New Guy

[2 Dollar Bill]

Just wanted to introduce myself. I was in the Army from '86 to 9/90, when I was chucked out (honorabley) with 5 days notice, a daughter and wife 8 months pregnant, because I injured my knee and both ankles from a 30' fall from an obstacle on the Air assault course in '87. Went 3 years and an overseas tour on a temp profile. Got 10% out of the Army, but that all went back to the Army for years to pay back the $8500 in severance pay I received, which all went to the hospital for the birth of our second daughter. Anyway, I fought with the VA for awhile but they wore me down, I was working full time and going to school full time.

20 some years later, my buddies convinced me to go back to the VA and, after a little prodding from the DAV (I'm a life member), they upped it to 30%. Wow. The thing I'm wondering about is that the VA denied the claims on my ankles from day 1. The initial paperwork on the claim filed in September of 2010 said I was asking for re-evaluation of my knee and an eval of my ankles as injured over time due to my knee. I argued with the first VSO I talked to because I've had the ankle injuries from '87. He told me there was no way the VA would consider that. Well, when I got the decision 2 days ago, the VA states that although I based my claim on my ankles being injured over time due to knee problems, that my ankles were, in fact, injured during the initial fall in '87!!!

This opens up the question: Is there any way the VA would, or could be forced to give me back pay?

Well, I'm rambling on. For the last 20 years, I've suffered thru this, joined the DAV and worked to get the word out to vets and active duty members that the VA is not your friend, no more than the DA. I've worked at Ft. Campbell since '95 and talked to alot of folks coming home and the word seems to out pretty well that you have to cover your butt these days when you get out. I had no such help when I got out and I know alot of you guys didn't either. No matter what your branch of service or where you served, we all wrote a blank check to Uncle Sam when we signed up, but that's no excuse for the way vets are treated by the system.

Best Regards to All,

Bill

[2 Dollar Bill]

Did the evidence at time of the 10% award cpnsider the ankle injury? Yes, it was considered but denied besause there was no"X-ray evidence".

"the VA states that although I based my claim on my ankles being injured over time due to knee problems, that my ankles were, in fact, injured during the initial fall in '87!!!"

Do you have the 10% decision from VA? Yes, for the right knee injury.

Pete is right. The C file might reveal what you need to file a CUE. What is a "C" file? OK, I got it. "Claims" file.

Do you have your complete SMRs and any MEB/PEB documents? Do not know. I will have to research and find out what these documents are.

There is a wealth of info on CUE claims here in our CUE forum.

The final and unappealed decision you got for the 10% is where the CUE occurred if they in fact committed a CUE.

If the ankles had no rating and no diagnostic code at all-that would surely be a CUE.

But a CUE has to manifest an 'altered outcome'= VA double talk in CUE regs meaning-

the CUE cost you compensation because the medical evidence revealed it should have.

Maybe the VSO would be more supportive and help you file a CUE claim when he/she reads the statement above from the VA.

I would say, based on what you have said, that a CUE would not work, because they said there was no evidence. But I do have a question about another way to go. Would it be appropriate, because the current rating I received states that the ankle injuries occured during the original injury, for which I was awarded a 10% rating, should I appeal the current effective date of 9/16/2010?

Edited June 19, 2011 by 2 Dollar Bill

[Berta]

"Yes, it was considered but denied besause there was no"X-ray evidence"

Oh- that shoots down a CUE.

If the effective date is the date of your claim, that date is probably the correct EED.

Does the EED correspond to the date you filed?(9/16/2010)

[2 Dollar Bill]

I'm not sure I understand. My original claim, were I was awarded 10% for my R Knee, but denied for both ankles, due to lack of "evidence" was October 1, 1990.

September 16, 2010, I was again evaluated at my request. It was determined that both ankles were injured back in 1987, at the time of the original accident. I was awarded 20% (10% for each ankle) and continued the 10% for my R Knee.

In the "Reasons For Decision", received about a week ago, there is the statement in both decisions on my ankles, that reads "Although you claimed this condition as secondary to your service connected right knee condition, the granting of direct service connection is warranted. You had a bilateral ankle injury in-service and have a current ankle condition which the VA examiner opines is due to your in-service ankle injury".

Basically, I injured my R knee and both ankles in a 30' fall in 1987. I was discharged in 1990 because of the injuries, but was only granted 10%. I went to the VA in October 1990 and they denied my claim on my ankles. Now, in 2010, they have granted my 10% per ankle and stated that it occurred during my time in-service. That is why I ask if I should appeal the effective date on September 16, 2010.

[Berta]

If they had significant evidence that the ankle injuries were ratable at that time ( at least at 10%)yes by all means appeal this.

There is a topic ere under Newly discovered service records.

In some way that regulation might help you acquire a better EED.

I guess my point is this- a vet could have an inservice injury rated at "0" SC which could get worse in time and they should claim it has increased in disabling affect.

Or the rating at time of a past decision could be wrong because there were service records the VA didn't have yet were brought to their attention at a later date.

The legal citation is in this post:

You could certainly file a CUE too-but a CUE depends on established medical evidence -

I wonder if the lack of X ray would be a reasonable reason not to rate the injury and I hope others will chime in as the VA has certainly noted there were injuries to the ankles in 1987 so the VA did have evidence of that fact.

[Philip Rogers]

Personally, I'd file for an EED and if that fails then I'd go for a CUE. In the original claim, in 1990, did they do a C&P exam?? They would have been required to do a C&P exam, if there was evidence of the injury, which there was, due to the service records. If they failed to do a C&P and/or x-rays, I believe it could be a CUE. Either way, I'd attempt the EED claim first and a CUE later, if the EED is denied. jmo

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