Clear Unmistable Error Cfr 3.105a

[Mcafee]

Hello all hope all is well. I am having a difficult time as to how to broach this claim. Do I file it with VARO or do I file it with BVA.This is an unappealed decision made by BVA back in 1980 for service connection and compensable.In other words BVA denied this when I filed for an increase or service conection and I never followed up or pursued it any further.Now the Question I have is, Knee surgery while in the military spent 50 days in the hospital and yet when I was discharged never received any compensation for this until 1982 is my award letter for 10% for musculolskelatel condition according to this award letter.However while in the service both knees were check for this injury and both knees went through rehab only one had surgery reason (Osteochondral fracture with dislocation to the patella) it took most of the fall during combat exercise at night.And in SMR this is well documented from Physical theraspist and Physician and yet VARO never honored the service connected injuries or condition? (VARO called it post operative residuals?)I do know of the USC Title 10 code for no soldier shall be discharged without a Compensation and pension in place or offered prior to discharge from Active Duty.But that pertains to the US ARMY LAW not VA LAW. Sorry for the long post and Thank You for Your help God Bless

[Ricky]

Hello All Hope All Is Well.Ricky if you read this post then you should understand starting with [CITE: 10USC1218]this was never put in place this is the US Army responsibility if I understand the rules and regs correctly. Secondly: To Clarify I will attach BVA Decision you read and decide for yourself.You also need to understand at that TIME I was a very young man I joined when I was seventeen CLUELESS to the worlds misgivings and deception of so called peers and adults.Thirdly Injury March 1977 did not have surgery until June 1978 more than a year later chronic and an issue constant and never addressed until the point I could no longer walk because the knee was swollen and blown out. RICKY -were you medically discharged for your knee problems? answer no.RICKY at the time you first file the VA claim did you have a disability or did you simply claim the fact that you had knee surgery in the service. The disease or injury prior to the surgery is not a disability unless it had continued to cause problems such as limited motion, pain etc..... If that is not the case then a rating for surgery residuals is in order.Continued to be an issue had a second surgery HHS in NY 1980.RICKY -can you and will you post the BVA decision? that should answer most if not all of the questions which would help to determine if a CUE exists. Check ATTACHMENTS.For me to post all this would be rather taxing and exhausting to say the least however I really do appreciate the input from all. Also if only One Knee is the issue i would not have on my award letter Musculolskeletal system I believe it would only refer to the one incident?(RICKY one that only a clown can understand. ????????) I beg your pardon.

?(RICKY one that only a clown can understand. ????????) I beg your pardon No reference to you sir!!!! We clowns, such as me, have simple minds and have a hard time understanding things sometimes. It was a hit on myself as I am the hadit clown. Sorry as it appears you thought I was making a reference to you - I was not and would never do such to one of my Hadit friends!!!!!

[Mcafee]

Berta Thank you for your insight and help here are a couple of my active duty clinical health record from TAMC Hospital Always both knees were addressed by the therapist and the physician. also consult from mental health whom claimed no psychatric disorder but upon returning to unit immediate seperation recommended? Go Figure. These records are in my SMR what I dont understand when initial claim was filed back in 1979 or 1980 I have to find that request, that all was not consider or VARO did not ask for clarification ? Its Ok Ricky I too am an assclown.I was just tryin to focus on the issue at hand really frustrating .and thank you all. God Bless

[jbasser]

note: you will file the CUE as you do all claims - through your regional office. If you send it off to the BVA they will send it to the RO as the RO has the first whack at it.

You have to file a cue to the area that made it. If the BVA made the CUE you word the claim like this.

Wether the BVA committed Vue in a decision. The RO is instructed to forward the cue to the BVA since they have no jusrisdiction.

Once it is reversed, then the claim should go to the AMC. Or back to the RO.

[Mcafee]

Hello All Hope All Is Well. I think I have a good shot at this along with the rest of my information Please Forgive me but i do not like to post personal information but to be clear I wanted to do this to show that Iam True to my word . I also failed to mention Iam a survivor of Suicide and the US Army new this prior to my Enlistment.So maybe you can understand my complicated situation here and i really do not like to discuss that part of it as for PTSD I have yet to find a physician I can trust let alone open up to.This is a very difficult subject for me.Again Thank You All.God Bless

[Ricky]

From what you have posted this is my take on a CUE. The exam noted that the scar was/had not healing/healed properly at the time of the examination. the surgery was conducted in June 1978 and the exam in Mar 80. That means it had been 21 months!!!! Now I am not a doctor but I am going to put on my doctor's hat here - I find it utterly out of this world that such a scar had not healed in 21 months. I would recommend that you as for a CUE due to the VA imporperly applying the regulations in that at the time of the exam a scar that had not healed properly was surely tender and had pain upon touch (I am sure you told him that it was painful!!!!!!!! which is the current requirement for a 10 percent rating for a scar (we just have to research the 1980 requirements but I am sure they are probably the same).

The other issue I see is there is no mention of a temp 100 percent rating.... Did they give you such a post surgery rating? If not then that is another valid CUE avenue.

The only other issue in the exam that addresses the right knee is the fact they found Bilateral Chondromalacia. Chondromalacia is simply an irritation caused by abnormal tracking of your patella (kneecap) over your femur (thighbone). When the kneecap is tracking incorrectly then potential irritation and deterioration can occur. This may result in severe tenderness and often times swelling during many activities. This is curable by modifying your muscular function to allow the proper tracking of the knee which should have been addressed by your treating doctor. Now if he took no steps to correct the problem and the softening in the area has become hardened or the kneecap has deteriorated to a point that it is causing you a problem with your walking (gait problems) then you should be able to file a claim for it with the proper medical evidence. I do not see a CUE issue with a failure to compensate for the right knee.

I truly understand your situation during the time all of this was going on with the PTSD but you as well as all of us know that the VA could care less. I and I am sure the others will continue to look at this to see if there is ANYWAY to back up and zap them. I do not know you or your financial situation at the time this was going on but were you able to obtain any type of civilian treatment for the problems with your knees? If so are those records available?

Thats about all of the thinking out loud that I can do tonight. I hope it is kinda what you are looking for and helps you.

[Mcafee]

Hello All Hope All Is Well. Thank You Ricky and Berta .Now my concern is which Regulation or rules apply of the time and there is more in SMR.I was just going to write it up as this was never consider or applied without regs?Iam sorry that Iam not a skilled Lawyer or counsel but I can only put down as I see fit,I know the errors are there its just how to Word It? Thank You Again