Am I wasting time filing a CUE dating back to 1976?

[hollywoodnc]

Hello ALL!...

It's been a while since I've posted here.  Nice changes to the web site.

Anyway...

In 1975, I enlisted in the Army. I went in with three Knowles pins, surgically implanted in my left hip, which was performed in the summer of 1970.

Prior to enlistment, I had NO issues with this hip.  I had full ROM (as this was also documented at AFEES), NO PAIN, ETC.

During my time in basic training (while speed marching in sand one early morning), I hit a divot in the sand, and suffered a (what I believe was) a compression fx.  It was extremely painful & I had dropped out of the ranks due to it.

A visit that day to the dispensary, showed that, one surgical pin was protruding out into the joint space.  This is the exact written statement made by the examining physician.  He recommended that I be discharged.

8 months pass and my discharge orders are submitted, classifying me as "Medically Discharged" w/severance pay.

Immediately afterwards, I applied for a rating with my local VARO and they schedule me for examinations to determine the extent of my disability. 

The VA doctors determine, with this exact wording...

"Pins Working loose"...

"Atrophy"

"Avascular Necrosis"

"Left Leg 1/2" shorter than right" (although this is NOT compensable, it contradicts what AFEES stipulated; that BOTH legs measured 37 inches)

Back then, not knowing that I was entitled to a copy of my medical files, I had NO CLUE that I had all of these statements made by doctors.

Anyway, the VARO rendered a decision in 1977, awarding me 10% (Coded w/5010-5003; SC 38USC 331 {AGG PTE}; 10% FROM 4/76; Res. of Fracture Left Hip w/Arthritis).

There had been NO MENTION of the statements made by the examining physicians in the determination, regarding the above mentioned ailments, yet Title 38 awards a rating for each, except for "surgical pins".  Not knowing anything about my condition, the laws or my entitlement to documents, I accepted the rating as verbatim and ASSumed this was honestly decided upon, by competent officials.

I discovered years later that this is not the case...

In 1977, I also had surgery to remove the pins, only to have an incompetent "Quack" botch the surgery (which led to my 2002 filing of an 1151 claim, then an FTCA Case in Fed. Court).

In 2002, I managed to get copies of my entire file and pursued a CUE claim involving the "Under-rated claim" dating back to the original 1977 Clear & Unmistakable decision.  After all, the raters failed at reviewing the entire write-up made by their own VA doctors.

Even though I made multiple mentions in my constant filings, for some reason, it keeps getting swept under the carpet?!  They are also referring to calling it "Residuals", as if it was already decided upon as a "Bundled Package".

I DO know that this under-rating is TOLLING, being that it was never addressed in the 1977 decision.  In effect, isn't it still an "Open Issue"?

Tolling of Statutes of Limitations Law and Legal Definition

Tolling of statutes of limitations refers to the situation when running of statutes of limitations is suspended.

The U.S. Supreme Court has established a two-part test to determine whether a petitioner is entitled to equitable tolling of the statute of limitations. Generally, a litigant seeking equitable tolling of the statute of limitations bears the burden of establishing that:

a. S/he has been pursuing his rights diligently; and

b. some extraordinary circumstance stood in his way. [Pace v. DiGuglielmo, 544 U.S. 408, 418 (U.S. 2005)].

Since Discovery (2002) I have pursued this Under-rated claim diligently...

AND

(Some may question) An "Extraordinary Circumstance", such as my "Ignorance" in not knowing that I was entitled to copies of my entire file at the time along with my ignorance in knowing the laws (Title 38) at 19-20 years old, PLUS, My inability to research online (in 1976-77, there were NO computors or internet to research as we have today).

 

In 2003-04, I found a case law, where as the BVA  awarded a Veteran (I believe it was in 2002) with VERY SIMILAR ailments 60%.  He to, had a "loosening of pins", "Asceptic Necrosis" & atrophy?!

After a total hip replacement, the Veteran was downgraded from 60% to a 30% rating.  After a hearing, the VA awarded the Veteran with a 50% rating.  This is the heading of the Case Law:

IF permissible, does anyone know the Plaintiff/Claimant in the Court Case? OR Is this hidden due to "Privacy Act"?

Citation Nr: 0306080    
Decision Date: 03/31/03    Archive Date: 04/08/03

DOCKET NO.  95-42 499   )       DATE
        )
        )

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, 
Pennsylvania

THE ISSUES

1.  Entitlement to an increased rating for residuals of fracture of the right femoral head, evaluated as 60 percent disabling from June 1994 
through May 17, 2000.

2.  Entitlement to an increased rating for residuals of fracture of the right femoral head, status post right total hip replacement, evaluated 
as 60 percent disabling from July 2001 through March 2002 and 30 percent disabling since April 
1, 2002, to include the issue of whether the rating reduction  
to 30 percent was proper.

3.  Entitlement to an increased rating for lumbosacral strain, currently evaluated as 20 percent disabling.

REPRESENTATION

Appellant represented by:       The American Legion

WHY is my claim different?  Even though the bundling of ailments in THIS case is used (Residuals), what makes my case different?

The Bottom Line...

Is there enough info here to determine if I have a "CUE" claim? 

Should the VARO awarded me a higher rating in their 1977 decision as they did with the Case Law above?

 

Thank You in Advance for your comments/opinions on this matter!

Bruce M. 

Edited November 26, 2017 by hollywoodnc

[Berta]

I  just deleted my whole post but saved it in word------

I might have looked at this whole thread wrong.

Did you actually receive a 10% SC cash award for the 1977 decision? I assume that was your initial claim to the VA-that they acknowledged.

The VA should have sent you an award letter that also stated they would deduct the severance pay from the 10% and when the severance amount was recouped the monthly SC 10% check would come.

[Lemuel]

11 hours ago, Berta said:

I  noticed that the 1977 rating sheet decision stated that you were paid separation pay due to aggravation of a preservice condition and on the separation exam noted as  Degenerative joint disease related to fracture----

but the second page denies SC ????

How have you worded your recent claim for this?

I assume you have claimed residuals for a pre existing condition  which was aggravated in service ( proof above due to separation pay) that has since become more  aggravated...I am saying  that wrong---others here will know what I mean.....(has become more dehabilitating and disabling ?)

I dont get this. Hope others chime in on the 1977 rating sheet.

 

Just looked at the 1977 rating.  The back condition is caused by favoring the hip.  There are numerous findings in the BVA even at that time that this is true.  Some of those coupled with the decision should qualify as a CUE I believe.  It is likely the beginning of the Back injury was from the same circumstance that caused the aggravation of the hip.  And the hip being more painful than the back probably the back went unnoticed and assumed the pain was all from the hip.  The left side is usually the first side pain is felt in with injury to the back at that level.  (speaking from experience)  

 

[hollywoodnc]

On 11/28/2017 at 6:09 PM, hollywoodnc said:

Hello All!

Sorry for the delay.  What a pain it is to cover up all the personal ID'ing!

The following are SMR's:

(Deleted by Me)

The following are VA Doctors:

(Deleted by Me)

1977 VA Decision:

(Deleted by Me)

I deleted exhibits on 11/30, due to identity bleeding through.

[hollywoodnc]

12 hours ago, Berta said:

I  just deleted my whole post but saved it in word------

I might have looked at this whole thread wrong.

I assume that was your initial claim to the VA-that they acknowledged.

The VA should have sent you an award letter that also stated they would deduct the severance pay from the 10% and when the severance amount was recouped the monthly SC 10% check would come.

Hello Berta...

I decided to delete the pdf's that I disclosed, due to the identity bleeding through.  To answer your question, I received a 10% rating (I believe it was $100+ mo.) immediately.  I do not believe that they recouped the severance from that award.

 

[hollywoodnc]

4 hours ago, Lemuel said:

Just looked at the 1977 rating.  The back condition is caused by favoring the hip.  There are numerous findings in the BVA even at that time that this is true.  Some of those coupled with the decision should qualify as a CUE I believe.  It is likely the beginning of the Back injury was from the same circumstance that caused the aggravation of the hip.  And the hip being more painful than the back probably the back went unnoticed and assumed the pain was all from the hip.  The left side is usually the first side pain is felt in with injury to the back at that level.  (speaking from experience)  

 

You're right!  No matter how many times I stated this to VA reps and to doctors, it turns into an argument.  However, it is worth mentioning, that my back injury did not occur from my S/C hip...I had flipped a car (1 time rollover) and compressed L/2 AFTER I had left.  I filed for the back to, only because my gait patterns would not allow for the L/2 to heal properly.

Here's how screwy the VA dr's are...

During the '80's, more quacks advised me to have a hip fusion!  They position your leg to a certain position and bone graft (weld) the joint together.  In my 20's, I DEFINITELY refused such a medieval approach, based on the fact that, I won't be bending from the hips, but from the L/2-3 area instead!

I'd be in a wheelchair today, if I agreed to such a stupid procedure!

Final note...

I'm in constant debate w/(supposed) dr's on the very topic that you raised...What to get repaired first...Hip or Spinal?  I now have a worn prosthesis and am in need of a rt hip replacement.

Orthos are saying that the hips will stop the gait leading to spinal, but I adjust constantly and any hip pain goes away.

Maybe they're right.  If I can eliminate antalgic gait, the spinal will not deteriorate as fast?!

[Lemuel]

I didn't have a hip problem but did have the back problem that put me on crutches for 13 years and using a wheel chair to travel for about 6 years of that.

After my S1 ruptured and there was a large fragment on my left sciatic nerve I was supposed to have surgery to remove it.  But the spinal surgeon was out of town for two weeks and by the time he got back my fragment had dissolved to about half size.  The resident told me, "good news and bad news.  You don't need surgery but your spinal fluid has changed chemistry to dissolve the fragment.  It will weaken the disc sacks and they will rupture one by one."   He showed me an osteoporosis chart showing the progression that I would expect.

Wanting to do something I ask if there wasn't something I could do.  He suggested I switch to Canadian Crutches (forearm crutches) from the arm pit crutches and use them for traction to lesson the pressure on the disc sacks possibly preventing their rupture for 10 to 15 years which I did.

After 13 years I was able to just use the crutches for an hour walk a day to get the traction.  Now after 27 years at 76 my back is better than some of my family members near my age.  I'm limited to lifting less than 15 lbs.  Actually I can lift more but can't carry even 15 lbs. for any distance over 50 feet.

See if you can find a good rehab therapist that actually views your x-rays and designs a program for your particular condition.  I had a good physical therapist in DC for about a year that taught me what I needed to do in hydro-therapy.  A couple of years later he had retired and the new therapist was a drill instructor type with one size fits all with back problems.  Created more problems and I quit quickly.  Found my own source of proper temperature water and did the previous therapist's program for about 5 years with great success.

I have some stenosis and jumbled vertebrae but my spinal canal is straight.  My neck is too straight but only bothers me a little.

Good luck with your future treatment.  I hope you draw good physicians and therapists that know what they are doing.  Too few do.