Cue House Of Mirrors

[WYnWn]

Hi, (new here)

I was separated from service (USN) in 1979 with MEB ratings of 10% on each knee for injuries incurred while on active duty. Upon application at University of Northern Colorado for educational benefits, I was denied, assigned a new rating of 0% (Sheesh, then why did I have to get out?). There was no physical examination and the rater basically copied verbatim the Pre-Enlistment physical (only injury that had ever occurred was to right knee that was certified as fully healed and qualified for service) with no referrence or apparent consideration of medical records. During almost five years, my medical record documented new injuries to each knee.

During the same year (1979), I filed a letter of disagreement, but was told quite emphatically (my being female) that I needn't bother. I recently refiled under CUE regulations. The VA concurred on the CUE on the left, set the effective date as 1979, but stayed with the 0% rating, and despite clear evidence in med. records, denied the right knee as pre-existing despite injury dates and treatment info in record, concentrating to the exclusion of other info, on a single part of the total diagnosis. I appealed both. The next "decision" confirmed 'service related', restored 10% rating, not for the documented injuries, but for aggravation of a condition that never existed prior to injury, but changing the effective date to the date of the recent VA exam. This decision effectively takes away 31 years of denied eligability for benefits, while preserving the VA's right to be 'paid back' for their separation award of $6000 (apprx), so my "benefits" would not effectively begin until November of 2014.

No decision as of yet on re-injury of right knee appeal.

I am working with a VA rep, (Tx. Senator's Office not VA employed).

I would appreciate any suggestion, information that any of you can offer.

Thanks.

[WYnWn]

Somehow I managed to miss out on this entire discussion I didn't notice that I needed to check a box for immediate response, so thought it was dead in the water until I stumbled back on it today. Please excuse what must have appeared as total rudeness. My apologies.

From Berta:

“in 1979 with MEB ratings of 10% on each knee for injuries incurred while on active duty.”

How did that older decision account for the MEB evidence?

Did they consider it at all?"

The 1979 regional office denial included verbatim copies of phrases taken directly from the pre-enlistment physical that qualified for induction. This information from 1975 was presented as if it was current to 1979. They further reduced the percentage, effectively severing benefits. I filed a notice of disagreement at the time, but was told by the VA representative on campus not to bother with appeal as it would be denied. I can find no reference, verbage, or any other indication that the medical record was used. Otherwise they would have discovered two separate dates of new injuries to the right and two for the left knee. These four injuries occured and were documented as occuring during active duty along with treatment, proposed surgery that at the time they could not guarantee with any certainty that operating would improve the problems nor any certainty that it might not make it worse.

[WYnWn]

The primary issue on my mind currently is whether to allow time and wait for the form 9 determination or to go ahead and seek counsel. That is the decision I need to make now.

What I'm most interested in is anyone with similar experience who has prevailed without hiring an attorney. Although I think my responses in this last disagreement were stated with regard to actual facts, backed up with legal notations that apply, and relevant cases cited, I also know it is a quarmire and those without legal degrees are easily stomped on. Yet, with what is at stake, it is still a major decision for me and very different from business law which I'm used to dealing with.

I also have not been able to find any statistics related to the issue, hence, I'm hoping someone has or knows of relative experience.

Thanks.

[broncovet]

Wyn

Many of us have prevailed without an attorney. I, for one prevailed, tho I, too, was denied SC for knee arthritis even tho I suffered a fracture in the military that often leads to arthritis later. I did not prevail on the arthritis, but on other unrelated conditions.

IMHO, you dont need an attorney at the BVA level or below. Only, IMHO, if denied at the BVA level would I recommend an attorney. While I will agree that MEB is quite different than a RO decision, I would still recommend that an attorney is unnecessary until you are denied by the BVA. At the CAVC level, and above, I think you are a fool to represent yourself.

Even tho I have suggested an attorney is unnecessary at this point for you, I adamantly beleive that a Veteran is entitled to attorney representation at ANY level he sees fit. Neither my self, nor a VSO, nor a senator or congressmen is best qualified to determine whether it is in YOUR best interest to hire an attorney. It is highly likely you know things about your case than none of the rest of us are aware of. For example there may be circumstances that warrant attorney representation at an earlier level such as when the Veteran is placed endlessly on the RO decision BVA remand hampster wheel, which is sometimes nearly impossible to get off. The Ro denies, the BVA remands, the RO denies, The BVA remands etc. This may take a writ of mandamus at the CAvc level to get off this hampster wheel, probably best accomplished by an attorney.

In order to prevail yourself, you need to take heed of the deadlines you must comply with. They are 1 year for the NOD, and 60 days to send in the I9 after the RO issues the SOC. You must meet BOTH these deadlines.

To successfully represent yourself, you are in the right place, but, remember this: If you give general information about your issues, then you can expect a general answer at best. If you want specific advice on your case, then you have to be willing to reveal specific details about your case, as we can not give a specific answer when you only give general information. I see this happen time and again...where people expect us to provide specifc answers while they provide little relevant information. Its like asking "How far is it to grand mothers house?" Well we need to know where you are at, and where Grandma lives to answer that, but we cant tell you how far unless we have both of those pieces of information. If you wont tell us where your grandma lives, then we can only say, "How long did it take you LAST TIME to get to Grandmas?'' "6 hours?"..."Ok, then it must be about 6 hours to grandmas."

If you do post specifics, be sure to redact your name, address, ssn for your protection.

Edited May 31, 2011 by broncovet

[WYnWn]

Thanks for the well thought out response.

I have a pretty good feel for the hampster wheel at this point:

1979: Medical/Hon. Dischg.: The first denial (1979) copied verbatim from the pre-enlistment physical without performing a physical examination, and concluded that the 20% sevice disability rating should be dropped to 0%, because of previous chondromalacia of left knee and residuals from surgery (1973) on the right.

Filed timely NOD'

I kept insisting in 2010, that it should not be considered as a new case, but re-opening the old case on the basis of CUE. This was filed for me by my rep.

My contention was that proper procedures were not followed, copying the pre/enl physical and presenting it as current information to 1979 was a substantial error, fraudulent, a mistake of fact, and a mistake of law.

*June 14, 2010 Decision:

DECISION

1 . The decision to deny service connection for chondromalacia left patella was clearly and unmistakably erroneous; therefore, service connection is established with an evaluation of 0 percent effective February 13, 1979.

2 . No revision is warranted in the decision to deny compensation for residuals, meniscectomy right knee.

Again, appealed 10% disability rating resulting in separation reduced to 0%, on basis of inappropriate reliance on pre-enl phys. for determination without phys. exam., etc. on left knee and no acknowledgement ofhaving experience no difficulites with right knee for five years (three on active duty) until two documented injuries to the rt. during active duty service. Rt. knee was stable prior to enlistment, only began to dislocate after injuries, aggravation due to duty requirements documented in med. rec. Same things here, failure to follow procedures, Mistakes of facts and law.

*June 30, 2010 decision:

1. Determined service connection for right knee with 0% disability, effective date Feb. 13, 1979, with statement: "The law says VA can't pay for disabilities that are less than 10% disabling."

2. Assigned 10% rating for left knee, but changed effective date to Aug. 19, 2010. Stated that August 19, 2010 (date of examination of the left knee only) was the effective date because the examination was the "first evidence showing manifestations meeting the criteria for a compensable evaluation".

I argued that the exam was not the first evidence; it was confirmation that the 1979 conditions still existed for the left knee through 2010 and disagreed with changing the effective date.

I appealed the decision on the rt. knee because injuries and aggravation to the right knee were well documented in med. rec.'s from 1979 and because at no time after discharge had the right knee been examined by the VA since I had been mistakenly denied, the condition still existed as a direct result of injuries during active duty service, therefore, the VA had not met its burden of proof required in part 2,citing the following:

“The VA General Counsel issued a precedent opinion holding that to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show, by clear and unmistakable evidence, (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).

CUE on right knee based on documented injuries and aggravation, medical records that document increase in severity.

*April 21, 2011 Stmt of Case:

1. Denial of service connection for right knee disability , by VA rating dated August 28, 1979 is not/ws not CUE.

2. No change is warranted in the 0% evaluation from Feb. 13, 1979 through Aug. 19, 2010, or the 10% evaluation from Aug. 19, 2010, for the service connected left knee chondromalacia.

It looks to me like the slate was basically wiped clean, disregarding establishment of 1979 effective date due to timely filed NOD, medical documentation is still absent in decision language, facts of injuries are not considered or incorporated.

I filed the Form 9 well within the time limits and listed all the decisions with specific arguments, cited procedural errors by numbers, copied related court decisions by designations and copies of text, and Congressional mandates regarding the issues, along with the actual use of pre-enl. physical in lieu of medical records being fraudulent. (More, but too much to copy here.)

I tried to keep this short. I realized, reading the last (Apr. 21, 2011) that the way the arguments were relayed might not have been as I specifically stated them, so I wrote the text for the form 9 and was assured that my rep copied it and sent it as I wrote it.

I asked for a copy of the C-files, but have not received them. I sent another email this morning asking for a copy of the file or info on how to obtain the file.

[broncovet]

Wyn

A copy of the c file is critical. Anything less and you are "shooting at the moon in the dark".

BUT...It does sound like you filed a NOD to the June 10, 2010 decision, and rightfully so. I would argue that going from 10% to 0% amounts to a reduction in rating, and the VA cant do that unless the VA follows specific "reduction" procedures, and it sounds like they did not. One of the requirements for the VA to reduce your rating is that they must give you 60 days advance notice, and give you a right to a hearing to protest the said reduction. If they do not follow that procedure, and it does not sound like they did, the courts will overturn such a rating reduction. YOu probably still have time to raise the "reduction" issue, as it is before one year up to June 10, 2011.

I think, anytime the Va reduces your compensation (except for dependents reaching age 21 and changes in income for pension purposes) they have to go through the "reduction" procedure. Search for "reduction in rating" for more details. There is a lot on hadit about it.

Even tho you should fight this reduction, big time, you need to also ask for an increase, if you think its too low. LOOK UP the regulations, dont guess. YOu can get copies of your medical records at your VAMC much faster than you will likely get the VARO to get your c file. Look those over and see if you meet the criteria for a higher rating, and include that evidence in your appeal.

You have to get busy, you dont have much time.

[broncovet]

You see, by switching gears, you go on the offensive. Then, its the VA who has to try to prove they followed reduction procedures.

You are no longer the one trying to prove the very difficult "CUE" standard, but instead, the VA must justify their actions demonstrating that they either complied with reduction procedures, or that yours was somehow "exempt".

Dont just sit and let the VA hit you with a reduction..hit em back, and hard.