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

[carlie]

As posted already, I agree - go with 38 CFR 3.156c and do not

file for CUE.

JMHO

[Berta]

As John999 pointed out and this point he made is critical:

"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?"

and I need to ask -Do you yourself have a copy of your SMRs?

I am looking at this statement differently then others here:

“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 …...”

My take on this statement is different.

Were the SMRs listed as Evidence in the 1974 decision?

Was the evidence of record missing something critical in the SMRs that the rater had in their possession but failed to consider ?

Or do the SMRs fail to reveal enough information to sufficiently substantiate the claim?

Meaning Did the VA know of any inservice incident that 'aggravated' the pre existing knee condition and/or have any treatment records inthe SMRs for the knee to prove that??

On the 1974 rating sheet was either the knee disability or Myocarditis coded and rated as NSC with a percentage?

Edited June 4, 2012 by Berta

[john999]

Berta

That is just what I was getting at in my post. The SMR's could be in the file, but if the VA did not review them before the decision that is a CUE. In my original claim the VA had evidence in the file they did not review when they made their rating. They admit it. This is 2 out of 3 of the things you need to win that CUE entirely. What the VA would probably say if your SMR's were in the file and they did not review them is that they would have made no difference in their decision. That is weak. What unbiased judge would accept something like that except the VA. When the VA looks at excluded evidence they look on the other side to find even a fragment of evidence to be able to say the excluded evidence would not have "undebatably" changed the outcome of the decision. "Reasonable Minds" are supposed make that judgement as to if the evidence is undebatable. Everything can be debated according to that thinking.

[nanaeris]

Berta, No my SMR were not listed as evidence. In my service medical records were 2 MEB reports stating my condition was permanment aggravated by military service. There were several Profile changes form my knees, several orthropedic reports. The only thing the VA mention was my induction physical was normal but the Air Force doctors stated I had a pre-existing condition. I was in the military 2 1/2 years before osgood schlatters disease was discovered. How the Air Force determined it was pre-existing I don't know. Because this condition usually affect people while they are still growing. From the time I entered the Air Force until the condition was discovered I had grown 2 inches. I was also treated for Chondromalacia, Patella Tendonitis, twisted knee, swollen knees, getting fluid drawan of knee. Before I was granted service connection I had to have a torn menicus repaired. On the decision the DRO stated the torn meniscus wasn't service-connected because my SMR did not show it happen in the military. The DRO made the decision without a medical opinion. The doctor that did the C&P exam stated all my knee disabilities was related to military service. Would this be something else to challenge. I did not know the VA let its people make that kind of decision without a medical opinion.

Thanks everybody again.

Nanaeris

[Berta]

I am confused on the Number 8 statement too in the letter nanaeris posted here.

Did you mean you now get SC for the same knee condition and the myocarditis?

Was the award at that time based on Newly discovered Service records?

Is it possible that VA gave you a “0” SC rating in 1974 for one or both of these conditions and then the disability in time raised to a ratable level ?

Or were either or both disabilities denied a percentage yet gioven the “0' SC rating in 1974 and a subsequent post service situation was proven to have aggravaed the knee condition? Or the heart disability?

Did the VA have the MEB reports and list them as evidence?

BTW it pays to post here again the regs on Newly Discovered Service Records:

Under the provisions of 38 C.F.R. § 3.156(b), it states that

new and material evidence received prior to the expiration of

the appeal period, or prior to the appellate decision if a

timely appeal has been filed, will be considered as having

been filed in connection with the claim which was pending at

the beginning of the appeal period.

Under the provisions of 38 C.F.R. § 3.156©(1), it states

that at any time after VA issues a decision on a claim, it

receives or associates with the claims file relevant official

service department records that existed and had not been

associated with the claims file when VA first decided the

claim, VA will reconsider the claim. Such records include

service records that are related to a claimed in-service

event, but that such records do not apply when VA could not

have obtained the records because they did not exist or

because the claimant failed to provide sufficient information

for VA to identify and obtain the records. Id. at ©(2).

An award made based all or in part on the records identified

by paragraph ©(1) is effective on the date entitlement

arose or the date VA received the previously-denied claim,

whichever is later, or such other date as may be authorized

by the provisions of this part applicable to the previously-

denied claim. Id. at ©(3).

[Berta]

. "Before I was granted service connection I had to have a torn menicus repaired. On the decision the DRO stated the torn meniscus wasn't service-connected because my SMR did not show it happen in the military. The DRO made the decision without a medical opinion. The doctor that did the C&P exam stated all my knee disabilities was related to military service. "Would this be something else to challenge. " Yes-did you NOD this in time and what is the staus of the appeal now.

Can you possible cover all personal identifying info on your award letter for service connection

and scan and attach that letter here?