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  • Can a 100 percent Disabled Veteran Work and Earn an Income?

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mrstephens11

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

Question

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

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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 Going back to 2007, all of your treatment records should have been in front of the RO when your claim was originally made.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 by pwrslm

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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.

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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.

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Perhaps a DRO hearing would be the best bet-----

I am confused as to the denial, because they say there was no evidence of record on the hemorrhoid condition,per their 2015 decision on that condition.

Yet they granted 20% in the 2017 decision.

Cue is like the Watergate question- what did they know and when did they know it.

It seems they were aware of the hemorrhoid diagnosis  by virtue of the 2017 claim and then a C & P exam….I am assuming that---don’t know for sure…

They also say there was no evidence of the chrondomalachia right knee condition ,as a “chronic” condition until  the same date of the hemorroid claim October 17, 2017, which I assume warranted a C & P for that condition…which they awarded in 2017 at 10%.

I don’t have experience with the ratings they used----it is all in the VA Schedule of Ratings here.

The VA said they had STR and inservice personnel records  from June 2003 to Sept 2005 .

Was that your entire period of service?

They also list as evidence VA treatment records from Dec, 22, 2015 through January 5, 2018.

I assume their 2015 decision might not have considered the Dec 2015 treatment records because they made 2 rating decisions prior to the Dec 2015  VA treatment record.

What did they know and when did they know it-----is my point.

Do you have private treatment records and diagnosis for the hemorrhoid and also chrondomalachia  disability (showing it to be chronic) that the VA was aware of , but has not obtained?

"When I filed my claim in 2005 & 2007, (which they claimed I never did) I put some of my supporting records in the claim."

In other words they didnt adjudicate that claim because they say they never got it....?

I assume you did this- did you check your C file to see if the older claims are in it?

If you dont have proof of mailing those claims to VA ,I dont know know what you could do about that now.

 

 

 

 

 

Edited by Berta

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Let me try to list this out in order.  Sorry if I'm not being clear.

  1. In 2005 after my discharge from 2003 - 2005, I filed a claim with in one year of my discharge for the hemorrhoids and bilateral chondromalacia.
  2. In 2007 I went to the VA to ask about my claim because I didn't hear anything.  I was told I didn't have a claim.  So I filed again for every thing that I filed for the first time with some STR documents I brought with me.  I never heard anything back and this claim is not in my C-file.
  3. In 2015 at my Father's behest, I filed again.  This time I took my copies of the 2005 claim with a confirmation number from their online system I used to file the claim, to the TVC and they helped me file a claim and we attached the 2005 claim to the 2015 claim.  Again I supplied some supporting records.  I didn't know about C-files and I didn't know what they had.  I assumed again they had all my files.
  4. In 2015 after C&Ps for my knees and hemorrhoids the VA granted my left knee and some other items, but denied my right knee and hemorrhoids.  The VA back dated all of the disabilities that they granted based on the 2005 claim that I supplied to them.  I know this because the only claim I have in my C-file is the 2005 claim that I had hand written notes on and the decision letter stated that my retro award was based on an un-adjudicated claim from with in one year of my discharge.
  5. In 2016 I stopped listening to the TVC reps that told me not to appeal (don't rock the boat).  I started researching the VA claims process and I requested my C-file.  I get my c-file and I get pissed off.  I see so many mistakes that could have been fixed in an appeal.
  6. In 2017 I file 3 CUEs: hemorrhoids, hearing, right knee.  I supplied STR documents of hemorrhoids and right knee chondromalacia that were not in my C-file and the VA denies CUE and reopens claim granting me hemorrhoids and right knee with an effective date of 2017. However, they are more focused on it not being a CUE forgetting that they reopened the 2015 claim, which reopened the 2005 claim that was with in one year of my discharge.  They note in the award letter that the evidence of record in 2015 didn't have STR stating hemorrhoids or chondromalacia right knee.  They granted it because I supplied them with STRs that they didn't have.
Edited by mrstephens11
typo

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