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mytime34

VA Found/Approved a CUE, but Effective Date is Wrong

Question

Hello All,

Break down of my ratings over the years

2000 - 10% Degenerative Miniscus Bilateral & 10% Tinitus
2007 - Increase for knees from 10% to 20% due to VA mistake of ratings both knees together
2010 - 0% lower back, as a secondary to my knee problems
2011 - 20% lower back increase, due to evidence of range of motion and herniated discs, retroactive to 2010 (Once again VA did not review all the evidence)
(40% rated)
2016 - 20% left knee, 20% right knee, 10% left leg sciatica, 10% right leg sciatica
I am now 70% rated, still waiting for the SOC to be released (but there are still 6 claims that have not been completed)

The letter from the VA states Clear and Unmistakable errors is found in the evaluation of the Degen Arthritis of the Left & Right knee, due to locking, pain and effusion.
The retroactive increase of 20% is established on May 1 2013 (Left Knee) and Jun 11, 2013 (Right knee)
This is where the first issue is, the right knees date is incorrect as they used the last time I filed for a knee increase claim (denied of course), but the dates are still wrong. The Jun 11, 2013 is when I had surgery on my knee and was 100% rated during that month.
The locking, pain and effusion have been stated during every C&P exam and is in every SOC dating back to 2000.
I have filed a NOD for Effective Date and supplied all medical reports, VA visits, C&P exams back to 2000 and have asked for the Effective date to be Feb 20, 2000.

If the VA finds a CUE on their own, does that help my case in the Effective Date NOD?
Is there a cutoff on how far back the VA can retroactive a disability?


Finally received the Final Decision and case is now closed.

20% Degenerative Disc Disease of the Lumbar Spine 5242
20% Deg Arthritus of the Right Knee 5010-5258
20% Deg Arthritus of the Left Knee 5010-5258
20% Deg tears, posterior horn of the medial menisci, bilateral knees 5257-5010
10% Radiclopathy (Sciatica) Right extremity 8520
10% Radiclopathy (Sciatica) Left extremity 8520
10% Tinnitus 6260
0% Residual scar, left knee surgival debrigement 7805

70% rated

I just filed my NOD for an earlier effective date, due to the CUE (Clear and Unmistakable Error) that the VA found during my claim review. CUE was found due to "locking, pain and effusion of the L/R knee)
Because of the CUE they set the effective dates of Feb 2013 & May 2013 (Right and Left knee), but the RO should have reviewed all of my filings and original approval of 1/25/1999.
Each one of the reviews and documented notes states Locking, popping, swelling, instability and pain.
I also called the VA today to see what the next steps were and the lady told me to file the NOD and she was sending a request for review of the CUE effective dates.

Also the VA did not evaluate my Bilateral Hip Condition, which was part of the claim (that is now closed).

Has anyone else had the VA find a CUE? Was it in your favor or theirs? Did you get an earlier effective date?

Thank you

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Not on a cue.It goes back to the date the claim was filed.

 

J

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 I agree with John And

VCAA are not applicable where CUE is 
claimed

your basicly on your own filing CUE

However the board can remand back to RO  & RO issues a SSOC...Usually a Denial of EED & Then they give Reasons & Bases Why

 

 

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Here is the breakdown of my ratings over the years.

The retroactive date is not based upon the claim I filed on 4/28/2016, they went back to my June 11, 2013 claim (which was closed and no appeal filed)

 

10% Deg arthritis Bilateral   (Records and reports show locking, popping, swelling)1/25/1999 - 2/20/2000

(20%)10% Deg arth Bilateral & 10% Tinnitus  (2nd time filing for knee issue and increase with records and reports showing locking & swelling) 2/20/2000 - 2/7/2002

(30%) 10% Deg arth Left knee & 10% Deg Arth right knee (Error found by VA that my knees should have been rated separately)(reports and records still show locking, swelling, pain), 10% Tinnitus 2/27/2000 - 6/29/2011

(40%) 10% Deg Arth Left knee, 10% Deg Arth right knee, 10% Tinnitus & 10% Lower back Deg Arth (increase request for knees due to locking, pain and swelling, denied) 6/29/2011 - 4/28/2016

(70%) 20% Deg Arth Left Knee (CUE found due to locking, pain, swelling), 20% Deg Arth Right knee (CUE found due to locking, pain, swelling), 20% Degenerative Tears, posterior horn medial menisci Bilat knees, 20% Degen Disc diseas lumbar spine, 10% Radiculopathy (Sciatica Nerve) left extremity, 10% Radiculopathy (Sciatica Nerve) right extremity, 10% Tinnitus, 0% Residual Scar, left knee surgery.  4/28/2016 - Present
(CUE for the left & right knee was effective back to Feb 2016 (right knee) & May 2016 (Left knee) as this was the last time I filed for a review of my knees and an increase it was denied.

Every C&P exam that I have had for my bilat knees (1999,2000, 2002, 2003, 2005, 2007, 2009, 2011, 2013, 2016) I have stated that I have locking, pain, swelling, instability, weakness and popping). This is why I am stating that the CUE should go back to the original approval date of 1/25/1999.

I have only filed 2 appeals over the last 20yrs as I was tired of the processes, but they were in the beginning of my first claims.
The CUE was not the result of an appeal or anything like that, it was just found out of the blue by the VA.
Here is the exact wording of the CUE (Left and right knee were given the same answer)

(Left knee)
An evaluation of 20% is granted whenever the semilunar cartilage is dislocated with frequent episodes of "locking, " pain and effusion into the joint.

Clear and unmistakable errors are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made. A determination that there was a clear and inmistakable error must be based on the record  and the law that existed at the time of the prior decision. Once a determination is made that there was a clear and unmistakable error in a prior decision that would change the outcome, then the decision must be revisied to conform to what the decision should have been. In this case the retroactive incrase for degenerative arthritis of the left knee S/P medical meniscus debrigement, (previously evaluated as posterior horn of the medial menisci and DC 5010-5260) is granted as the previous evaluation decision was a clear and unmistakable error.

A clear and unmistakable error is found in the evaluation of the degenerative arthritis of the left knee s/p medical menisci debridement and a retroactive increased evaluation to 20% disabling is established from May 1, 2013. A review of your claim  and VA examination dated June 11, 2013, showed that your right knee should have been evaluated as a meniscal tear with frequent episodes of locking, pain and effusion into the joint. There was no limitation of range of motion, nor objective evidence of painful movement of the knee.

(Right Knee)
An evaluation of 20% is granted whenever the semilunar cartilage is dislocated with frequent episodes of "locking, " pain and effusion into the joint.

Clear and unmistakable errors are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made. A determination that there was a clear and inmistakable error must be based on the record  and the law that existed at the time of the prior decision. Once a determination is made that there was a clear and unmistakable error in a prior decision that would change the outcome, then the decision must be revisied to conform to what the decision should have been. In this case the retroactive increase for degenerative arthritis of the left knee S/P medical meniscus debrigement, (previously evaluated as posterior horn of the medial menisci and DC 5010-5260) is granted as the previous evaluation decision was a clear and unmistakable error.

A clear and unmistakable error is found in the evaluation of the degenerative arthritis of the right knee claimed as bursitis, tendonitis and arthritis and a retroactive increased evaluation to 20% disabling is established from Feb 6, 2013. A clear and unmistakable error (CUE) is an error that is undebatable so that reasonable minds could not differ. A determination of the CUE must be based on the record and the law that existed at the time of the prior decision. Such error must have been prejudicial to the claimant. Once the determination is made that there was a CUE in a prior decision that would change the outcome of that decision that decision must be corrected so as if the former error had not been made. A review of your claim  and VA examination dated June 11, 2013, showed that your left knee should have been evaluated as a meniscal tear with frequent episodes of locking, pain and effusion into the joint. There was no limitation of range of motion, nor objective evidence of painful movement of the knee.

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Yes, Yes, and Yes to your 3 CUE questions, which I think I put in our CUE forum., except the VA didnt find them, I did and they concurred.

"Has anyone else had the VA find a CUE? Was it in your favor or theirs? Did you get an earlier effective date?" 
 

 

but the RO should have reviewed all of my filings and original approval of 1/25/1999. "

Was the CUE filed specifically on that 1999 decision too?

Edited by Berta

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I never filed a CUE, I had no idea what a CUE was until Sept 13, 2016

The VA found the CUE during their review of my 4/28/16 claim.

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