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]

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

I have no problem with anyone getting paid for services they perform. I have owned a business for 33 years. My expenses to perform services are included in a comprehensive price that includes cost of materials, cost of labor, related taxes, wear and tear on equipment, insurance costs, etc., and a profit margin that allows me to stay in business. It is incorporated into one price and I also have no problem explaining the actualities behind my prices to perspective clients. Business experience with attorneys has taught me that what is presented, example: 33% of collections, is actually compounded into 50% or higher when expenses are added On Top of the quoted 33%. End result is that the lawyer walks away with more than the client. This is a deceptive practice that results in: a person relying on the stated percentage to their detriment when the actual amount taken by the attorney is significantly higher than what is promised up front. It is a misrepresentation to state that they charge 33% plus expenses when the expenses are often inflated and added on top of the quoted rate. This methodology effectively qualifies as a 'deceptive trade or practice' which, coincidentally, meets the legal definition of fraud. It would seem that the VA's limiting of the amount that can be charged to a vet by an attorney is, at least, a recognition of the inherent possibility of abuse.

I have also learned through experience that fees, even with attorneys, can be negotiable. What irritates me most is the deceptions and manipulation by the VA make it necessary for a vet to have to hire an attorney just to get what is constitutionally promised and has already been earned.

[NSA-Saigon-ET]

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.

Hi Carlie,

Thanks for the update on CUE.

I apologize to WYnWn for my mis-information. In my defense, I was using the information given to me concerning CUE. I also have a claim waiting on local appeal which may be a CUE. So my interest in this claim is more than just cursory. There is another veteran advocate site on the Internet run by a well known advocate named Jim Strickland. He has a section there detailing CUE and I was referring to its content. Apparently it is in need of more detailing.

It would be of great value to see the actual CUE decision (with personal data blocked) posted here.

[WYnWn]

Hi Carlie,

Thanks for the update on CUE.

I apologize to WYnWn for my mis-information. In my defense, I was using the information given to me concerning CUE. I also have a claim waiting on local appeal which may be a CUE. So my interest in this claim is more than just cursory. There is another veteran advocate site on the Internet run by a well known advocate named Jim Strickland. He has a section there detailing CUE and I was referring to its content. Apparently it is in need of more detailing.

It would be of great value to see the actual CUE decision (with personal data blocked) posted here.

_________________

No apology needed. Sometimes just an impression that someone else has leads to another avenue of investigation, or at least, makes me re-examine my own conclusions or provides something I might not otherwise have found. The whole thing is hard for anybody to navigate. I think that after this form 9, it becomes final, but then can be appealed through the Court.

While they claim to have examined medical records, they conveniently left out entries in my med. records documenting new injuries to the right knee with dates, evidence of instability, and other pertinent info. They also ignore the doctor's statements about aggravation due to location of duty station, access, and requirements of the job. That's all stated in the record, but not considered in this.

This is copied from my first decision on the left knee where Va admitted the CUE in regards to it. Part of my computer copy is illegible; I cleaned it up so that it is readable and consistant with the actual pages, but you have to fill in the blanks on some of the minor words.

______________

"Your prior rating decision dated August 28, 1979 denied service connection for chondromalacia patella of the left knee based upon the fact that the evidence of record showed that this disability was present prior to your enlistment into service and was not found by the rating board to have been aggravated by service above and beyond the degree of disability present at the time of your enlistment into service. This rating decision took into account your numerous complaints of knee pain in service and your eventual discharge from service as a result of your bilateral knee problems. It is noted however per the review of your service treatment records as listed above, that although your separation exam noted your chondromalacia patella as pre-existing service, there is no objective medical evidence in your service treatment records which documents that you had a left knee condition at the time of your enlistment in service. Instead, only a right knee condition is shown as pre-existing service.

The law provides that a veteran will be considered to have been in sound condition when examined and accepted into service except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. Furthermore, the law provides that the history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. Determinations should not be based on medical judgment alone as distinguished from accepted medical principles, or on history alone without regard to clinical factors, ~inent.tQ-the ..hasic...character, origin and ,r-de-v..elopment of injury or disease. They should be based on thorough .analysis-of--'the ( evidentiary showing an careful correlation of all material facts, with due regard to '" accepted medical principles pertaining to the history, manifestations, clinical course, and .character of the particular injury or disease or residuals thereof.

-Taking into account these regulations and the whole evidentiary record as noted above, it is determined that the previous rating decision was clearly and unmistakably erroneous. There was no evidence of record at the time of your 1979 decision which showed that your left knee chondromalacia was present prior to your enlistment into service. 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 and *was received within one year of your separation from service* (paraphrased)."

_______

Part of the problem, too, is that examiners often do not listen precisely to what they are told, combining information that does not belong together, leaving out pertinent facts when they summarize, or just plain getting it wrong. This gives a board opportunity to merge facts. I've seen evidence of this just reading through my own records. The original injury to the right knee prior to service was experience playing one sport, but was attributed by an clinician to an entirely different sport. Some of these facts are not terribly important, but when the same thing happens with very important facts, results can become skewed. Unfortunately, we don't know or perhaps, are not allowed to review what is written and proofread the data. That's when it comes back to haunt.

[NSA-Saigon-ET]

_________________

No apology needed. Sometimes just an impression that someone else has leads to another avenue of investigation, or at least, makes me re-examine my own conclusions or provides something I might not otherwise have found. The whole thing is hard for anybody to navigate. I think that after this form 9, it becomes final, but then can be appealed through the Court.

While they claim to have examined medical records, they conveniently left out entries in my med. records documenting new injuries to the right knee with dates, evidence of instability, and other pertinent info. They also ignore the doctor's statements about aggravation due to location of duty station, access, and requirements of the job. That's all stated in the record, but not considered in this.

This is copied from my first decision on the left knee where Va admitted the CUE in regards to it. Part of my computer copy is illegible; I cleaned it up so that it is readable and consistant with the actual pages, but you have to fill in the blanks on some of the minor words.

______________

"Your prior rating decision dated August 28, 1979 denied service connection for chondromalacia patella of the left knee based upon the fact that the evidence of record showed that this disability was present prior to your enlistment into service and was not found by the rating board to have been aggravated by service above and beyond the degree of disability present at the time of your enlistment into service. This rating decision took into account your numerous complaints of knee pain in service and your eventual discharge from service as a result of your bilateral knee problems. It is noted however per the review of your service treatment records as listed above, that although your separation exam noted your chondromalacia patella as pre-existing service, there is no objective medical evidence in your service treatment records which documents that you had a left knee condition at the time of your enlistment in service. Instead, only a right knee condition is shown as pre-existing service.

The law provides that a veteran will be considered to have been in sound condition when examined and accepted into service except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. Furthermore, the law provides that the history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. Determinations should not be based on medical judgment alone as distinguished from accepted medical principles, or on history alone without regard to clinical factors, ~inent.tQ-the ..hasic...character, origin and ,r-de-v..elopment of injury or disease. They should be based on thorough .analysis-of--'the ( evidentiary showing an careful correlation of all material facts, with due regard to '" accepted medical principles pertaining to the history, manifestations, clinical course, and .character of the particular injury or disease or residuals thereof.

-Taking into account these regulations and the whole evidentiary record as noted above, it is determined that the previous rating decision was clearly and unmistakably erroneous. There was no evidence of record at the time of your 1979 decision which showed that your left knee chondromalacia was present prior to your enlistment into service. 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 and *was received within one year of your separation from service* (paraphrased)."

_______

Part of the problem, too, is that examiners often do not listen precisely to what they are told, combining information that does not belong together, leaving out pertinent facts when they summarize, or just plain getting it wrong. This gives a board opportunity to merge facts. I've seen evidence of this just reading through my own records. The original injury to the right knee prior to service was experience playing one sport, but was attributed by an clinician to an entirely different sport. Some of these facts are not terribly important, but when the same thing happens with very important facts, results can become skewed. Unfortunately, we don't know or perhaps, are not allowed to review what is written and proofread the data. That's when it comes back to haunt.

Thanks for posting their decision.

Could you post the page where they stated the evidence used for the rating decision and your document you submitted for the CUE to the regional Office. I ask to see what your specific arguments that were submitted.

[WYnWn]

Thanks for posting their decision.

Could you post the page where they stated the evidence used for the rating decision and your document you submitted for the CUE to the regional Office. I ask to see what your specific arguments that were submitted.

I don't yet have a copy of the claims file, so I don't know exactly what was actually written by my rep. I've taken an active part in the responses through emails to him, but have requested a copy of the file from him or info on how to get it.

On the last one where they zeroed out everything decided previously, they simply listed as evidence: VA rating decision dated August 28, 1979, Claims file, and VA examination dated August 19, 2010.

You might get a little bit of an idea from what I replied to Carlie. I tried to find a regulation, law, court precedent, or any official statute that related to my specific situation and referred them back to the clinical records and away from the 1979 fiasco. I don't know if that will be helpful to you, but maybe.

My arguments were:

1. There had never been any injury or difficulty with the left knee prior to documented injuries while on active duty.

2. The 1979 decision copied the pre-enl physical, presenting information from 1975, without consideration of intervening factors, such as two documented injuries to the right knee and aggravation caused by requirements of the job.

3. The MED/PEB rated the disability as 10% for each knee, 20% total. The 1979 decision removed the rating without following proper procedures and without benefit of physical examination.

4. The effective date by law and by virtue of timely notice of disagreement filed is Feb. of 1979.

5. The 2010 VA exam only confirms that disability related to injuries is still present and that the 2010 exam does not establish the "first evidence" as alleged.

6. Specific procedures required by law were not followed (part of the response below).

7. VA decisions were multiple mistakes of fact, mistakes of law, and violations of procedural requirements and statutory mandates.

Also, figuring they certainly were going to wade through entries in the medical records, I copied each visit with the date and complaint.

This is a quote from the response that I sent to my rep and that he said he copied and forwarded as part of the disagreement. After writing this, I copied the regulations/laws/etc. that pertained (also included in the response to Carlie.)

The claims record from Veterans Administration Regional Office, Denver, Colorado, September 11, 1979 contains statements used for denial of educational benefits that are undeniable Mistakes of Fact, Mistakes of Law, and Violations of Statutory Mandates. These mistakes and procedural misapplications have been consistently and inappropriately repeated in the current disability claims for injuries and aggravation occurring during active duty, especially, but not limited to, the right knee.

1. The denial letter states: ““The evidence above shows that the residuals of your meniscectomy, right knee, and chondramalacia, left knee cap, existed prior to your entry into the military and were not aggravated by service.”

a. The author of this document copied verbatim from the Pre-Enlistment Physical to arrive at this determination, with no official organizational history, without including and indisputably failing to consider facts available and documented by medical records during service and in violation of procedure. These are Mistakes of Fact, Mistakes of Law, and failure to apply proper procedures.

b. No physical examination was employed in the determination.

c. There was no difficulty with Rt. knee subluxation in the five year history (1973 to 1978) until the documented injury on June 1, 1978 and on August 13, 1978 with subsequent documented aggravation.

d. This denial, without benefit of physical examination and with improper application of statutory mandates, further, inappropriately reduced the established rating of 20% to 0%.

[NSA-Saigon-ET]

I don't yet have a copy of the claims file, so I don't know exactly what was actually written by my rep. I've taken an active part in the responses through emails to him, but have requested a copy of the file from him or info on how to get it.

On the last one where they zeroed out everything decided previously, they simply listed as evidence: VA rating decision dated August 28, 1979, Claims file, and VA examination dated August 19, 2010.

You might get a little bit of an idea from what I replied to Carlie. I tried to find a regulation, law, court precedent, or any official statute that related to my specific situation and referred them back to the clinical records and away from the 1979 fiasco. I don't know if that will be helpful to you, but maybe.

My arguments were:

1. There had never been any injury or difficulty with the left knee prior to documented injuries while on active duty.

2. The 1979 decision copied the pre-enl physical, presenting information from 1975, without consideration of intervening factors, such as two documented injuries to the right knee and aggravation caused by requirements of the job.

3. The MED/PEB rated the disability as 10% for each knee, 20% total. The 1979 decision removed the rating without following proper procedures and without benefit of physical examination.

4. The effective date by law and by virtue of timely notice of disagreement filed is Feb. of 1979.

5. The 2010 VA exam only confirms that disability related to injuries is still present and that the 2010 exam does not establish the "first evidence" as alleged.

6. Specific procedures required by law were not followed (part of the response below).

7. VA decisions were multiple mistakes of fact, mistakes of law, and violations of procedural requirements and statutory mandates.

Also, figuring they certainly were going to wade through entries in the medical records, I copied each visit with the date and complaint.

This is a quote from the response that I sent to my rep and that he said he copied and forwarded as part of the disagreement. After writing this, I copied the regulations/laws/etc. that pertained (also included in the response to Carlie.)

The claims record from Veterans Administration Regional Office, Denver, Colorado, September 11, 1979 contains statements used for denial of educational benefits that are undeniable Mistakes of Fact, Mistakes of Law, and Violations of Statutory Mandates. These mistakes and procedural misapplications have been consistently and inappropriately repeated in the current disability claims for injuries and aggravation occurring during active duty, especially, but not limited to, the right knee.

1. The denial letter states: ""The evidence above shows that the residuals of your meniscectomy, right knee, and chondramalacia, left knee cap, existed prior to your entry into the military and were not aggravated by service."

a. The author of this document copied verbatim from the Pre-Enlistment Physical to arrive at this determination, with no official organizational history, without including and indisputably failing to consider facts available and documented by medical records during service and in violation of procedure. These are Mistakes of Fact, Mistakes of Law, and failure to apply proper procedures.

b. No physical examination was employed in the determination.

c. There was no difficulty with Rt. knee subluxation in the five year history (1973 to 1978) until the documented injury on June 1, 1978 and on August 13, 1978 with subsequent documented aggravation.

d. This denial, without benefit of physical examination and with improper application of statutory mandates, further, inappropriately reduced the established rating of 20% to 0%.

Hi,

I guess the best thing is to get your c-file. Having the documents available will be most important.

Also,

I have spoken to other vets that have SC disabilities that are not rated as permanent. The VA is always trying to cut costs and will check their database for those cases where they will attempt to reduce or eliminate benefits. They usually send the vet a letter with whatever they want to do and then the veteran has a time frame to respond. If the vet ignores the letter and the time runs out, then the VA will go ahead with what they stated in the letter. This could be a reduction in compensation or even drop it to zero. The VA is notorious in using incorrect data as fact to do this and it can really mess up a veteran with his/her small income. But if the vet takes a proactive stance within the time alloted and does research to appeal the proposal or gets a new medical opinion stating that they are still SC disabled at some percentage , then they stand a good chance of the VA backing off for another 5 years or so. This has been going on for some time as I understand it.