1975 CUE?

[WomanMarine]

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?

[WomanMarine]

On 10/6/2017 at 2:29 PM, asknod said:

You are trying to bite into the middle of the pizza. Start on the edge. So you reopened and lost and have an active NOD afoot? The story evolves from CUE to an open, viable claim now. You're forcing us to  view this through binoculars backwards. 

In this case, you need your service treatment records(STRs). You also need a good VA attorney or agent pronto. The above statement reciting your MEB above tells you the repair order. An injury in service-most especially one in service, is sufficient to win a claim. You need Hickson element #3

You were denied again in Rating Decision dated 8/8/2017.  The reason for the denial was that the evidence continues to show this condition was not incurred in or aggravated by military service. The evidence continues to show that you condition existed prior to military service and was not aggravated beyond the natural progression due to service. 

 

But...the moment they state "Service Treatment Records note the Veteran was seen with a diagnosis of recurrence of subluxation, right patella." 

That's the admission of SC. You simply need the nexus to prevail now. I'll give you a hint. VA doesn't pay c&p examiners to make determinations of SC. They're the point man-they examine and report back. The VA rater on your claim, called the VA examiner, is the one who makes that call. You need three elements I discussed above to win. You have two of the three. You can beat it to death with your lips or a typewriter, but you will not win until you obtain and submit a private nexus letter from an orthopedist doctor. 

Actually I won my NOD because the of the C&P clinician who looked at my SRT records said that I should have been rated then and tied it to my service.  They took out my 'back pay' from that award, so now I am clear with them. I now have a pending case that is to be decided this month for an increase on my R knee and to include bilateral, as per the suggestion of my C&P clinician and my back. As well I have in a claim for IU. 

I did find my original physical that showed no problems going into service. So I hope to reverse the 30% they gave me for my knee and then said that rating was because it was 'Service Aggravated'.

Quote

 

"You were previously denied service connection for right knee patella subluxation in our decision of May 23, 1980 because it was shown to have existed prior to military service and was not found to have been permanently aggravated beyond a normal progression by service.  You did not appeal that decision and it is final.

We requested an examination and medical opinion in relation to your reopened claim.  The opinion provided that your recurrent subluxation which existed prior to military service was permanently aggravated beyond a normal progression by military service. Therefore we can establish service connection on the basis of aggravation.

Service records show you reported five years prior to service you experienced giving way of the right knee. You did not experience other episodes until military service. You state you experienced several episodes during military training, however there was no specific injury in service resulting in any subluxation. Examination noted a grossly subluxable right patella with the knee moderately flexed. You were separated from service due to the reported instability of the knee.

Current VA examination notes a history of severe recurrent subluxation. You are shown to also have mild instability.

Service connection for right knee subluxation with instability (previously claimed as right knee patella subluxation) has been granted because of condition, which existed prior to military service, permanently worsened as a result of service. The difference between disability evaluations before and after military service determines the degree of disability subject to service connection. Prior to service, the disability is considered 30 percent disabling based on evidence that showed severe subluxation. Following military discharge, the disability is 30 percent disabling because the evidence shows severe subluxation and mild instability. The preservice percentage is deducted before assigning any service-connected evaluation less than 100 percent.

An evaluation of 30 percent is granted for recurrent subluxation of lateral instability of the knee which is severe.

The effective date of the granted of benefits of 0 percent is January 20. 2017, the date of your reopened claim."

 

So they gave it to me than took it away ... 

I then re-applied for an increase on my R knee, to include my L knee, which was already suggested in my C&P, as well as my back and an I.U. claim. AND again I submitted my original physical which showed no problems.

As well I put in a claim for Hep C ... I am not what sure for, but I wanted to let them know I was sure it was the fault of either 'air guns' or when I had my stent put in at the St. Louis VA and they had an outbreak of Hep.

There is a due date of 3/9/2018 on this claim, however it has been flagged a Hardship and I am hoping it is closed by 2/15.

My hopes are that because my entry exam shows no issues with my knee(s) that they give me that 30% award, award me for bi-lateral, my back and grant my I.U.

And then I can move on to CUE for an earlier effective date?

Edited February 2, 2018 by WomanMarine
clairity

[FormerMember]

Failure in the duty to assist does not rise to the level of CUE. https://asknod.org/2014/05/02/cue-the-quintessential-elements/

[WomanMarine]

1 hour ago, asknod said:

Failure in the duty to assist does not rise to the level of CUE. https://asknod.org/2014/05/02/cue-the-quintessential-elements/

I know, as I FINALLY get it ... thanks to you! 

The VA gave me 0% in 1975, when I applied for Voc Rehab. And they gave me a Service-Connected VA I.D. card. When I applied for Compensation in 1980 they took away the SC ID card and my 0% rating ... That is their error and a CUE!  

Had they 'stayed' my 0% I would not have a CUE, even though they did not locate the records. AND they did this again, last year, when I initially applied. It was not till the NOD in October, that they finally corrected their error and awarded me 0% for my knee with a 30% rating that they then took away because of them stating that it was "aggravated" by service ... and 10% for arthritis. My 1974 AFEES physical proves differently, as I had no issues with my knee.

You were correct, I got the argument all wrong ...

VA logic ... 

 

Edited February 3, 2018 by WomanMarine
typo

[Berta]

Just to add one thing..... a "0" SC means that rating could ,in time, warrant a higher rating if claimed that it has gotten worse (with medical evidence)

A NSC "0" means no comp- but NSC ratings can, in time be proven to involve ratable SC condityions.

But my point here is this :

Within the 3 "prongs" of CUE :

"The Court has propounded a three-pronged test to determine whether CUE is present in a prior final determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; listed at the time of the prior adjudication in question. Damrel, supra. nd that were such decisions are collaterally attacked, and a CUE claim is undoubtedly a collateral attack, the presumption is even stronger. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991)."

https://www.va.gov/vetapp17/files2/1712421.txt

I need to repeat the # 2 part- and I focued on that heavily in personal  CUEs I have filed.

To raise a valid claim of CUE, the Veteran must state, with "some degree of specificity," what the error is and also provide "persuasive reasons" why the result would have been manifestly different but for the alleged error. An assertion that the adjudicators had "improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE." Fugo, supra. 

With a "0" SC, the Established record at time of the alleged CUE must have warranted an outcome, that without any legal error, would have provided the claimant with more Cash.

In some cases the VA might not even rated a specific disability at all. even though they were aware of it.

My 2004 IHD claim is an example.The VA knew bu medical; evidence for 6 years that my husband had IHD.

They never rated it, even on a 1151 award ( wrongful death FTCA award).

I could not claim it as an accrued benefit , when he died due to Heart disease,as my husband and I were completely unaware of this disability (malpractice issue) yet the VA knew of it for 6 years.

I filed CUE knowing that it was a ratable condition under 1151.

The CUE and an additional SMC CUE sat at the VARO for from 2003 (SMC CUE) 2004 IHD CUE until 2012.

Bu then IHD had been put onto the AO list and I filed for AO IHD death as well as I asked the Nehmer VARO to properly adjudicate these 2 CUEs, pending for BVA tranfer, yet still at my VARO.

The Nehmer VA awarded them.

The IHD should have been rated and coded in a 1998 decision. They rated it back to 1988 to the month of his death.

The AMC should have been granted in the 1998 decision. They also paid for that as accrued.

My point is that -if the VA had significant medical evidence at time of the "0" SC decision, that this disability should have been rated higher...or ( as you said it was rated at 30 then reduced to '0') in a subsequent decision, 

then that would be a potential CUE.

If a VA error however does not trigger a manifested altered outcome ( meaning more comp is due and should have been paid at time of decision being Cued because the rating was wrong-based on established medical evidence the VA had at time of the decision being Cued)- then that is not basis for a CUE claim.

" Prior to service, the disability is considered 30 percent disabling based on evidence that showed severe subluxation. Following military discharge, the disability is 30 percent disabling because the evidence shows severe subluxation and mild instability.The preservice percentage is deducted before assigning any service-connected evaluation less than 100 percent.

An evaluation of 30 percent is granted for recurrent subluxation of lateral instability of the knee which is severe.

The effective date of the granted of benefits of 0 percent is January 20. 2017, the date of your reopened claim."

They seem to have some pre service evidence to get to that 30%,prior to service. If they dont have significant evidence of that pre service rating, that has to be appealed.If that appeal succeeds it would be the time to consider CUE.

You can certainly file a CUE now on any decision they have made that you feel is legally incorrect and the advice here from others is great....

 But CUE takes a complete understanding  of the 3 prongs of CUE in order to succeed.

 

 

 

 

 

[WomanMarine]

30 minutes ago, Berta said:

My point is that -if the VA had significant medical evidence at time of the "0" SC decision, that this disability should have been rated higher...or ( as you said it was rated at 30 then reduced to '0') in a subsequent decision, 

then that would be a potential CUE.

If a VA error however does not trigger a manifested altered outcome ( meaning more comp is due and should have been paid at time of decision being Cued because the rating was wrong-based on established medical evidence the VA had at time of the decision being Cued)- then that is not basis for a CUE claim.

" Prior to service, the disability is considered 30 percent disabling based on evidence that showed severe subluxation. Following military discharge, the disability is 30 percent disabling because the evidence shows severe subluxation and mild instability.The preservice percentage is deducted before assigning any service-connected evaluation less than 100 percent.

An evaluation of 30 percent is granted for recurrent subluxation of lateral instability of the knee which is severe.

The effective date of the granted of benefits of 0 percent is January 20. 2017, the date of your reopened claim."

They seem to have some pre service evidence to get to that 30%,prior to service. If they dont have significant evidence of that pre service rating, that has to be appealed.If that appeal succeeds it would be the time to consider CUE.

You can certainly file a CUE now on any decision they have made that you feel is legally incorrect and the advice here from others is great....

 But CUE takes a complete understanding  of the 3 prongs of CUE in order to succeed.

 

 

 

 

 

In 1980 the VA DID have evidence, as I was seen because of my knee, I have the 1980 form that showed that I had a X-ray that revealed 'torn ligaments'.

I only subsequently filed for compensation after I was seen in 1980. That is when I was denied and they removed the 0%. The VA at that time should have INCREASED my disability, not removed it.

I have not filed a CUE, but I have completed a Statement of Claim that I added to my pending claim, asking for an 'earlier effective date' as of 1980. As well I requested that the rate be 30% for my retro, as that is the number the VA came up with last year.

The ONLY information the VA has about my knee, prior to service is my statement, which was taken out of context and has been used against me all these years. I, on the other hand, have my pre-service physical that shows no such condition.

Berta, thank you for your response. I have read a LOT of your posts in my research. You are one sharp gal!!! 

[Berta]

I think I am sharp on CUE, and we have Many members who are "sharp in many respects"---but that is only because I have read countless BVA CUE decisions, ever since the BVA went online ,  and have read the CUE regulations probably 100s of times, and still do when we have CUE questions here.

There are some CUE examples here that I wrote for a few vets here- whereby the CUE was so obvious, based on the info an attachments they posted here, that it was easy to do.

A few were too complex for VA to even want to read.

One vet I helped ,won at the BVA. But a valid CUE should never get that far.

They should comply with the 3 prongs of CUE and be as brief as possible, just sticking to legal and established facts.

(PS I learned as much from BVA denials of CUE as their awards of CUE and the  annual VBM by NVLSP also helped me a lot.)

This is a great link too from Broncovet.

https://community.hadit.com/topic/47117-nvlsp-common-va-errors-for-increase/

 

Edited February 5, 2018 by Berta