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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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You asked:

"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? "

The ability for VA to call CUE on their own is comparable to winning the lottery.It does not happen very often.

I have seen decades of retro paid out,usually involved WWII vet claims.

"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."

Hope wont do it.You might get lucky but I never depend on luck.

Even though this appears to be a CUE award you received , you can still file a CUE on the award.

I sure did.Nehmer resolved 3 pending CUEs I had  in their AO IHD award to me.2012

Then I filed CUE on one specific statement in that award, based on a OGC Pres Op., an excerpt from M21-1MR, and an older rating sheet I received years ago...in appeals.

All explained somewhere in our CUE forum.

 

 

 

Edited by Berta

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Hello All,

I was just contacted by the Indiana VA and was told that my NOD for the effective date is not warranted and they removed my appeal. 

It was stated by "Susan" that the effective date back to 2013 was due to the claim decision was less than a year old and at that time the knee issues were overlooked and that is how the VA found the CUE. She also stated that you cannot file an NOD for effective dates.

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.

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"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.

 

 

 

.

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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.

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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

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