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]

I contacted the new White House hotline and told them of my problem.  This is their response:

Thank you for contacting the White House Hotline regarding your continued denial of you knee condition.  Your claim was originally denied 5/23/1980.  The reason for the denial as taken from the Rating Decision:

Service Treatment Records note the Veteran was seen with a diagnosis of recurrence of subluxation, right patella. She states she initially had problems five years prior to service when she was running track and experienced a giving way of the right knee. She was asymptomatic for a long period of time but began to experience several episodes when she was about 10 weeks into Marine training. She experienced subjective episodes of instability of the knee associated with running. She had no specific injury to the knee. On 4/7/75, it was noted she had a grossly subluxable right patella with the knee moderately flexed. An arthrogram was ordered which was negative therefore, she was started on quadriceps sitting exercises pending consideration of surgery. She continued to note instability of the knee with frequent episodes of apparent subluxation of the patella. It was concluded she was no longer fit for retention in service. Physical exam at the time of survey from service revealed no effusion of the knee with moderately tender medial joint line but good ligamentous stability. The McMurray's test was negative and plane X-rays revealed no abnormality. She was subsequent separated from service. 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.

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. 

Please submit any new and material evidence as it pertains to your claim/appeal.  We encourage you to work with you service officer, American Legion throughout this process.

We received your appeal on 8/18/2017 regarding this condition.  You mention a financial hardship.  Your claim may be expedited if you currently fall into one of the following circumstances: terminally ill, homeless or otherwise experiencing very serious hardship. To request that your claim be expedited based on such circumstances; please submit that request in writing with documentation of your hardship. You can submit via:

•           upload through eBenefits portal

•           fax to Evidence Intake Center at (844) 822-5246

•           mail to Evidence Intake Center at –

Department Of Veterans Affairs

Evidence Intake Center

PO Box 4444

Janesville, WI 53547-4444

Thank you for your service,

Sarah

Department of Veterans Affairs
Veterans Benefits Administration

What my medical board fails to state was the fact that there was an incident on April 6th, the day before I was seen in ortho with the "gross sublaxation", I had an accident while bowling practice at Leather Neck Lanes for Marine Corps tournament. This is why it states in the attached 'medical board' that the injury is from 'sports'. My knee had "given way" before, but never had the patella completely subluxed tearing the meniscus and ligaments.

The ortho board also states that Service Aggravation must be entertained.

I just don't get it ...

[FormerMember]

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. 

[broncovet]

Did you order your cfile and is the April 6th incident "in your cfile".  It looks like YOU have a record of it, that is good.  But it has to be in your cfile or it does not exist.  A favorite denial method of the VA is to lose that critical nexus statement.  

Of the Caluza triangle, that Alex mentioned, it looks like you are missing the nexus, but then I did not read your file.  

So, order your cfile, read for yourself the nexus.  A nexus must be in the format close to : "The Veteran's (condition) is at least as likely as not due to (an event in military service).  

If you have this nexus statement in your cfile, then push forward with your appeals.  If you do NOT have the nexus, then you will need to get the nexus for your claim to succeed.  As Alex explained, you can use an IMO/IME OR sometimes you can get a "Veteran friendly" VA doc to provide same.  In my case, the VA doc provided the nexus statements before I knew what a Nexus was.  

Edited October 6, 2017 by broncovet

[WomanMarine]

2 hours ago, 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. 

Yeah it is funny how they always quote that part rather than ...

"She was first seen in the orthopedic clinic concerning her knee on 10 March 1975 and subsequently seen on several occasions with pereistent symptomotology. On 7 Apr 75 it was noted she had a grossly subluxable right patella with the knee moderately flexed."

"She has continuted to note instability of the knee with frequent episodes of apparent subluxation of the patella. It is the opinion of the orthopedic consultant that she is unfit for duty and that the question of service aggravation must be entertained."

"It is the further opinion of the consultant that she should be referred to the Physical Evaluation Board for disposition."

Time to lose the dogs!

 

 

[WomanMarine]

2 hours ago, broncovet said:

Did you order your cfile and is the April 6th incident "in your cfile".  It looks like YOU have a record of it, that is good.  But it has to be in your cfile or it does not exist.  A favorite denial method of the VA is to lose that critical nexus statement.  

Of the Caluza triangle, that Alex mentioned, it looks like you are missing the nexus, but then I did not read your file.  

So, order your cfile, read for yourself the nexus.  A nexus must be in the format close to : "The Veteran's (condition) is at least as likely as not due to (an event in military service).  

If you have this nexus statement in your cfile, then push forward with your appeals.  If you do NOT have the nexus, then you will need to get the nexus for your claim to succeed.  As Alex explained, you can use an IMO/IME OR sometimes you can get a "Veteran friendly" VA doc to provide same.  In my case, the VA doc provided the nexus statements before I knew what a Nexus was.  

No, I do not have any records of the accident. But I do know that the next day I could not work because of it and was seen in ortho. And no I have not ordered my cfile. I know I really should have it. I did visit the St. Louis MO RO and saw my application for Vocational Rehab from 1976, which stated my dates of treatment, within two months of my discharge.

I was hoping that the C&P exam that they gave me would have sufficed as my Nexus. I believe it was pretty accurate, tied my left knee and back into my right knee. But she did make a few mistakes with dates. And she was also very sympathetic, as she was a Vietnam vet, and knew of the physical rigor that would sometimes turn into trauma, women Marines had to endure.

I think I have taken this as far as I can without getting some legal help. My VSO won't even return my phone call ...

I don't know what my 'time frame' is for my 'informal DRO' but I received this yesterday:

..." At this time your Notice of Disagreement (NOD) dated August 18, 2017, is pending development and has been brought to the attention of our Appeals Team for further review. We will review your NOD and if we determine we need additional information, we will contact you via U.S. Mail. NOD’s are worked in the date order in which they are received and are many in numbers.

We have received the information you provided on September 27, 2017, for your request for a financial hardship. At this time, a decision has not been determined. Please allow more time for a decision.

It is important to note that the appeal process can be a length proves and the length of time it takes to complete the appeal process depends on several factors, such as the type of appeal filed, the availability of evidence needed and VA’s pending workload. Your patience is appreciated. We apologize for this inconvenience this may have caused.

Thank you for your service to our country. "

I really wish they would stop thanking me for my service, when they won't do their job ... :(

AND I wish they would get a better editor than Adobe .pfd ... What is up with that?!?

Edited October 6, 2017 by WomanMarine
typo

[WomanMarine]

On 10/5/2017 at 5:33 PM, asknod said:

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 is either 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.

I had totally forgotten about this post, forgive me for double posting. 

AND now I think I 'get it' ... In 1980 for the V.A. not to rate me at least 0% THAT IS THE CUE! Not the fact that they could not find their records. But for them not to rate me at 0% AGAIN last year, that is another CUE?

Well I believe now that my L knee and back are now involved and  and I have applied for IU, I am hoping that I will shortly be approved.

I think I will pass this on to an attorney, as I am pretty 'thick skulled' when it comes to the V.A. 

Sorry again, for my double posts.