Clear And Unmistakeable Error

[mobie16r]

Hello Berta, I need some advice on CUE,that i am helping a veteran with. This veteran served in the army from July of 1974 to October 1984.He filed a claim when discharge oct 1984,for left knee and back. Claim was denied,July 1986,appealed,denied again in Sept 1987. THE REASON:The rater's statement; i have throughly went through the veteran military Medical Records,he hurt his Lknee and back,during basic training july 1976,records show,that he had a little tenderness in Lknee,and a ace bandage was used,he hurt his L knee working with chisel October 1977,treaments show,contusion,tenderness,no follow ups and also he had a motorcycle in June 1980,and hurt his leg,but none specific,.I throughly went through this veteran MMR and he have a extensive amount of other disabitilies that show treatments,but ENTIRELY NEGATIVE of any other diagnosis or treatments for a chronic L knee disability nothing said about his back. (claim denied) Claim denied at the Board of Veterans appeals October 1992, military medical records before the Ajudicator. Failure to applied propertly 38 CFR 3.1 (m).

I throughly went through the veteran MMR and like the rater said,he have a extensive amount treatments and he right,the 8+ years he serve in the army,he definite, went to to the doctor.

I founded in the veteran MMR, from 1976 to 1984 at least seven times where he had treatments for his L knee ,ten times treatments for back,and 8 times for low leftside

and during one treatment in march of 1978,recorded in mmr that he had a limp. His MMR was before the rater at time or Decision at the regional office in 1986,and BVA decision 1992.all of his MMR is dated October 1984.

APPEAl is final

Do it look like a CUE? Anyone can response,but i kno from the time i been member at Hadit, since 2004 BERTA is the expert.

[Berta]

Has he ,since the last denial, been able to establish service connection for this disability?

Can you scan and post here with his permission, the last decision he got from the VA.

(cover his c file number, name and address prior to scanning it)

He might have a basis for a claim under 38 USC 156:



Can you give us the Citation number and docket number for the BVA denial?

It is hard to even guess what he can do , at this point, as we dont have enough info.

Has he received continuous medical treatment for these disabilities since service?

"I founded in the veteran MMR, from 1976 to 1984 at least seven times where he had treatments for his L knee ,ten times treatments for back,and 8 times for low leftside"

[Berta]

CITATION NUMBER 9224425.and ] DOCKET NUMBER 91-18 66


The BVA decision makes important points:

"However, it should be noted that the
treatment records covering the period of the veteran's basic
training were lost in service. A December 1976 physical
examination conducted following basic training was negative
for a left knee disability. Again, the veteran did not
report any disability on his medical history, and he denied
having had a "trick or locked knee". In May 1986 VA
examinaton reflected an impression of negative left knee
except for the possibility of a torn meniscus. Service
connection was denied on the basis that the injury to the
veteran's knee during service was acute and left no chronic
residuals.

The additional evidence submitted by the veteran is both new
and material. The treatment records show that the veteran
has been seen consistently for left knee pain since
discharge from active service. In addition, some of these
records note that the veteran has had a positive McMurray's
sign, and has also undergone exploratory surgery on the left
knee. Finally, the veteran's testimony at his personal
hearings contains new contentions regarding the origin of
his disability. None of this information was before the RO
at the time of its July 1986 rating decision. Similarly,
this additional evidence is also material. It demonstrates
that the veteran possibly has a chronic knee disability, and
that he has received treatment on a basis consistent enough
to possibly establish continuity of symptomatology. This
presents a reasonable possibility that the decision of the
July 1986 rating decision will be changed. Therefore, the
veteran's claim is reopened.

. Since the service
medical records which show treatment for the initial injury
of the veteran's left knee in 1976 are missing, this section
will accept the veteran's contentions regarding the
circumstances of this injury. However, the evidence
indicates that this injury was acute and transitory since
there was no history or complaint concerning the left knee
and the knee was normal on a December 1976 examination,
after basic training. The remainder of the records are
negative for any treatment of a left knee disability, with
the exception of two incidents, in October 1979 and April
1980, in which he hit his knee. Chronic residuals again
were not shown. June 1980 records do show treatment for a
soft tissue trauma to one of the veteran's legs, but the leg
that was injured is not specified. There was no followup
treatment for this injury nor was it shown to involve the
left knee joint. Therefore, while the records are clear
that the veteran was seen for a variety of other complaints
during service, the final four and a half years of active
duty are entirely negative for any indication of a chronic
left knee disability."

But this is the most important point they made:
" The majority of the medical
examinations have been negative for a chronic knee
disability, and all X-ray studies have been negative. There
is no evidence of arthritis of the knee. Both exploratory
surgeries have been negative for a knee disability.
Therefore, in the absence of service medical records to show
that the veteran developed a chronic disability during
service, the absence of post service medical records to show
that the veteran developed arthritis of the knee during the
one-year presumptive period following active service, and
the absence of medical records to indicate that the veteran
has current knee pathology, service connection must be
denied."

http://www.va.gov/vetapp92/files3/9224425.txt

He could re-open this claim under 38 USC 3.156 , if you find any SMR that might probatively indicate a 'chronic' knee disability, or any inservice manifestation of arthritis of the knee, during the presumptive period, as the BVA stated but they also stated
he had "no current knee pathology". and that is a very problematic statement.

The VA cannot compensate a disability that has no 'current parthology. and that is why I asked

"Has he received continuous medical treatment for these disabilities since service?"

If he succeeds on this claim with a re-open and he does have a current knee disability,by medical evidence , (This will take a very strong IMO I am sure),
then he might have a basis for CUE on the older decision.

Others will chime in here too.

I see no CUE basis and there may not even be a 38 USC 3.156 basis.

Have you gone over his entire medical records established since 1992 to find evidence of chronic and current knee disability and treatment for it?

[mobie16r]

Discharge from the army October 1984

File claim October 1984 6, days before discharge

Had surgery L knee July 1985 less than one year after service,was given a brace to wear.,still wearing brace today.

had surgery Lknee 1987 ongoing treatments

He hurt his left knee in basic training,July of 1976,records lost

On his military physical Report form 93. He checked that he used a brace,didn't say which knee.

Had treatments for pain down left leg 8/10 /1977( limp when walk)

Treatments for for pain Lknee 9/07/1977 less than month

Hit jis left knee working with chisel 10/4/1977

had follow the next day 10/5/1977 tender over Left Tibial plateau swelling

1977 treatments for lelt knee,had pop.pain down left leg,limps when walk. 03/21/1980

april 1980 ,treatments on left knee, hit on door

June 1980 motorcycle accident, hurt left leg

2 more treatments in 1981.

[Berta]

Without being able to read the actual denial here, it is impossible to opine on what he should do.

.

If a re opened claim is successful, then he could file CUE on the older denial...if the knee problem should have been ratable at least at 10-% upon discharge.

[mobie16r]

Thanks Berta ,I got you.

mobie,16r