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]

Gotta laugh here, pr, I know trying to apply logic to the VA is one of the seven deadly sins..............

[WYnWn]

I'm starting to lean strongly toward calling the attorney back Tuesday.

[Philip Rogers]

Be sure to check on the atty and find out how much previous VA experience he/she has. Many are jumping on the bandwagon, now, since the law changed. When I was naive, I had a lawyer that, little did I know, wanted to learn SSDI law and it cost me 30 months of benefits and a 7 yr delay, in winning my claim, so be careful before signing up w/just any atty. Also, did they reduce you to 0% or CUE their SC rating?? Or both, or don't you know?? Thanks!

pr

[NSA-Saigon-ET]

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.

AHA,

Now I see the whole picture.

Your statement here:

"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. "

Ok,

Here is the poop on the CUE. You only get one shot at a CUE and you took it. The result of that was

a 0% SC for left knee with an EED of 1979 and a denial of right knee benefits.

So that is it on the CUE for this claim.

This just means you cannot do a second CUE for the same claim, but you can and did appeal the decision. So your next statement is :

"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."

WoW! I really hate to say it, this is a bad situation for you. Remember you only get one shot at a CUE for a specific claim. You took the shot and the result will stand. I see what you are saying that the original claim was SC both knees @20% from 1979 and that the CUE only awarded left knee @ 0% and denied the right knee.( Does not seem right to me either, but that is what they decided)

Your latest appeal with updated evidence resulted in a 10% bump from date of latest appeal. According to the decision from the CUE, then this is appeal decision is correct.

All of the above will stand unless you can get it into a higher Veterans court. In order to accomplish that, you will need a good lawyer.

You can hire a lawyer for this, but please make sure they do it on a contingency basis only! Lawyers like old claims where the payoff will be large. This case is really pretty small potatoes and will be lucky heard in the next several years.

I do wish you much luck on this!

-donald

[Philip Rogers]

donald - I believe you can CUE the CUE decision. Those CUE rules are there to keep veterans from appealing their claims(my opinion). If you can prove an error, you can win, period. jmo Also, I would need to see all the documents/evidence that were available, at the time, of all of the decisions, before I could really even speculate. Did they CUE the 0%? The SC? The EED? Both? Neither? Haven't really heard answers to these questions.

pr

AHA,

Now I see the whole picture.

Your statement here:

"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. "

Ok,

Here is the poop on the CUE. You only get one shot at a CUE and you took it. The result of that was

a 0% SC for left knee with an EED of 1979 and a denial of right knee benefits.

So that is it on the CUE for this claim.

This just means you cannot do a second CUE for the same claim, but you can and did appeal the decision. So your next statement is :

"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."

WoW! I really hate to say it, this is a bad situation for you. Remember you only get one shot at a CUE for a specific claim. You took the shot and the result will stand. I see what you are saying that the original claim was SC both knees @20% from 1979 and that the CUE only awarded left knee @ 0% and denied the right knee.( Does not seem right to me either, but that is what they decided)

Your latest appeal with updated evidence resulted in a 10% bump from date of latest appeal. According to the decision from the CUE, then this is appeal decision is correct.

All of the above will stand unless you can get it into a higher Veterans court. In order to accomplish that, you will need a good lawyer.

You can hire a lawyer for this, but please make sure they do it on a contingency basis only! Lawyers like old claims where the payoff will be large. This case is really pretty small potatoes and will be lucky heard in the next several years.

I do wish you much luck on this!

-donald

Edited May 29, 2011 by Philip Rogers

[WYnWn]

From what I understand, speaking with my rep, these current regional office decisions are appealed to the BVA and after that, I could hire an attorney to take it into court. What I'm considering is whether to wait for the result or hire an attorney without waiting. What is irritating is that the end result of that action could be giving up about 20K, which isn't a decision I take lightly. A couple of you have stated, and correctly so, is that sometimes a portion of something beats a total of nothing. I'm hoping to find any indications of the likelihood of succeeding without an attorney. I expected a battle when I started this in March of 2010 so I got copies of my personnel file and medical records first.

In the entire process, nothing in any decision or "statement of the case" has indicated usage of medical records. So, in my current submission, I copied verbatim from the medical records with dates and text, identifying the medical facility and listing treatments for each complaint.

The two issues in this latest are: 1) CUE on service connected disability for right knee, and 2) evaluation for service connected left knee chondromalacia.

What really bothers me in this last decision is under their Evidence section. It lists the 1979 VA decision, VA claims file, and 2010 VA exam. Where are the medical records??? They have not listed medical records in evidence, nor indicated any records they were "not able to obtain" as per the laws they copied as part of the decisions issued. Obviously, if they look at claims information only, they will continue to repeat the same errors, which is what I suspect is happening.

If anyone has experience with a particular attorney, I'd like to hear from you. And I have also read that any attorney selected must be properly certified, but I'd like to hear about any who are particularly accomplished in the area. Although they offer a list of certified attorneys I'm thinking it's like: you may have a driver's license; but that doesn't tell me if you're a good driver or not.