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Question

I have been revisiting my service-connected injury and believe I may have a CUE.

My original post:

The claim I filed was recently denied. They used the same verbiage in this denial as they did in 1980.

In 1980 they stated: "VAF 21-526 does not show that she has required any subsequent since service. The evidence does not reveal aggravation beyond the natural progression of the original injury. "

I will assume that the V.A. is meaning that I did not have any 'subsequent medical treatment'. If that is the case, the V.A. failed to take into consideration the treatment that I had three months after discharge where they put me in a full leg cast to correct my sublexing patella. Because there was an 'on-the-job' accident associated with this episode, I also lost my brand new job with Southern Pacific Railroad.

In 1980 I applied at the San Francisco VARO, my medical records were the Los Angeles V.A. I did find that the SF VARO did have a copy of my Vocational Rehab application, that I submitted after I had the cast removed in 1976. On that application it does list where my medical records were. However I made the mistake and I did not realize that there were actually two systems, the DoD and the V.A. I was rated 10% by the DoD and not rated by the V.A. and used that rating to apply. Of course I was turned down.

It was not till last year that I actually got these records that state that my disability was service aggravated and the rating.

Because the V.A. must assist the veteran in record gathering and failed to do so in 1980. As well as they are doing today, they have yet to come up with the records, does that make this a CUE?

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Failure of the VA to DTA (duty to assist) is not CUE, unfortunately.  You can look up case law yourself, if you like.  

Remember, 2 things about CUE:

1.  Think of it as a "standard of review" and not an "error", because many/most "errors" do NOT rise to the CUE "standard of review".  

2.  For CUE its ALL about the effective date.  If the effective date was not an issue, then simply re apply for that benefit.  This is not always a bad idea, either, because, if you did re apply and got benefits, you can "cue" the effective date, and your case for cue is stronger.  You see, even if DTA was CUE, you have to prove its "outcome determinative", and that means you have to prove that you, indeed met the criteria for benefits on that date.  That is easier to do, if you already are rated for that claim, then its all about effective dates. 

      There is much on Cue here, I wont be repeating it here.  I suggest you research some decisions on CUE, before you file one.  

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The VA is famous for using smoke and mirrors. Just for shoots  and grins, think about some early decision you folks received in, say, 1991.The big buzz phrase then was "It was acute and transitory and resolved before separation." Let's say you bought it and didn't appeal. It's still CUE viable because that's the WRONG STANDARD OF REVIEW. Look at the statement you quoted WomanMarine. If  the sublexing patella occurred in the military , then it is service connected. If you did have it and it was noted at entry, and then got worse (especially within the golden one-year period after separation), it's still service connected. To deny ignores the precept of §3.1 and §3.303(a) - to wit, if it happened in the service or got worse in the service, it's service connected absent willful misconduct. If it is found to be SC, then a finding of fact states as much. Wilson v. Derwinski 1990 (The regulation requires continuity of symptomatology, not continuity of treatment.) "Acute and transitory and resolved before separation" is a finding of fact. But it is not grounds for declaring it non-service connected. Remember, it ieither service connected or it's not service connected. You can't be a little pregnant here.

VA is fond of using the wrong standard of review. If the sublexing patella occurred in the service and seemed to resolve by separation, then you'd file for sublexing patella and, if it was acute, healed  and asymptomatic, that would be a finding of fact. When you were discharged, you had an exhausting physical that examined you from stem to stern. You answered questions on it. It's called a DoD form 93. That becomes the benchmark against anything you claim in the future. If you did not complain about the patellar but there is evidence you were treated for it in service, it's CUE not to rate you for it. Who cares if it's 0%. That is not the issue. If you were asymptomatic, the regulation (§4.31) is specific-if there is no rating for 0% on a given VASRD rating, §4.31 authorizes a 0% can be applied. After a finding of fact showing it is SC, the next judicial step is to declare the finding of fact a conclusion of law.  The conclusion of law  must then be applied which is "Service connection for sublexing patella is granted."

So many gloss over the Big CUE because VA has you sidelined into an alternative view of what you're claiming as CUE. You're  distracted into beating a brick wall trying to argue the "The evidence does not reveal aggravation beyond the natural progression of the original injury. "  when you should be arguing for the SC as the CUE.

So think about that the next time you peruse old decisions for CUE.

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2 hours ago, broncovet said:

      There is much on Cue here, I wont be repeating it here.  I suggest you research some decisions on CUE, before you file one.  

Digging in ... Thank you Broncovet.

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1 hour ago, asknod said:

If  the sublexing patella occurred in the military , then it is service connected. If you did have it and it was noted at entry, and then got worse (especially within the golden one-year period after separation), it's still service connected. To deny ignores the precept of §3.1 and §3.303(a) - to wit, if it happened in the service or got worse in the service, it's service connected absent willful misconduct. If it is found to be SC, then a finding of fact states as much. Wilson v. Derwinski 1990 (The regulation requires continuity of symptomatology, not continuity of treatment.) "Acute and transitory and resolved before separation" is a finding of fact. But it is not grounds for declaring it non-service connected. Remember, it ieither service connected or it's not service connected. You can't be a little pregnant here.

... DoD form 93. That becomes the benchmark against anything you claim in the future. If you did not complain about the patellar but there is evidence you were treated for it in service, it's CUE not to rate you for it. Who cares if it's 0%. That is not the issue. If you were asymptomatic, the regulation (§4.31) is specific-if there is no rating for 0% on a given VASRD rating, §4.31 authorizes a 0% can be applied. After a finding of fact showing it is SC, the next judicial step is to declare the finding of fact a conclusion of law.  The conclusion of law  must then be applied which is "Service connection for sublexing patella is granted."

 

Thank you Chief. Good stuff!

It is the 1980 denial that falsely claims that I had no other medical treatment, they ignore the fact that they treated me for the same injury only two months after I was discharged.

I believe the V.A. actually did rate me @ 0% in 1975. They issued me a health benefit ID card with a purple triangle that stated service connected. I was told that I did not qualify for monetary benefit because I took the small severance pay from DoD.

In 1980 when I was formally denied compensation, they then took that ID and issued a standard blue health benefit card. They also claimed that I did not have any further medical treatments after I was discharged as the reason for denial.

The Los Angeles V.A. has failed to produce the 1975/76 records. I have sent them several requests. :(

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You have two errors running side by side. You chose to take the DoD payment. Sobeit. If, at any time in the future, you'd elected to have the subluxer service connected into a true VA claim, the statute says you would have to repay the amount DoD paid you to satisfy double-dipping. VA is bound by findings of medical fact from DoD records. You can't be discharged (and given a lump-sum $) with a chronic problem and then not be service connected later when it begins to go south. Then when the DoD debt had been met, you would start getting your regular comp. payment. At no time have you not met the first Hickson Element of "Did it happen in service?" Hickson#2. "Is my problem today the same as my problem in the service?" If yes, you obtain a nexus letter saying so. That's for insurance. You can't use it in a CUE. Almost all the CUE's I win are failure to observe the regulations. Very rarely, do Veterans prevail on whether the facts, as they were known at the time, were not before the VA examiner. Which is not to say a good Merck cite or one from Cecil, Book of Medicine can't be introduced if it is period literature. With good evidence of the medical disability shown in STRs, a private nexus is really immaterial so don't waste good $ doing it. If your brother-in-law's sister is an R.N., maybe you could get one for free. 

I tear apart the language of the denial and try to fit it into a rating context. VA examiners, when writing these things up, use an antique Adobe 2 Professional that allows run on sentences and adverbs instead of  nouns. Dangling participles and misspelled words are everywhere. Notice Marinewoman's disjointed sentence above if you doubt me.

 

Remember, rule #1 in VA Win or Die Poker.. Read that denial and try to fit the finding of fact to the conclusion of law. 157 VASRD ratings have a 0% asymptomatic scale. Many do not. For all those others there is §4.31 to zero it out.  

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