Va Mistake

[nanaeris]

On my initial decision for knee disability the VA denied my claim for knee disability in 1976. They stated I had osgood schlatters disease before I entered the military and it was not aggravated by military service. I finally got hold of my military medical records. The first time I seen a doctor it was after a training exercise and playing basketball. The orthropedic doctor diagnosed my condition as patella tendonistis and chondromalacia. I had the same problem after combat training for Air Force Security Policeman, I was given a temporary profile change and I was fine. When I deployed overseas, I was assigned flightline security, and started having problems with my knees. One day I was assaulted and fell on my knees, the X-rays showed I had osgood shlatters disease. Somehow the doctors determined I had this before I entered the military. They did a MEB stating this pre-existing condition was permanment aggravated by military service. I was sent to a stateside hospital for evaluation. The orthropedic doctor stated I had osgood schlatters disease and chondromalacia. The MEB report stated osgood schlatters disease was permermant aggravated by military service. The Air Force PEB board stated I had a pre-existing condition that wasn't aggravated by military service and I should be discharged. The final MEB report stated it was aggravated by military service. When I filed a VA claim in 1976 they denied my claim. In 2001 I reopened the claim for service-connected disability being denied by a rating specialist and DRO and contacting the BVA my case was granted. This time included osgood shlatters disease, chondromalacia, and the surgery I had. Although I asked about the presumption of soundness as my induction physical was normal I can't get an answer. I looked at my induction physical and it states I was 5'10" and when the x-rays taken after I injured my knees did not show osgood schlatters disease. Now when the x-rays taken when I was stationed overseas stated I had osgood schlatter disease, I had been in the military over 2 years. The MEB physical given overseas stated I was 6'1/2" so I had grew 2-1/2". Now I know osgood schlatters occurs when kids are growing. I contend that my osgood schlatters disease occured while I was on activity duty and not before I entered the military as the military stated. Also the three MEB reports stated my condition was permanment aggravated by military service but the PEB does not. If their is doubt does it go to the veteran? Is this grounds for a CUE back to the original denial date?

[john999]

It might be a CUE if you had evidence of aggravation of this condition in your VA claims file and the VA ignored it in 1976. Get a lawyer to help you with this since you are entering an area that is legalistic. Before you file the CUE run it by one of the good VA lawyers. When the VA denied your original claim what was the basis for the denial and what evidence did they use? The key is did they have, or should they have had evidence that your condition was service connected.

[poolguy11550]

nanaeris-where is the CUE? If everything is how you state, there is no CUE in my opinion. Yes, it may have been a bad decision by the R/O. However, appealing the original bad decision would have been the corrective remedy. Clear & Unmistakable & Error claims are very difficult to prove.

What is the status now of these claims? Did you re-open? I'd re-open to start, because I think that you have a strong claim based on aggravation of a pre-existing condition. Once you get the S/C then review everything for what may be a CUE and go from there. But as stated before dumb decisions are not necessarily clear, unmistakable, or errors. Those are the three elements that must be proven in the first step. Then if three are proven, you have to prove that CUE stood a chance of changing the denial to an approval and if you are successful at that- then the R/O will go back a rate your claim up or down. This process gives VBA lawyers a wet dream because you spend 5 or 6 years to prove the cue and then anther 5 to 6 years to win the S/C.

My advice, go in reverse and re-open the claim with a IMO or any type of strong but different evidence. Then once you win there follow john999 advice and seek legal council toward the CUE.

Edited July 8, 2009 by poolguy11550

[nanaeris]

It might be a CUE if you had evidence of aggravation of this condition in your VA claims file and the VA ignored it in 1976. Get a lawyer to help you with this since you are entering an area that is legalistic. Before you file the CUE run it by one of the good VA lawyers. When the VA denied your original claim what was the basis for the denial and what evidence did they use? The key is did they have, or should they have had evidence that your condition was service connected.

I would assume they used the PEB report, but the 1st MEB report stated it was, the 2nd MEB, stated it was, and the 3rd MEB stated it was. I don't know which one carry the most weight. I could not get the VA to tell me which one they use in making their decision. Also finally when I won the appeal in 2001 they stated it included osgood schlatters disease, chondromalacia, they call it debrisment, I call it surgery to remove damage cartilidge, but the latter 2 was included in the original decision although the chondromalacia, and knees popping and grinding was included in my military medical records.

[Commander Bob]

Have you re-opened your claim since 2001? You need new evidence. Is your knee condition getting worse?

[Philip Rogers]

I feel you could very well have a CUE. Everyone feels CUEs are hard to prove. I disagree. I've done two and assisted in another and won on all three. Are they easy? Not necessarily but they can be won, especially if they are on decisions made prior to the late '80's. In your case there the presumption of soundness and the aggravation issue. I think you'll win and you probably won't need assistance, if you do the work. jmo

pr

On my initial decision for knee disability the VA denied my claim for knee disability in 1976. They stated I had osgood schlatters disease before I entered the military and it was not aggravated by military service. I finally got hold of my military medical records. The first time I seen a doctor it was after a training exercise and playing basketball. The orthropedic doctor diagnosed my condition as patella tendonistis and chondromalacia. I had the same problem after combat training for Air Force Security Policeman, I was given a temporary profile change and I was fine. When I deployed overseas, I was assigned flightline security, and started having problems with my knees. One day I was assaulted and fell on my knees, the X-rays showed I had osgood shlatters disease. Somehow the doctors determined I had this before I entered the military. They did a MEB stating this pre-existing condition was permanment aggravated by military service. I was sent to a stateside hospital for evaluation. The orthropedic doctor stated I had osgood schlatters disease and chondromalacia. The MEB report stated osgood schlatters disease was permermant aggravated by military service. The Air Force PEB board stated I had a pre-existing condition that wasn't aggravated by military service and I should be discharged. The final MEB report stated it was aggravated by military service. When I filed a VA claim in 1976 they denied my claim. In 2001 I reopened the claim for service-connected disability being denied by a rating specialist and DRO and contacting the BVA my case was granted. This time included osgood shlatters disease, chondromalacia, and the surgery I had. Although I asked about the presumption of soundness as my induction physical was normal I can't get an answer. I looked at my induction physical and it states I was 5'10" and when the x-rays taken after I injured my knees did not show osgood schlatters disease. Now when the x-rays taken when I was stationed overseas stated I had osgood schlatter disease, I had been in the military over 2 years. The MEB physical given overseas stated I was 6'1/2" so I had grew 2-1/2". Now I know osgood schlatters occurs when kids are growing. I contend that my osgood schlatters disease occured while I was on activity duty and not before I entered the military as the military stated. Also the three MEB reports stated my condition was permanment aggravated by military service but the PEB does not. If their is doubt does it go to the veteran? Is this grounds for a CUE back to the original denial date?

[Commander Bob]

I feel you could very well have a CUE. Everyone feels CUEs are hard to prove. I disagree. I've done two and assisted in another and won on all three. Are they easy? Not necessarily but they can be won, especially if they are on decisions made prior to the late '80's. In your case there the presumption of soundness and the aggravation issue. I think you'll win and you probably won't need assistance, if you do the work. jmo

pr

Congratulations on the CUE wins Phillip Rogers. How long did it take??? I have a strong, prior to late 1980's CUE, however I felt that it would take too long and would be too aggravating. So when I wrote in for a correction, the VA changed it to a new claim and then promptly denied it. LOL. I sometimes feel that I'm just adding to a VA employee's 401K, while they take up space.