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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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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.

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"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.

 

 

 

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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.

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mytime34

you quoted'' The first denial was back in 1997''   and you said ''they should go back to that date''

Just to let you know the EED Would be when you first filed  not the date of the denial. of 1997.

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