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.

[carlie]

I would still be in disagreement that this will be "the law of the land for CUE" and

if I had a CUE claim that had been denied and I felt it should be considered again

under a completely different theory, I would most certainly file it.

I would probably also refer to this court case that you posted,and put in writing

something to the effect of, I request that the VA adjudicators follow this case law AND NOT

IMPROPERLY PRECLUDING MY CLAIM OF RAISING MY ISSUE OF CUE BY LABELING IT IN SUCH A MANNER THAT PREVENTS THE CURRENT CUE CHALLENGE UNDER A COMPLETELY DIFFERENT THEORY.

I feel down the road the quoted case will be before the court again as a violation of

due process to the claimant. With a violation of due process the claimant remains

deprived of appelant rights in their request of property rights.

I also believe the adjudication process, prior to reaching appeals at the Court level,

is adversarial, but everything the VBA puts out, states it is not.

I'd be interested in pr's, Berta's and Hoppy's line of thinking on this issue,

I believe Berta's still taking some vacation time.

Maybe other's will chime in.

[Commander Bob]

JMHO... I would think it naive to believe the "Joseph C. Hillyard v. Eric K. Shinseki, CAVA Opinion Number 08-1733", decided on March 29, 2011, will stand as "the law of the land".

On May 10, 2011, THE 9th CIRCUIT U.S. COURT OF APPEALS ruled that the VA deprived vets of their constitutional rights.

The cracks in the VA's facade grow wider. Beguiled Judges and law makers are beginning to see the corruption in logic displayed by cases like the Hillyard v. Shinseki, CAVA debacle.

I also believe the adjudication process,is adversarial.

Edited June 20, 2011 by Commander Bob

[Philip Rogers]

carlie, I tend to agree w/you, unless the claimant was represented by legal counsel, for the CUE. The claimant is a layperson and therefore not familiar w/legal theories. That being the case I "feel" he/she should be allowed some room for error. I haven't read the cases posted but will, now that I'm back home in NC, within the next few days. I don't see the need to point out each CUE, especially if the claimant finds some later, that they didn't know about. jmo

pr

I would still be in disagreement that this will be "the law of the land for CUE" and

if I had a CUE claim that had been denied and I felt it should be considered again

under a completely different theory, I would most certainly file it.

I would probably also refer to this court case that you posted,and put in writing

something to the effect of, I request that the VA adjudicators follow this case law AND NOT

IMPROPERLY PRECLUDING MY CLAIM OF RAISING MY ISSUE OF CUE BY LABELING IT IN SUCH A MANNER THAT PREVENTS THE CURRENT CUE CHALLENGE UNDER A COMPLETELY DIFFERENT THEORY.

I feel down the road the quoted case will be before the court again as a violation of

due process to the claimant. With a violation of due process the claimant remains

deprived of appelant rights in their request of property rights.

I also believe the adjudication process, prior to reaching appeals at the Court level,

is adversarial, but everything the VBA puts out, states it is not.

I'd be interested in pr's, Berta's and Hoppy's line of thinking on this issue,

I believe Berta's still taking some vacation time.

Maybe other's will chime in.

[Commander Bob]

...unless the claimant was represented by legal counsel, for the CUE. The claimant is a layperson and therefore not familiar w/legal theories. That being the case I "feel" he/she should be allowed some room for error...

pr

I believe Kenneth Carpenter, Esq. was the NOVA lawyer representing Hillyard.

http://www.vetadvocates.com/

Bob

[NSA-Saigon-ET]

JMHO... I would think it naive to believe the "Joseph C. Hillyard v. Eric K. Shinseki, CAVA Opinion Number 08-1733", decided on March 29, 2011, will stand as "the law of the land".

naive?

How so, I understand that a three judge panel sets precedent for CAVC cases so this one is binding on VA and CAVC or "is the law of the land concerning its decision." If it is overturned in the future then that is a different story, but there is no case on the horizon today.

So any vet who wants to file a second CUE on the same issue that has been decided once only now using a different theory will simply get his/her case dismissed.

On May 10, 2011, THE 9th CIRCUIT U.S. COURT OF APPEALS ruled that the VA deprived vets of their constitutional rights.

???

The cracks in the VA's facade grow wider. Beguiled Judges and law makers are beginning to see the corruption in logic displayed by cases like the Hillyard v. Shinseki, CAVA debacle.

corruption in logic?

This is JMHO, but It appears that the CAVC is looking for finality for CUE motions. Since they have defined a CUE as a motion or request on a final adjudicated claim, there is no claimant and no rights are being denied. The whole idea behind a CUE motion is to help a veteran overturn an injustice.

I also believe the adjudication process,is adversarial.

No kidding....me too!

The whole exercise here is to get the correct facts available to the veteran.

I sent an email to a prominent attorney and here is the reply:

<br style="line-height: 17px; ">

Hi,I read your blog concerning this recent case decision by the CAVC. I am a veteran and have at least one appeal with what I believe is a CUE. I am waiting for my local hearing with the RO in this matter.<br style="line-height: 17px; ">As I understand it, this decision is now binding for the VA and the CAVC itself at all levels. Is that true?<br style="line-height: 17px; ">Thanks,

In theory, the CAVC could redecide the case or overrule it in another case or the parties could try to get the Federal Circuit Court of Appeals to change the CAVC decision but otherwise this is now the law of the land and binding on the VA and veterans.<br style="line-height: 17px; "><br style="line-height: 17px; ">Good luck with your CUE claims.<br style="line-height: 17px; "><br style="line-height: 17px; ">

Edited June 21, 2011 by NSA-Saigon-ET