Is It Cue For Va To Fail To Cite 3.344 (5 Year Standards?)

[AF1982]

Is it CUE for VA to fail to cite 3.344 (5 year higher standards) and instead only cite 3.105(e) in a proposal to reduce?

I just battled over a year and won where they tried to sever me entirely.

Now they have just came back (a little bit angry maybe?) trying to reduce my 60% status knee replacement (replaced twice) with a 30%.

Don't they also have a do a complete exam (and not just a couple of select body parts?)

VA also didn't mention my secondary claims of lower back, left hip and now what was my good knee (right knee). I thought they had to do a review of my entire medical condition (maybe Brown v. Brown and in relation to the 5-year stabilization requirements 3.344.

They didn't do a complete or even accurate c&p (the report left out important information, which luckily my wife documented/recorded and so we can prove).

I think the RO is a little upset for losing the CUE against me.

I appreciate any feedback. Thanks guys and gals!

[john999]

Phrases like "outcome determinitive" and "undebatable" are things that the VA wishes to be objective criteria but they are subjective according to whom is looking at the evidence or law. For instance, if you submit an IMO that cost you $3000 and the VA totally disregards this IMO and makes their decision solely based on evidence from a QTC exam I would say that is an undebatable error, and would be outcome determinitive(depending on the evidence and its quality and the number of PH.D.'s and MD's your IMO has to his/her name).

[SC NOT]

I filed a claim for lower back in 2006 after having to leave a job because of it, I was only separated from the service 6 months. I missed the c&p exam(personal) and got denied in dec 2006. Back pain continued but I was not even sure I was going to go through with the claim, I was just anxious to get to work again. Feb 2008 I go va hospital to treat a fractured foot and was asked as routine if i had any other problems, i replied well I have always had this lb pain and general burning of most of my back, I had no intentions to reopen my claim. They did xrays at the va and found arthritis. I reopened the claim had a c&p and was denied for non continuity of treatment since departure from service and lack of chronicity during service ,I appealed but my IMO did'nt write a rational he just filled out a short connection questionaire indicating most likely than not, va sited his lack of ability to review smr's although I showed him their denial letter stating I was diagnosed with lumbago in service, so my IMO was aware of an inservice diagnosis, anyway

I returned to the original denial letter from the first claim that was subject to new and material evidence in order to be reopened. This is where I realize how cruel our fellow humans can be. My original denial letter for the first claim that I submitted 6 months after service stated clearly that injury in service was chronic and the examination was to establish risiduals (Presumptive service connection), so thechically all i had to do was show up and get at least 0% but when the case was reopened in 2008 and denied the c&p examiner said the only diagnosis i ever had was ddd at the va and he completely ignored my msr lumbar diagnosis and episodes showing clear chronicity. to make matters worst he specifically stated that there was no chronicity in msr' s when the first claim says chronic in service injury. Thats not it, the first claim was denied because I missed a c&p to establish residuals for an obvious chronic inservice injury, instead of using the c&p examiners diagnosis of arthritis as the new and material evidence used to substantiate the claim, they said that signing vcaa letter was new and material evidence because of intent to attend the c&p and they reopened the claim, when in reality I already had a vcaa in the original claim so thats redundant evidence, showing up to the c&p with arthritis, i think that would be all I need and continuity of treatment is not applicable because my original case is based on presumption awaiting c&p for residuals of something manifested within a certain time period. On my second appeal they just totally removed the original denial letter showing presumption out of the evidence. Did mri and found two herniated discs, ddd, scoliosis. My Va doc works at the same va facility with the c&p doc and he wrote me a letter confirming sc and filled out a more likely than not questionare. I have a buddy statement on my way from my squad leader who encouraged me to return to sick call, so she was in a way directly involved, also working on a letter from a supervisor when i left because of the inservice injury, I figure I can beat them anyway because the truth is on my side, the case is at DRO, I also added Iu and have a diagnosis for mood disorder with depressive features due to ddd and herniated disc,scoliosis. Do I have a cue, should I wait for dro to decide on continuity of treatment and depend on the new va docs IMO nexus to tip the scale in my favor with the DRO, what can I do with these obvious errors. there is a couple more I did nt mention

[Berta]

"Do I have a cue, should I wait for dro to decide on continuity of
treatment and depend on the new va docs IMO nexus to tip the scale in my
favor with the DRO, what can I do with these obvious errors. there is a
couple more I did nt mention"

No Not anywhere near at this point.

Do you mean you have requested a DRO hearing?

Can you possibly scan and attach here (cover identifying stuff) the SOC tht prompted the DRO request? Please include the Evidence list they used.

[SC NOT]

Thanks Berta the case has been at DRO since oct. 2012 also i could nt figure out how to attach the documents, I will post as soon as i figure it out

[carlie]

Thanks Berta the case has been at DRO since oct. 2012 also i could nt figure out how to attach the documents, I will post as soon as i figure it out

When you want to post - please start a new topic under the forum it relates to.

Tis way the OP's topic doesn't get over run.

Thanks