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

[mytime34]

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

[Berta]

"I am in the process of going through my military medical records, my records since discharge, along with the XRays and MRIs for my CUE letter."

You probably wont need all that. If the VA makes a CUE , it is found in a past VA decision.

The date of the decision has to be identified and than the legal error (s) in that decisions have to be identified in the CUE claim.

In October I replied  here to you :
"I lost part of more detailed reply in hyperspace- due to high winds.....

If the 1999 decision warranted a higher rating then, by established medical evidence that was in VA's possession,at time of that 1/25/99 decision, and via VA case law and regs existing at that time, then  that is the decision to CUE for more retro.

Edited October 5, 2016 by Berta"

But there are really no more details I can reply with.

If they committed a past CUE in the 1999 decision, it is the decision itself ( to include the rating sheet and evidence list) that holds and defines the basis of the CUE.

The last 2 successful CUers here, were able to either state verbatim here or attach the actual decision they felt contained CUE. 

http://community.hadit.com/topic/68491-spo-won-his-cue-claim/

And Allansc2005 won his CUE claim.

Without seeing decisions that might contain CUE, we are completely in the dark when trying to give advise.

 

 

 

.

[mytime34]

Berta, 

Thank you for your response.

 

I called back to the VA lady "Susan" about my NOD being removed and she stated that the CUE they found was for the decision from 2013, it was incorrect and they retrod my rating back to 2013. She also stated that I could not file an NOD for the effective date. Which it seems like she is wrong.

I am going to file a CUE for the effective date and the change in rating that was backdated to 2013.

 

Thank all of you for your responses.

[mytime34]

I received this for the left and the right knee, but I am only posting one.
Issue/Contention    
Degenerative Arthritis of the Right Knee (Previously evaluated as, posterior horn of the medial menisci) Claimed as bursitis, tendonitis and arthritis (previously DC 5010-5260)
Old %
N/A
New %
20%
Effective Date Feb 6, 2013

Explanation:

An evaluation of 20 percent 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 previous decision was fatally flawed at the time it was made. A determination that there was a clear and unmistakable error in a prior decision that would change the outcome, then that decision must be revised to conform to what the decision should have been. In this case, a retroactive increase for the degenerative arthritis of the right knee (Previously evaluated as, posterior horn of the medial menisci) Claimed as bursitis, tendonitis and arthritis (previously DC 5010-5260) is granted as the previous 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 increase evaluation to 20 percent disabling is established from February 6, 2013. A clear and unmistakable error (CUE) is an error that is indebatable, so that reasonable minds could not differ. A determination of CUE must be based on record and the law that existed at the time of the prior decision. Such error must have been prejudicial to the claimant. Once a determination is made that there was a CUE in a prior deciont 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 right knee should have been evaluated as 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.

As I stated before my military medical records do show locking, popping, swelling and pain in both knees, along with dr notes and my own written notes from 1997-2013.
The only reason I filed again in 2013 is that my left knee hyperextended and I had to have surgery on my left knee. I had debridgement done and bone spurs removed. It was also noted that I have a bakers cyst on my left knee

[mytime34]

Here is the response to cancelling the NOD

 

We have determined that we cannot accept your letter as a Notice of Disagreement. The issue of an earlier effective date for your bilateral knees has been finally decided and/or dismissed on several occasions and was not included in the rating decision which you identified on your correspondence.

[Berta]

"I am going to file a CUE for the effective date and the change in rating that was backdated to 2013."

You will need to identify the date of the older decision and clearly state the legal error they  made regarding the rating for the bilateral knee disability.

It is difficult to interpret this  statement but they seem to be referring to an older decision, whereby you claimed bilateral knee disability, but it was denied. 

"We have determined that we cannot accept your letter as a Notice of Disagreement. The issue of an earlier effective date for your bilateral knees has been finally decided and/or dismissed on several occasions and was not included in the rating decision which you identified on your correspondence."

It sounds like there was more than one denial.

 

 

 

[mytime34]

Berta,

 

Ever since my first filing I have been fighting the va to rate my knees correctly. 

The first denial was back in 1997 and the VA said there was no evidence, it took me 2 yrs of private dr visits, Xrays, MRIs and therapy and showing that before I went in I had a clean bill of health.

Initial approval for service connection was granted 1/25/1999, but they rated both knees together at 10%, which is wrong each knee should have been separate, on 2/2/2000 they changed my rating to 20% bilateral knees. I filed an NOD that the effective date was still wrong they should have gone back to my filing in 1997 due to having to provide proof that my knees were SC. 

I filed for re-eval and effective dates and was denied in 2000, 2003, 2005, 2007, 2011, 2013. I did not fully understand the appeal process and I was working on my own, as the local VSO was no help at all and I was not sure who to turn too. In 2013 I had reached the limits with my knees and had surgery on the left knee, I was given 100% short term rating from surgery and than my rating when back to 20% bilateral knees. In 2015 I filed again and that is when they found the CUE that my knees should have been rated at 20% per knee due to "locking, swelling and pain".

My contention is that in my military medical records there is clear evidence of knee issues (which I am SC'd for) and that the VA should have granted SC dating back to 1997.

I was really caught off guard when the VA found the CUE and back dated to 2013, specially since I have been providing evidence that the locking, swelling and pain have existed since the beginning.

 

I am going to review all of my military and private records in my C-file, along with each of the denial letters and the laws that were applicable from 1997 to 2013.

I am also going to file a CUE on the effective date for the knees and as another forum member posted I will highlight in red all of the records that show the knee issues over the years.

 

Thank all of you again for the responses and I think I have a idea of where to go and how to get there.