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Cue Back To 1974


nanaeris

Question

I went through my C-file on my original claim that was denied the RSVR stated evidence of record is insufficient to substantiate the claim of aggravation of veteran's pre-service knee condition. I am taking this to mean the VA did not have my service medical records. When I was finally granted service-connection in 2002, after a 3 year fight with the Los Angeles Regional Office. I am filling a CUE claim on the grounds that the VA did not have my records.

This is the letter I am writing.

Please everyone comment on this. I do not know if this is correct.

22 May 2012

TO: DEPARTMENT OF VETERANS AFFAIRS

VA Regional Office

One Veterans Plaza

701 Clay Avenue

Waco, TX 76799

FROM: Eris w. Riley claim

SUBJECT: Early Effective Date

1. Is it the policy of the Veteran Benefits Administration (VBA) Rating Veteran Service Representative (RVSR), Decision Review Officer (DRO), and Appeals Team Members to give Objective Opinions and not Subjective Opinions when rendering their decisions?

2. 19 September 1975 I filed a claim for Osgood Schlatters Disease and Myocarditis.

3. In the rating decision dated 30 April 1976 the RVSR stated the evidence of record is insufficient to substantiate the claim of aggravation of veteran’s pre-service knee condition. Veteran was hospitalized for myocarditis subsequent to service. Both claims were denied.

4. From the statement, underlined in #3, I contend my complete service medical records were not available when the RVSR made his/her decision. Also, when I was hospitalize for myocartitis it was within the presumptive period. My discharge date was 27 November 1974 and I was hospitalized 2 September 1975 which was well within the presumptive period.

5. In the 16 June 1999 decision the Regional Office in Los Angeles, CA again denied my claim for service-connected disability compensation but their was no mention of my service medical records. The only exception was the medical evidence for PTSD. I was never scheduled a C&P exam for PTSD.

6. The Rating decision dated 6 June 2001by a DRO stated although the C&P examiner stated my current bilateral knee disabilities were directly related to military service it does not outweigh opinions of treating indicated in his service medical records. I have yet to get a answer from the VA which treating physician or military medical facility the DRO was referring to.

7. After filing an appeal the Los Angles Regional Office still refused to give me answers even after I pulled the medical evidence from my C-file and took it to Regional Office in person. I had to contact the VA ombudsman, Congressional Liaison, and finally the VA Inspector General to get a objective opinion about my claim.

8. After a three year fight and getting the people in Washington DC involved I was granted disability.

9. I am claim CUE on the initial decision on the grounds the RSVR did not have my complete service medical records. He/she stated evidence of record was insufficient to make the determination my pre-existing condition was permanent aggravated by military service. I am inclosing two MEB which states otherwise (Knees).

10. On the claim of CUE, Title 38 clearly state Myocarditis is service-connected if it is within the presumptive period. I was discharged on 11 November 1974 I was hospitalized 2 September 1975 which would be in that period.

11. On the issue of the torn meniscus, the DRO clearly error when he/she failed to produce a treating facility or physician when he/she disagreed with the C&P examiner. I was treated for chondromalicia, patella tendonitis, and twisted knee, falling on my knee etc. any one of these condition could have caused a torn meniscus.

12. All I am asking for is a objective opinion which should be based on facts and the law. Please do not send me broad answers, but detail answers. I have a hard time understanding VA correspondence.

13. If there is anything I can do to get this matter resolve please advise.

Eris W. Riley

.

Edited by nanaeris
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  • HadIt.com Elder

If the VA did not have your SMR's and made no attempt to get them you may have a CUE. Did the VA mention anywhere that your SMR's had been reviewed? Were your SMR's in your C-File as of the date of your first denial?

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If they did not have the service records and denied your claim then you can use title 38 3.156C to your advantage as they misapplied this reg to your claim and awarded wrong effective date.

Basser

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I agree with the others.

If they did not review your SMR's then 38CFR 3.156c should get you an eed without the increased burden of meeting the Cue standard of review.

The NVLSP has published this guide to earlier effective dates, here, and highly suggest you review it in detail:

or

http://www.purplehea...ease 3.2011.pdf

Edited by broncovet
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You certainly might have 2 ways to go here-all the advise here so far is Great.

I focused solely on this statement:

10. On the claim of CUE, Title 38 clearly state Myocarditis is service-connected if it is within the presumptive period. I was discharged on 11 November 1974 I was hospitalized 2 September 1975 which would be in that period. “

This CUE award decision from the BVA might help you shape a CUE claim if that is how you approach this situation.

“While there were no heart abnormalities or

disorders noted in service, the veteran was found to have

myocarditis in January 1953, well within one year of his

separation from service. Myocarditis was and is a chronic

disease by law. The regulations in effect at that time

clearly indicated that if myocarditis was manifest to a

degree of 10 percent within one year of his separation from

service, then it was presumed to have been incurred in

service. See 38 C.F.R. § 2.1080, 2.1806 (1947).”

And:

“The March

1953 rating decision did not address whether the presumptive

provisions under the regulations for myocarditis had been

rebutted. In fact, that rating decision did not even discuss

the matter of presumptive service connection at all. That

should have been done and, had it been done, it is

inconceivable that, given the veteran’s lengthy

hospitalization and multiple cardiac abnormalities, the RO

could have concluded that these manifestations were not to

the required degree. There was no articulated basis in the

record, certainly no “clear and convincing” medical evidence,

to rebut the presumption.

ORDER

The rating decision of March 1953, in its failure to grant

service connection for a heart disorder, namely myocarditis,

was clearly and unmistakably erroneous, and service

connection for that disorder is granted. “

from:http://www.va.gov/ve...es4/9733058.txt

When was the myocarditis claim filed?

You also stated this:

Veteran was hospitalized for myocarditis subsequent to service

Was VA aware of those records?

Was the myocarditis claim not only claimed under the Chronic Presumptives regs, but also claimed for aggravation of a pre-existing condition?

If you file under 38, 3.156 B there is info here under a search for “Newly discovered service records.”

Personally I think I would file under both 3.156 B for the knee disability (amnd maybe the cardio disability too)as well as file a CUE claim under the CUE regulations regarding the heart disorder.

The above BVA decision is short and sweet.

It is like my CUEs claims were ( 3 consolidated into one by VA)but each legal error only took a few sentences to describe and the actual claim was very brief and on one page.

The list for the legal evidence I used to support it was longer then the actual CUE claim .

I enclosed the exact regulations that warranted the award ( regarding 3 separate CUEs in one decision)and a few documents from VA to include the award letter that was CUEd) that clearly showed VA had established the medical issues at time of the alleged CUE.

We have a wealth of CUE info and discussion here at hadit.As well as on 3.156.

Edited by Berta
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  • HadIt.com Elder

If you can avoid a CUE and get the EED as Bronco says that would be good. I have an old CUE and the standards are just so incredible. Any loophole they can use or make up, but if we are talking 1953

as a possible EED then anything you do including hiring a VA lawyer would be worthwhile. I hired a lawyer for my CUE. The BVA admitted a CUE was made and still denied my claim. Now I am at the CAVC where you may be one day. Don't give up!

John

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