32 Year Old Cue

[WYnWn]

Hi,

These are the facts (documented, not alleged) of my situation:

1. Medical discharge under honorable conditions (after 4 yrs. 9 mo. active duty service, USN) in 1979.

2. Injury to right knee certified as qualified service two years prior to commencement of enlistment in 1975. Two separate injuries to each knee with aggravation to both knees documented in medical records. Injuries and aggravation documented to right knee were separate injuries not related to surgically repaired and well healed right knee (previous to enlistment) that sustained two injuries during active duty.

3. PEB rating 20% (bilateral knee-chondromalasia patella, arthritis).

4. Applied for rehab. educ. benefits while working on masters degree under GI Bill in Colorado. Denied by VA. Rating of 20% was dropped to 0% total. No physical examination; records from the pre-enlistment physical qualifying me for enlistment were copied into assessment verbatim as "evidence" justifying denial and reduction. No mention of USN medical record entries which contradicted these statements and provided chonological documentation of injuries and aggravation specifically stated in clinical records while on active duty.

5. Timely filed Notice of Disagreement. Denied again.

6. Was told by college VA rep that I "need not bother to appeal", "appeal would be denied" especially because I was" female" and "the guys needed it more than I did".

7. Two years ago I tried to re-open the claim. VA insisted I file a new claim, but I insisted it should be a continuation of the original claim in 1979.

8. I contacted state senator's office; was assigned a VA rep (not employed by VA).

9. Filed CUE. Granted because of no record of problems with left knee prior to service. VA essentially made it a new claim by requiring C&P exam and treating it as a new claim. VA continually ignores any mention of right knee except for their residuals denials.

10. First decision: service connected for left knee only with 0% disability rating, effective date 1979 because I filed within a year of separation. Right knee denied on basis of 1979 denial: residuals to right knee surgery.

11. All medical records are distinctly clear of any problems with right knee for five years prior to injury to rt. knee during active duty service.

12. C&P exam at VA (not terribly impressive exam in terms of comprehensiveness, example: Dr. stated no problems with gait observed despite the fact that he walked ahead of me entering and exiting the tiny exam room).

13. Second decision: 10% rating restored for left knee; effective date changed to 2010 because the VA's exam was the "first evidence" of problems. Same denial and reason on rt. knee. After recoup of separation pay, benefits to begin in 2014.

14. Last disagreement submitted about a month ago, citing VA regs, Congressional mandates, etc. Told by rep this was last before I would (likely) need to hire an attorney and appeal.

15. Was enrolled as Priority Group 3.

I hate to think of having to hire an attorney who would share in whatever I'm entitled to receive. Yet, despite all the research I've done, I also realize, not being an attorney, that things can/could be brought up that I would have no knowledge of or clue about how to handle.

Any thoughts, recommendations, ideas would be greatly appreciated.

[WYnWn]

Ouch, hit the wrong button before I finished.

What I found to substantiate the argument was this: “In 2005, 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. VAOPGCPREC 3-2003 (July 16, 2003). 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).

They admitted there was nothing demonstrating any pre-existing condition with the left knee.

The issue of severability seems to come in where the original denial severed service connection. I found definite procedures for severing connection which were not followed, especially considering that the pre-enlistment physical was copied ans used as reason for denial, without any other information incorporated and directly opposed to documented med. records of examination after injury, treatment, diagnosis, offer of surgery but at that time with no guarantee that it would correct or ameliorate the problems, and in fact no guarantee that surgery would not make it worse.

In terms of the right knee, I used:

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. VAOPGCPREC 3-2003 (July 16, 2003). 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). “

The records specifically delineate aggravation following new injuries.

[Philip Rogers]

As I understood it, in your first post, in this whatever you call these posts, they reduced you to 0%, not severed service connection(SC), correct?? Or did they sever SC, or both?? Not that'll it'll matter much but it may help for a CUE by giving you another angle.

pr

That's another good point. I'll call to get the c-file Tuesday after the holiday.

With my limited understanding of what I've read about that part, it seems to me that they reversed service connection without following all the proper procedures.

The argument I stated to them was: The previous decision was not adjudicated based on documented facts, nor was it in concurrence with Congressional mandates. Denial of service connection, denial of disability compensation, and revision of the effective dates are procedural errors, based on Mistakes of Fact and Mistakes of Law, and failure to follow procedures.

The government has offered no evidence in compliance with US Code Chapter 38 that requires evidence to reasonably dispute the occurrence of injuries and aggravation while serving on active duty and is, in fact, such act is precluded by Congressional Mandate.

The original denial (1979) inappropriately severed service connection, against statutory law, and is perpetuated in the current decisions.

[WYnWn]

Yes, CUE was granted for the left knee with effective date of February 1979. However, that decision was faulty because rather than using the PEB rating of 20%, it copied the 0% rating of the 1979 denial that failed to provide physical examination and copied my pre-enlistment physical as the reason for denial instead of using chronological records of injury, treatment, aggravation by duty responsibilies, and recommendation for surgery.

The 1979 denial was a result of an application for rehabilitation benefits, denied by a regional office in Colorado, not an independent action by the VA. The mistaken information became the guide for all VA action, or lack thereof, afterward. That decision was faulted due to the above reasons.

Because of the denial of benefits for the right knee, I again disagreed because of using pre-enlistment information as opposed to no problems for the first five years after surgery, two documented injuries and subsequent difficulties. They continue to use "residuals to the right knee" from pre-service days instead of medical documents during active duty. They basically have refused to reconsider the right knee copying again the pre-enl. physical instead of using the medical records. In other words, they just want to ignore the right knee and all facts relating to it.

They scheduled the C&P exam for the left knee only. In that decision they reversed their position on the effective date of 1079, and claimed the 2010 exam was the first evidence. My contention is that the first evidence is the 1978 and 1979 medical records. I see this is a gambit to reduce their obligation to the lowest possible amount by manipulating the "facts" to their advantage. The facts are in the medical records, but they keep copying the line "residuals to the right knee". If you put the pre-enlistment physical next to the 1979 denial, the first is copied verbatim into the latter decision for which they did not even get a physical exam.

Then they take the date of the 2010 C&P as their new effective date, subtract the separation pay, and effectively start their benefits in the year 2014. This, effectively, for them, wipes out 32 years of perpetuated errors.

[john999]

Hire a lawyer! I don't think the VA will roll over on 32 years of potential retro without a fight. If it gets to CAVC they will have a lawyer writing a 25 page brief explaining to other lawyers why you have no claim. You don't get much respect among a group of lawyers if you are not of one them. They think all vets are dumb, otherwise you would be a lawyer too.

[WYnWn]

"they think all vets are dumb"

You have said it all.

[WYnWn]

Here's the part I found concerning recision of service connection:

§3.105 Revision of decisions

(a) Error. Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of this section where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of §3.500(b)(2) will apply.

(d) Severance of service connection. Subject to the limitations contained in §§3.114 and 3.957, service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being upon the Government).

(the limitations above mainly related to self-inflicted injuries, etc.)