Cue?

[dougbo1943]

I was service connected and rated 0% in Feb. 1982 for left medial meniscectomy. I received my C file today and a copy of the my military medical record was included. It clearly showed a left medial meniscectomy while in service and the VA acknowledged it when they SC it and assigned 0%.

They used diagnostic code 5259 "Cartilage, semilinar, removal of, symptomatic.............10%. The way I read Appendix A to Part 4 the code has not changed since 1946.

Should I Cue it or ask them to reconsider the claim.

Thanks

Gunny

[Guest jstacy]

If they lowballed a decision and you meet the criteria for the 10 percent rating, Then you should file a cue claim based on the fact the VA did not follow the correct rating procedures in the original claim.

[Vike17]

Gunny,

In your case it probably isn't CUE. According to the rating schedule, there isn't a specific Diagnostic Code (DC) for removal of meniscus, so the VA assigns a DC that most closely represents your condition. In your case removal of the cartlidge. Evaluations of medical evidence and assigning a particular evaluation is a judgmental call made by the rating board. This is purely a judgemental call on the rating specialist and judgmental calls, however bad they may be, are not CUE's.

If according to the C&P exam you had stated a limited range of motion that warranted a higher evaluation under one of the other Diagnostic Codes for the knee, then the VA should have awarded the higher evaluation and assigned the other DC. However, this still does not constitue a CUE. If that was the case, you should have appealed it within the one year from the decision.

Here is an exerpt from the CUE criteria.

"Examples of situations that are not CUE error are; a changed diagnosis that "corrects" an earlier diagnosis; the Secretary's failure to fulfill the Duty to Assist (DTA); evaluation of evidence (a disagreement as to how the facts were weighed or evalutaed and a change in interpretayion. Clear and Unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation."

Vike 17

Edited September 28, 2006 by Vike17 (see edit history)

[Rich T]

While we're talking about the meniscus, I have no meniscus in either knee due to osteoarthritis. Last May I got three shots of Synvisc http://www.synvisc.com/ in both knees. They made my knees very stiff, but after awhile I really appreciated the shots. My knees don't bang together as much. The shots seem to be wearing off now, and I'll ask my Ortho (Not VA) doc if I can get another set of shots as soon as I get back to Florida.

Edited September 28, 2006 by Rich T (see edit history)

[john999]

The VBM says that CUE is a rare type of error in law so what we may see as a blatant error may not pass the VA's CUE test. However, you don't know until you try.

[Guest jstacy]

The only way to get any retro is to file a cue claim.