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.

[Berta]

"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."

Did you formally NOD this?

I agree with Philip as top the CUE.

How can I find the SVR archive?

http://www.hadit.com/forums/index.php?/forum/115-svr-live-internet-radio-wed-530-pm-cdt/

"I hate to think of having to hire an attorney who would share in whatever I'm entitled to receive."

Sometimes it pays to pay a percentage of something that-without- gives 100% of nothing.

[WYnWn]

Yes, and noted that the injuries to the left knee were documented at Tripler Army Medical Hospital (where the proceedings for med. discharge were handled) in 1978 and 1979 as well as documented medical records of injuries to the right knee, same time frame, at Pearl Harbor, Tripler, and also Memphis NAS. I argued that the 2010 physical in August was NOT the first evidence based on medical records. I also argued that aggravation of both knees was specifically referenced in these records, along with inclusion of arthritis in the diagnosis.

I also reminded them of the previous decision for effective date having been determined as 1979 because of my first NOD within a year of separation, and the fact that it was denied on the basis of no physical exam and copying from the pre-enlistment physical instead of medical records while on active duty.

Maybe it's because I didn't apologize for confusing them with facts when their minds were made up. lol

My rep suggested waiting for this next decision before hiring an attorney for the final appeal. I can see both sides of the question, which is why I'm weighing the decision and asking for input.

[WYnWn]

Add to last reply: I spoke with an attorney who made a good point. I don't have access to the VA decision making process. An attorney could get those records to see just what they were using to justify their decisions.

[Philip Rogers]

The atty is a little correct except that you do have access to their decision process. They are required to give you "their reasons and bases" for their decision and list the evidence considered, in that decision letter. They may have used a limited amount of evidence, rather than all the evidence presented. You do need a current complete copy of your claims file(c-file) which should have everything in it. I see the reduction to "0%" as a major CUE, in that they had no evidence, such as C&P exam, in which to base the reduction. This doesn't mean you "need" an atty but it might be wise to get one. I'd suggest getting the c-file copy as soon as possible. You need not retain an atty yet but you could do some research into them in the meantime. jmo

pr

[WYnWn]

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.

[NSA-Saigon-ET]

Hi,

I was trying to understand your situation, but am not sure from your posting. Here is what I read:

I think you had a prior injury to right knee before enlisting into service.

You received a clean bill of health to join the service as your injuryhad been surgically corrected and fully healed.

You had two separate injuries to each knee while in the service.

You were discharged for medical and received 20 % SC for knee injuries.

At some later point in time, the VA informed you of a decision to lower your SC to 0%.

You filed a NOD within the next year and eventually were denied again.

You did not pursue the claim at this point and so according to the rules, this claim became final at this point.

Now years ;later you tried to reopen the claim under a CUE or new evidence and were successful. Here is the statement you posted:

"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. "

Now here is where I get lost in understanding your situation. Did you actually win a CUE or did you win a decision from a new claim.

It sorta looks like you won a decision for a new claim and you then appealed that decision again. I say that because of you next statement here:

"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."

Could you please clarify?

-donald