ptsd Cue Back To 1974

[nanaeris]

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 June 13, 2012 by nanaeris

[john999]

If the VA made a decision without getting a C&P exam that is not grounds for a CUE. I know because I tried that. If they did not give you appeal rights that also is not CUE.

[broncovet]

Well, the VA is repeatedly required to follow its own regulations. And, they are required to do their DTA (duty to assist). However, failure of the VA to do its dta is specifically exempted from CUE. I think they use the word "harmless error". In other words they say that gee...the VA blew it on DTA but that is not "outcome determinative". Outcome determinative error is required to meet the cue standard.

John is right. The VA does not have to have a C and P exam...either to approve or deny. They can do either if the medical evidence is sufficient. The idea is that a C and P occurs when there is not enough information available for the VA to make a decision.

However, Nan posted, "The Smr's are not listed as evidence". I think if the VA failed to consider "all evidence of record"..then that is CUE if it was outcome determinative.

Further the VA has to cite "reasons and bases" when apparently (Veteran) favorable evidence is rejected.

When I see "SMR's are not listed as evidence", I immediately think 3.156C and not CUE. Remember 3.156 c says the service records need to be related, that is a whole different standard than "undebatable".

[john999]

Bronco

Yes, undebatable standard is almost impossible to meet. My CUE is stalled because VA says a phrase in my hospital record from unknown source is equal to complete excluded medical report making my CUE debatable. The VA based their decision on hospital evaluation at VA hospital. Somebody said I seemed to get on well with other mental patients. Thus "my" private doctor's complete report is debatable when he said I was unemployable and incapacitated. The VA also gives me a good kick in the ribs by saying that "no matter how unfair a rating decision is that can never raise to a CUE". For evidence to be "outcome determinative" there has to be no other evidence on the other side that could in any way make the outcome debatable. This is what BVA said in my claim. I say this is impossible standard since I was in the nuthouse and some goon wrote in my recor I got on well with other nuts. Now I am not giving up and neither is my lawyer, but Good Grief, Charley Brown!

[carlie]

However, Nan posted, "The Smr's are not listed as evidence". I think if the VA failed to consider "all evidence of record"..then that is CUE if it was outcome determinative.

No, it's not a CUE - all the VBA needs to do is acquire the SMR's and if appropriate

apply 3.156c towards adjudication of the effective date.

[john999]

If other evidence was excluded that was in the record at the time then you may have a CUE. SMR's are a special case and a good case.

[nanaeris]

yes other evidence was in my SMR, patella tendonitis, chondromalacia, removing fluid from knee, twisting knee. I am rated now at 30% each knee for osgood schlatters disease, chondromalacia, and osteoarthritis.

I did not know at the time that a torn meniscus repair got a seperate rating, I guess that why the DRO stated it did not happen in the military without a explaination. I injuried that knee, had swelling, had fluid removed and had a profile change. I think this would be enough to make this service connected. I am getting ready to have surgery on my other knee for the same thing. I think this has something to with the osteoarthritis which I am already service-connected for.

On using 3.156c, do I just state I am requesting a earlier effective date, or do I need to go into detail why?

No the VA did not rate me in 1974, just denied me. The Air Force had rated me at 20% on the two MEB boards. There is no mention of any of this or any other thing from my service medical records. The only thing the decision stated was my induction physical was normal and he/she did not have enough information to make a determination whether osgood schlatters disease was aggravated by military service. On the heart condition, there was no mention of the heart murmur discovered in military, the reported joint swelling, dizzinesses, all of this is in my service medical records.