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]

Just got through watching news with scenes of memorial day celebrations, local and US, troops being met at the airport by cheering crowds. While I am overjoyed to see the stong revival of support for today's military, I can't help but think back to the days during and after Vietnam. Jeers instead of cheers, rocks thrown at vehicles with military stickers, the disparaging remarks and whispered derogatory comments. It is sad for any vet to still have to fight to benefits not only promised but mandated. From what I can tell reading these forums, scanning profiles, digesting the stories, there are a lot of people here who belong to that era and no doubt, remember.

Most lawyers have not walked those paths, felt or had to overcome the emotions, endured the same pain, nor incurred the losses. I personally do not believe they should take a single dime for doing what is right. No, I did not serve in combat, but I would have if asked. I am glad that maybe, at least, in some small way I was able to contribute to a proud and honorable alliance.

That benefits should have to be paid for twice just doesn't make sense to me. Paying someone to make those charged with administrating benefits already paid for doesn't make sense to me. That Congress can vote its own raise and not have to worry about the extra coming in their next paycheck doesn't make sense to me. That those who work for the VA and continue to vomit out the illegal, irreputable, and unethical decsions and acts and not have to worry about losing their jobs for their despicable acts makes even less sense to me.

Believe me, I hope each and every one of you prevails in your struggles, whether I'm able to get what I was promised or not. You each deserve what you're asking and more, and that is my Memorial Day wish for you.

[deltaj]

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 w%alked 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.

You mentioned being denied by V.A. There is a law at 38 USC 5103 that you might be able if you have service medical records showing the condition was incurred or aggravated by military service.

[WYnWn]

Thanks, deltaj, I just looked it up. That might hold some promise.

All of this keeps bouncing back to that initial denial in 1979 and the fact that the pre-enl physical was copied verbatim without an examination and that is what has been used ever since. Even where "evidence" is listed, they have never used any reference to med. records. They also gave be a really hard time about re-opening the claim, then required their own physical exam in 2010 and are trying to claim that as "first" evidence.

I'm going to explore your suggestion more.

[carlie]

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

NSA,veral times

For correction - NO -CUE is not a one shot deal.

CUE can be filed several times on the exact same claim issue -

IF it is filed under a different theory.

Also, CUE can be filed on the exact same claim issue at different levels of appeals.

[Philip Rogers]

Lawyers, like all of us, need to make a living. They need to charge for expenses, used in running their business. So what irritates you?? Restaurants get the public to subsidize their business, in the form of tips. Why should we subsidize business owners, but we do! Pretty stupid when you think about it. I see nothing wrong with what they charge. You can always shop around and find one more in your acceptable price range. True, the system is screwed up but it's the best we have, currently. jmo

pr

A Clue to the CUE:

Lawyers like to charge money. They charge a full hour for part of one. They charge an hour for a fifteen minute phone call. If they tell a story or brag about themselves, they charge you to listen. They charge for their paralegal to read document and to listen to the paralegal's report. Then they charge to read the same document. They charge dollars each to copy pages and for the time an employee stands at the copy machine. They charge for postage, for paper, probably for ink, too. They charge to file papers. Then they charge to write a response to you. They charge for anything they do, and likely, for a lot they don't do. Oh, and then they raise their percentages if they have to go to court for you.

The VA limits what attorneys can charge.

Poof! They're no longer interested.

[WYnWn]

NSA,veral times

For correction - NO -CUE is not a one shot deal.

CUE can be filed several times on the exact same claim issue -

IF it is filed under a different theory.

Also, CUE can be filed on the exact same claim issue at different levels of appeals.

Apparently, there are several levels in the process, between the regional office, DRO, BVA, and then US Court of Appeals, with specific forms. I just filed a form 9 (BVA). If not successful, an attorney can be retained through a form 22a to go to the US Court of Appeals.

In this instance, one level gets one part right, then changes another crucial element which wipes out the gain.

The point I was referring to earlier was that the first decision (1979 denial by regional office in Colorado) severed service connection improperly through copying the pre-enl physical (1975) as if it were current to 1979. No physical examination was conducted, so the conclusions drawn were impossible. It seems that change/denial of the separate and bi-lateral ratings that were the official conclusion and basis for medical discharge (MEB) and denial of service connection was not only a mistake of fact, but also a mistake of law, not to mention what basically amounts to forgery, (material from another source was adopted inappropriately to form an incorrect conclusion) when the pre-enl phys was copied.

This is the section I used in the NOD:

“The Court has clarified that: Once service connection has been granted, 38 C.F.R. § 3.105(d) provides that it can be withdrawn, but only after certain procedural safeguards have been complied with and the Secretary overcomes a high burden of proof ... In effect, § 3.105(d) places at least as high a burden of proof on the VA when it seeks to sever service connection as § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned. Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). See also Wilson v. West, 11 Vet. App. 383 (1998).”

These procedural safeguards were not complied with in the first erroneous decision (1979).

It seems this element would qualify as a procedural error. If the medical record is used, with documented injuries during service and aggravation due to dury requirements, and the fact that no difficulty with the right knee occured prior to the injuries, the VA cannot meet the second prong of:

“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).

In one stage of this process (June 30, 2010), the decision granted CUE on the left knee and stated: "

As a result direct service connection is established for chondromalacia left patella with a noncompensable evaluation assigned from February 13, 1979, the day following your separation from service as your original disability claim upon which your prior rating decision dated August 28, 1979 was based was received within one year of your separation from service.

However, they essentially reversed this by requiring an exam at the Dallas VA, then arbitrarily deciding that this was the first evidence, contrary to medical records which is a substantive error, mistake of fact, and violates statutory mandates. The law associated with CUE requires reinstatement back to the date noted above, not a jump forward to 2011 (under the stipulations of the CUE).

3.306 - Aggravation of preservice disability.

(a) General. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.

And:

§ 3.310 Disabilities that are proximately due to, or aggravated by, service-connected disease or injury.

(a) General. Except as provided in §3.300©, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.

Oh, and, whatever happened to the benefit of the doubt going to the vet?