date was the date I filed the new claim. Which is funny because they mention the old claim as the reason for my effective date being my discharge date. I still have the old claim and reference number they gave me. I'm at 80%. I count this as a win, but I still want to push forward. It's been a long fight and I'm not ready to give up. The items I was denied for should bump me to 90%. Thank you for your help, Stephens EDIT: Can someone move this to the CUE section? Sorry, I didn't realize I was posting in the wrong section.
  23. Good news, I filed three CUEs and now have three C&P exams. Great news, it's with the VES and not the VA. The best news, I've seen one of these VES Doctors before and he rated the disability exactly correct! My question is, since I was given the C&Ps for the three disabilities that I filed the CUEs against, does this mean that the VA is agreeing that they made a CUE? I understand the exams still have to happen for the rating portion, but does this mean the bureaucratic part of the VA agrees there was a mistake? Logic tells me "yes, why would they schedule an exam if they were just going to deny the CUE." However, this is the VA and logic is hard for them. Last night I was going through my records to get them ready for the C&Ps. While I was doing this, I found another CUE that if accepted will net me another 10% back to 2005. Go through your records, DBQs, and Rating Decision letters, you might have CUEs just waiting to be found! Thank you, Stephens
  24. mrstephens11

    Is this a CUE

    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
  25. If at a RO hearing, the hearing officer determined that a Veteran's previously unknown medical condition, i.e. heart arrhythmia or hypertension, was found so soon after entry, ( about 2 weeks ), onto active duty that in their opinion it couldn't have started in military and therefore denied the claim on that basis, have they in essence made a medical opinion and therefore something that could be contested as a CUE?

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