Dro Hearing Friday 10/24, Possible Cue Question

[Quint7]

I have my DRO in person hearing in Buffalo on Friday.

Quickly, the topics are:

*Gain SC for my IVDS

*Get a full IVDS exam as spelled out in the VA Training Letter and C & P exam worksheet as opposed to just a ROM test.

*Increase my knee from 10% (mild) to 20% (moderate) disability

And now the tricky part...... I am going to request that my knee get rated at 10% back to my discharge in July 1994.

I am going to state that VA committed a CUE due to failing to notify me of a C&P exam in July 1994 (they gave me a 0% since there was evidence of a problem, but I was a no show. I have been 10% since 2007).

According to the VA my letter was undeliverable. They have the envelope that was returned (although they didn't include it in my free copy of my Cfile a few months ago!) in 1994 as undeliverable.

I have two envelopes, one my DD214 delivered to the same address 3 weeks before the C&P letter "couldn't" be delivered, the other an official college transcript delivered 2 weeks after the C&P letter.

I also have proof that I went to the VAMC for a Persian Gulf exam 10 days before the undeliverable letter.

There is no mention of a phone call to my apartment then, yet VA tried to contact me at that number 13 years later(!) to go to a C&P.

I also have read previously a case called Hyson vs. Brown from 1993 I believe (can't find the case again) that said that if a vet cannot be contacted and it is immediately after discharge, the VA should contact the vet's former unit and/ or next of kin to attempt to get in touch. (It also says the VA shouldn't be expected to move heaven and Earth to track down a vet, but must make an attempt).

I'm just wondering if I have a good case. The outcome of the CUE I would like to see is a 10% EED for the knee as there is more than enough evidence of a problem at the time of my discharge.

Any inoput and if anyone has any way to get the case of Hyson Vs. Brown (I think it was 1993) that would help!

Edited October 21, 2008 by Quint7

[carlie]

Quint,

I don't know that I would be CUEing anything to do with failure to deliver

the C&P notice.

From what you have posted, if the medical evidence was at hand for

VBA to award SC at 10% instead of SC at zero %, that's what I would be

filing the CUE on.

jmho,

carlie

[Quint7]

Carlie, I agree but in the decision that I originally never received (I got it in 2006 when I filed my knee claim...... forgot all about filing in 1994) it states that even though there wass evidence of a problem at time of discharge, because I never showed up for the exam in 1994 VA had the right to rate it at 0%.

My biggest arguement will be that I COULD receive mail at my address at that time (why their letter was returned I have no idea), that I was willing to get exams as my Gulf War exam proves, that OTHER VA systems had and did contact me (GI Bill), etc.

I am also going to state that I rated 10% just going off of the ratings and my Service Medical record and that VA took the easy way out by using the "no show" excuse.

As I said, they also never sent me a copy of the decision from Jan. 1995.

I want to cover all bases in this hearing as this seems to be my one good shot at someone listening and actually understanding my points as opposed to me writing them and someone reading them months later.

I hope that this makes sense.

I also would REALLY like to be able to find the CAVC case of Hyson v Brown. No matter how hard I look for it I can't find that exact decision. It is listed as "Hyson v Brown, CAVC 91.1604 on NVO.org, but I'm not a member and was hoping to find it somewhere.

[Berta]

This a lot for the Buffalo VARO to handle at a hearing :P

Remember they all had to work this weekend-due to the VA OIG investigation.

Make sure all of your evidence gets into the record-

do you have any vet rep who will be there too?

On the CUE question-I suggest you formally file the CUE claim- then you will have time to find that case- I looked at the CAVC case data base and didnt find that name there at all- I looked for similiar names but came up with nothing-

Carlie has a good point- a CUE claim because the rating was wrong- the circumstances of the C & P can be explained in the CUE claim with evidence-

[Quint7]

Berta, I didn't know that they all worked this weekend, but I have been following the "shreddergate" threads on here!

A rep from NYSDVA will be in the room with me. he is the one I talked to 3 weeks ago that showed me my C File and allowed me to see that they sent an incomplete copy to me (no copy of the 1994 envelope that is in my file).

I am bringing everything I have ever sent along with originals of the two envelopes with me. I went o hand delivering stuff to them last year and even had my entire service record book (the military stuff, not medical) entered into my C File so that they can't claim no to have that! It even has pay slips in it.... too bad for them! LOL

The Hyson case listed as 91.1604 COVA was decided in 1993 from what I have read. It talks about VA's responsabilites in contacting the vet in the pre VCAA era. I had it once and lost it or the site shut down or something. It definately remember reading it as the "move heaven and earth to find the veteran" line stuck with me.

Edited October 21, 2008 by Quint7

[carlie]

Carlie, I agree but in the decision that I originally never received (I got it in 2006 when I filed my knee claim...... forgot all about filing in 1994) it states that even though there wass evidence of a problem at time of discharge, because I never showed up for the exam in 1994 VA had the right to rate it at 0%.

Quint,

VBA had to have some kind of Medical Evidence to weigh inorder to grant SERVICE CONNECTION AT ALL.

Evidence of a problem at time of discharge would also be evidence to be weighed inorder to grant the different levels of compensation not just Service Connected at zero percent.

If the evidence on hand at the time of that decision is supportive of a compensable level this is where the CUE would be.

Failure to grant a compensable percentage of XXX % SC as warranted by Medical Evidence. The simple fact that you did not show up (for whatever reason) for the exam does in no way provide by regulation a RIGHT to grant ANY CLAIM, regardless of whether the rating is zero percent or service connected as non-compensable.

My biggest arguement will be that I COULD receive mail at my address at that time (why their letter was returned I have no idea), that I was willing to get exams as my Gulf War exam proves, that OTHER VA systems had and did contact me (GI Bill), etc.

It's just my informed opinion but I feel trying to CUE not getting the C&P notice is a long road and will more likely than not be denied.

I am also going to state that I rated 10% just going off of the ratings and my Service Medical record and that VA took the easy way out by using the "no show" excuse.

YES, This is where the CUE would be, if the evidence used to grant the SC - then it should also be used to grant the correct compensable level as shown by Medical Evidence in SMR's.

jmho,

carlie

[Quint7]

I will put VA's exact words for the 1995 decision to award me 0% for my knee and to not SC my back (now known as having IVDS).

From the "copy" of my 1995 decision I got in 2006. (All records show that they had the correct address and ph. number in 1994 during these claims).

Issues:

Service connection for right knee pain

Service connection for low back pain

(other minor things I listed, scars, etc., not concerned about)

Evidence considered:

SMR's dated 7-88 to 7-94

Notice of failure to report for VA examination (VAE) dated 9-8-94 and 9-22-94 from VAMC Sepulveda (this is the VAMC in Los Angeles now)

Decision:

Service connection for low back pain is denied.

Service connection for right knee condition is granted with a noncompensable evaluation assigned.

Reasons and bases:

Right knee-

The veteran was seen 10-89 with complaint of right knee pain when running, marching and standing. The veteran was diagnosed with medial meniscus tear. SMR's show on 2-90, veteran complained of painto the right knee. The veteran was seen on multiple occations with the complaint of right knee pain.

Records dated 4-90 show the veteran was treated for right knee patella femoral pain. SMR's dated 10-93 show the veteran was treated for complaint of exacerbation of an old knee injury while playing basketball. During treatment the veteran stated "knee is really no problem". The veteran did not report tothe scheduled VAE.

Service connection is granted for right knee condition as the evidence shows onset of the condition(s) during military service. Disabilities of the musculoskeletal system result in anotomical damage, functional loss and evidence of disuse, and/or abnormal excursion of movement. In determining evaluations for disability involving the knee, condiseration isgiven to the objective evidence of limitation of flexion and extention, subluxation, lateral instability, painful motion, weakness and radiological findings demonstrating joint abnormality. Clinical evaluation of the right knee shows normal motion, no evidence of pain or crepitance on movement, no joint deformity, no swelling, no atrophy, no instability, and no circulatory disturbances. There are no findings of impairment of the knee which meet the requirements for a compensational evaluation. Accordingly a noncompensationevaluation is assigned.

Lower back-

SRm's dated 10-93 shows the veteran was treated for low back pain after playing basketball. The veteran described a twisting injury. The diagnosis was lumbar strain. Seperation exam dated 4-4-94 is silent for complaint of back pain.

SMR's show tratment for lumbar strain, however this was shown to be a temporary condition which resolved with treatment, and no permanent residual disability was shown at time of separation. therefore, service connection is denied.

So I can tell you that my SMR's contained almost ALL of the conditions listed as far as the knee. In fact there is a statement from an ortho specialist that was after 2 years of me complaining about my knee and it says "Nothing else can be done. Condition is not severe enough to rate a medical board'. They never did pin down what was wrong with my knee and I just "toughed it out" until it blew out at work in 2006 and... whadda ya know, a medial meniscus tear! I noww have patella femoral syndrome, atrophy, crepitis, etc 9why I want the 20% now).

As for the back, after hurting it that once and being told it was a "strain", it happened a few more times before my discharge and again, I "toughed it out'. The VA training letter on IVDS shows thatthis was most likely the actual onset of my symptoms of my IVDS that reulsted from military service.

SO I guess that you guys might be right. They hadthe evidence, exam or not. Thye just ignored it all. Any thoughts after reading all of that? LOL