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,

In the Reasons and Bases Section, where it states,

"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."

Do you know when this Clinical examination was - is this examination in your SMR's ?

carlie

[Quint7]

Carlie, after your's and Berta's replies I think that you are thinking the same as I am.

THERE NEVER WAS A CLINICAL EVALUATION BY VA!

Other than my medical records and my final physical, there is nothing. I (obviously) didn't get the notice to show up for the C&P exams, so when exactly did they examine me to find that there are none of these problems?

That then takes me back to the "undeliverable" letter. I COULD get mail at that address, so it isn't my fault that I didn't getthe letter. I also showed that I was willing to be examined as I REQUESTED and RECIEVED the Gulf War exam (which was lost other than the bloodwork and isn't considered part of my C File anyway as it is a "registry").

So I think that you are right in saying that I should go after them for an impropper rating and failure to notify me of my rights to appeal.

Whadda ya think?

[carlie]

I would request that VA provide a copy of the "Clinical Evaluation" they

referred to in this Rating Decision.

Be sure it's not something contained in your SMR's.

jmho,

carlie

[carlie]

Quint,

Is a copy of that "Undeliverable letter" in your cfile ?

If yes then I would say a shot at a CUE for that will surely be denied.

Even if it is not that's a real hard fight from the research I've gathered.

1) What was your separation date?

2) Was SC for your knee disability requested on your 21-526?

3) What is the date your 21-526 was filed ?

carlie

[carlie]

Quint,

"Issues:

Service connection for right knee pain

Service connection for low back pain

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

I would be concerned if any of the scars had anything to do with your right knee.

carlie

[Quint7]

Carlie, the scars are not on my knee, some small ones on a hand from stitches and on my shin from saudi/Kuwait from bashing it all of the time on the Tank type vehicle I was on then.

I don't know the form you are talking about but I'm guessing it is the original date of my claim request. I did that right before my enlistment ended in July 1994 so I think it would be May or June of that year.

As for a clinical evaluation, like i said, I never got any type of exam from VA nor is there one in my C File. My final physical for discharge was done in early April 1994 (I guess I wasn't allowed to get hurt after that during the next 3 months. LOL).

The "undeliverable" letter is in my C file and that is one of my contentions, that I COULD get mail at that address and have proof of that. My vet rep said VA will just blame the Post Office which I then said fine, aren't they then supposed to give me, the VET the benefit of the doubt if I was doing everyhing right at the time? He had no answer.

Like I have said, I am looking forward to actually speaking to someone instead of 800 #s and letters.

I still would like to see that court case because I know it specifically addressed undeliverable mail as a reason for missing an exam and what VA was then supposed to do about it.

I have also read that since I never received a copy of the decision I can fight that it is "final" as VA made it final due to 'abandonment" and that if I never received it or notice of my rights to appeal, I could not have "abandoned

anything.