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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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Berta, jbasser and Buck52, 

Thank you for your responses.

Berta, I should have clarified my question. Has anyone ever had the VA find a CUE and approve it, without the Veteran actually filling a CUE or requesting a CUE?

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yes they can.

as for as going back to 1999  I think they found the cue in  Feb 6 2013 and that;s when they pay the retro from.

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 

but you have a good argument with your dates '' reasonable minds'' should figure that out!

 

you can ask them to CUE them self on the dates you mention use as your evidence.

There trying to pull a fast one on you   (Just my Opinion.)

 

Edited by Buck52

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Yes, but it often involves an error they made that diminishes the veteran's compensation.

Like if they write to a vet and said they made a CUE in their 2010 decision to him or her, awarding 70% because they should have only awarded 50%.

They wont collect the difference in that case, and the vet can appeal, but the vet has lost significant comp every month after that decision, that they thought was actually theirs.

However once in a while ( your chances of winning the NYS lottery are better so never rely on this scenario)

VA will call CUE on itself and send the vet more retro because they erred in a past decision.

It can happen but not often.And usually only when the vet reopens their claim and the older ratings are reviewed and VA finds they erred to the veteran's detriment in a past decision.

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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 by Berta

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The evidence is in my medicals files from the service, with locking, pain and swelling episodes and was included in everyone one of my reviews via the VA dr's I have seen (not C&P) and my own dr notes.

I am hoping that is enough evidence to use the 1999 effective date

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