Cue And Severing Service-Connection

[AF1982]

Dear Hadit; First, let me start by apologizing for posting on the wrong forum. I did not mean to hi-jack anyone else's post.

Second, I was asked what month in 2002 my SC was established. My C&P was in July and my grant was in October, 2002. I went through Voc Rehab 2003-2005 due to my qualified disability. If anyone has questions, please feel free to ask. Thanks!

REPOST from yesterday:

I have just received a severing decision to my sc knee. The decision argues within itself...; it acknowledges my dislocated patella in the service and that a later automobile accident doctor verified it was an old injury, reaggravated by the accident.

Due to the area of AF service I was in, after I received my honorable discharge in 82 I just wanted to forget the military existed and wanted to try to move on with life. I was never one to run to doctors with my discomforts, as those who know me attest.

My knee was always a problem after the service injury; I just dealt with it, using my sleeve-brace and avoiding certain physical things when the knee would flare up.

7 years after my service I was in a work-related auto wreck and reaggravated my knee. The work-comp doctor documented it was an old injury reaggravated.

In 2002 my knee was at the point where it was dangerous to me. I'd already had one fall and the constant locking and swelling was driving my wife up the wall. So, I sought VA Voc Rehab and was told I also qualified for SC benefits. My disability was evaluated and recognized at 20% at that time. I wasn't seeking SC benefits, only Voc Rehab, but VA said I qualified for both. I told them about the 1989 auto wreck, as I had no intention to lie to them and they asked for my history. I was approved for Voc Rehab and SC disability at 20% in 2002.

In 2005 my rating went to 30%. 2006 and 2007 I had (2) knee replacements (of my problem knee). The 2nd was due to the first messed up by the VA doctor. My rating went to 60% and my back, neck and hips (and good knee) have been affected by my shifted body-weight being carried.

Following a dismissed med-mal suit against the VA surgeon of the 2006 knee replacement, the VA (U.S. District) attorney emailed VA claiming my disability-injury was not service-connected. This claim was NEVER MADE or even INFERRED, during the lawsuit. This attorney is NO LONGER a U.S. District attorney, as he left that office when I requested a FOIA of his notes and contacts concerning his claim.

My Congressman is involved, and has been the ONLY WAY my attorney and I have been able to get VA to respond to our letters and/or his legal requests in the matter. I have requested an electronic copy (email) of the Sever Decision, and when it is received, I would greatly appreciate your input.

Thank you - I look forward to hearing back.

[Berta]

I suggest that you continue to appeal this and I assume you have filed an I-9 already or still have time to do that.

Philip is making good points as to the potential of the protected status and posted the exact reg here too.

If that approach doesn't work (and you need to try EVERY approach possible here)

I suggest strongly to try obtain an IMO.

Because the VA raised some very strong rationales for the severance.

That could only be overcome by a strong IMO in my opinion.nless that reg here works in your favor.

I also suggest you acquire a lawyer.

The good thing, if there is any good thing here, is that the VA CUEd itself on the past award, meaning they cannot attempt to recover any past SC they sent to you.

I didnt have time to read all those BVA decisions yet and they do reveal how these reductions can be restored.

In that way they can help you shape your approach and support the appeal, with medical documentation that they either misinterpreted or didnt consider.

The BVA cases themselves will not be considered as evidence by the board, unless you can determine a legal finding in them, stated by the BVA, that would support your claim.

(Such as the ten year protection)

And a strong IMO, in my opinion, is your best bet here as well and a lawyer would surely suggest getting one too if the rotection reg doesn't apply.

Also I would first try to contact any lawyer named on any of these restoration cases that succeeded at the BVA because they have experience already with this type of claim.

And mention the points Philip made first to the lawyer.

It would be GREAT if his advise alone can nip this in the bud without need for a costly IMO.

Edited June 10, 2012 by Berta

[AF1982]

How many exams did they do?

J

Although the Decision claims a C&P, there was no exam done. Their 'reviewer' was 600 miles away. Found some awesome cases on the 10 year protection and will provide them to lawyer.

What is an I-9? (somebody mentioned filing one).

Thanks again!

[Berta]

http://www.va.gov/va...f/VA4107VHA.pdf

This explains the I-9 which the VA always attaches to an SOC.

The VA is rigid on the appeal deadline of one year..

My BVA remand years ago below in part shows the only exception to the year deadline I am aware of.

"The claimant perfected her appeal with regard to service

connection for the cause of death by filing correspondence

accepted in lieu of a VA Form 9, Appeal to Board of Veterans'

Appeals, in January 2006. Although this was outside the one

year period from the February 2004 denial, and beyond the 60

day period from issuance of a statement of the case (SOC) in

September 2005, the claimant submitted or caused to be

created additional evidence requiring the issuance of a

supplemental statement of the case (SSOC) in December 2005;

therefore, the time for perfection of the appeal was

extended. 38 C.F.R. § 20.302(b)(2) (2008).

What the BVA meant by this :

"the claimant submitted or caused to be

created additional evidence requiring the issuance of a

supplemental statement of the case (SSOC) in December 2005;

therefore, the time for perfection of the appeal was

extended. 38 C.F.R. § 20.302(b)(2) (2008)."

I got them to CUE their initial decision by making an enormous stink.

I went through the Same BS this past December.They fixed that decision fast too.

(I called the 800# in December 2011 and the rep really thought she was reading the info wrong. Denial Dec 6th, decision December 16th.

I told her she was reading it correctly and I already knew the decision was an award.

I am unaware of any other documented similar situation that could possibly extend the I-9 deadline. But felt maybe this info might help someone else here.

The I-9 ,next to the NOD is one of the most important documents we can ever file with the VA.

Edited June 10, 2012 by Berta

[carlie]

Here's some study material regarding

Severance and CUE.

Scroll down to Chapter 8

and click on

Section E

- Other Due Process Concerns

http://www.benefits.va.gov/WARMS/M21_1MR3.asp

[AF1982]

I found out the IMO VA used has credibility issues. Sanctioned for sexual behavior in one state, failed to disclose in at least 2 more states, including the one being used by VA. L&I in first state fined him and took him off their approved list. Among other things, was ordered to see a psychiatrict in the state VA used him in.

Is there anything out there about VA must use credible medical folks for their "independent" (LMAO) medical opinions?

[john999]

You could attack the VA's doctor exam on some basis of incompetence, but I think it is better to get your own IMO as well as trying to undermine the VA's man. As long as the VA has accepted the IMO doctor and knows about his past it probably won't help you to dwell on his problems. What you want is your IMO to attact the facts and method of your VA doctor's exam backed by medical evidence.