Filed 3 CUEs, have 3 C&P exams: Question...

[mrstephens11]

Good news, I filed three CUEs and now have three C&P exams.  Great news, it's with the VES and not the VA.  The best news, I've seen one of these VES Doctors before and he rated the disability exactly correct!

My question is, since I was given the C&Ps for the three disabilities that I filed the CUEs against, does this mean that the VA is agreeing that they made a CUE?  I understand the exams still have to happen for the rating portion, but does this mean the bureaucratic part of the VA agrees there was a mistake?  Logic tells me "yes, why would they schedule an exam if they were just going to deny the CUE."  However, this is the VA and logic is hard for them.

Last night I was going through my records to get them ready for the C&Ps.  While I was doing this, I found another CUE that if accepted will net me another 10% back to 2005.  Go through your records, DBQs, and Rating Decision letters, you might have CUEs just waiting to be found!

 

Thank you,

Stephens

[mrstephens11]

Based on what Berta has said about "Go CUE yourself" (asking the VA to file a CUE on their behalf during your appeals period), I have drafted this request.  Please let me know what you think.

 

Quote

I respectfully request the VA to call a clear and unmistakable error "CUE" on themselves under “38 CFR 3.156(c) New and Material evidence” and to correct the effective date of my claim for hemorrhoids and chondromalacia right knee.  I am still within my time limit for appeal and I reserve my right to appeal and to file my own CUE.  The VA reopened my claim after denying CUEs for both hemorrhoids and chondromalacia right knee.  However, I was award service connection for both based on the new and material evidence I submitted.  This new and material evidence is “Service Department Records” and were not a part of the “evidence of record” at the time of reopening of the claim.  Since I submitted a claim for both hemorrhoids and chondromalacia right knee within one year of my discharge, the effective date should be 09/17/2005 instead of 10/17/2017.  My first claim for hemorrhoids and chondromalacia right knee are in my C-File.  To add to this, the ratings decision letter I received in 2015 stated that my chondromalacia left knee was back dated to 09/17/2005 because of the un-adjudicated claim within one year of my discharge, which is the same claim I originally claimed hemorrhoids and chondromalacia right knee.

I respectfully request the VA to call a clear and unmistakable error "CUE" on themselves under “38 CFR 4.59 – Painful Motion” and “38 CFR 3.103 - Procedural due process and appellate rights” and to correct the lack of rating painful motion for both diagnostic code 5260 (Leg, limitation of flexion) and 5261  (Leg, limitation of extension). I am still within my time limit for appeal and I reserve my right to appeal and to file my own CUE.  The VA reopened my claim after denying a CUE for chondromalacia right knee.  However, I was award service connection for painful motion of the knee based on the new and material evidence I submitted.  The VA didn’t specifically state in the rating decision letter which range of motion this was grated for.  Since I have pain in both flexion and extension, as noted in the C&P exam dated 11/28/2017, I should be rated for 10% for diagnostic code 5260 and 10% for diagnostic code 5261.  The effective date for these disabilities should be 09/17/2015, based on the reasoning and law stated in the first paragraph of this request for the VA to call “CUE” on themselves.

 

[Berta]

I am a little confused here on all of this-you apparently have 2 decisions you disgree with.

Can you scan and attach those decisions here ( Cover C file #, name, etc) as to their Reasonand rationales for the decisions and also the Evidence list they used?

 

Also is it possible the recent C & P exam results might lead to a new decision that covers everything?

If these issues can be handled under the 38 CFR 3.156(c) New and Material evidence regulations, that is often a far better approach then filing a CUE.

I think they denied your CUE claims but used 38 CFR 3.156 correctly to re-open?

 

 

 

[mrstephens11]

Yes, I have two issues with the way this played out.  One is that the effective dates for both the hemorrhoids and chondromalacia right knee are wrong, since I gave them new evidence from Service Treatment Records.  The other issue is the fact that I feel I should have been rated for painful motion for both flexion and extension.  The VA didn't say which diagnostic code they used for rating the painful motion and since both flexion and extension have painful motion, I feel I should be rated at 10% for both.

How should I proceed?

 

[pwrslm]

So how did you get the STR's? Why didn't the VARO have them in 2007 or 2015? The STR's are in the custody of the US Govt, archived permanently. They have a duty to retrieve all records before they make any decision. Going back to 2007, all of your treatment records should have been in front of the RO when your claim was originally made.

The STR's were created while you were active duty, not after, and that means that the records are not new. They existed before 2007 is my point.  What needs to be researched is if the VA had a valid reason why they did not have your STR's.  The failure of the VA to retrieve the records should allow you to appeal to get an EED.

If they did have them and failed to acknowledge them in the decision process, your EED should be back to the 2007 original claim.

Did you get you CFile yet? 

Edited January 30, 2018 by pwrslm

[mrstephens11]

Yes, I got my c-file after my 2015 claim and I printed and sorted it.  I then went through the records that I copied the day or two before my discharge.  There are more than a few records I have that weren't in my c-file.  They are all from my active service time frame.  When I filed my claim in 2005 & 2007, (which they claimed I never did) I put some of my supporting records in the claim.  Then in 2015, I filed again with some different records I guess?  For that claim they got most of it right and back dated to the claim in 2005, only because I kept records of the 2005 claim and added it to the 2015 claim.

I was discharged for bilateral chondromalacia (knees), it literally says that on my discharge papers(not the DD214 but the documents leading up to the discharge).  They service connected me in 2015 for my left knee but not my right.  I can't even tell you how angry I was when that happened. 

The records I filed with the 2017 claim/CUEs wasn't in my C-file and are STRs from my active service time.  Since I filed a claim in 2005, within one year of my discharge my effective date for the hemorrhoids and right knee should be 09/17/2005 not 2017.

I'm thinking I will have a DRO review this as it's pretty clear to me that " 38 CFR 3.156(c) New and Material evidence " applies here.  I know this is a CUE, but I think I'll go with a DRO review.

Does that clear it up?  Does a DRO review still make sense or is there some other way I should attack this?

 

Thank you.

[mrstephens11]

To add to this I have a record that they do not have yet.  It talks about my knees giving out.  I didn't add it because I didn't know about the instability diagnostic code.  Should I reopen and add that record and claim an inferred claim for instability?

I hate how complicated this all is.  Just when you think you are getting a grasp on it, you realized there is so much more to learn.