V.A. did not locate their own records - CUE

[WomanMarine]

Okay, now that I have been at this for over a year, I am now starting to understand the V.A. 

I was medically discharged in 1975 with a recurrent dislocating patella with a DoD rating of 10%.  I started having problems, as noted in my SRT, in my 10th week of boot. It was not till a year later, when bowling @ Leatherneck Lanes, that my patella completely dislocated, tearing ligaments and my meniscus.I was seen the next day in Ortho, with a 'grossly sublexed patella' and subsequently discharged for this condition.

Two months later I landed a job with Southern Pacific Railroad. About a month into the job, again, my knee went out on me causing me to 'crash and burn' at work. I was seen that evening at the V.A. and referred to Ortho, who placed me in a full leg cast for six months. Because of this I lost my job at the railroad 

I then applied for Vocational Rehabilitation and put on the form that I was 10% disabled. I did not realize that it was a DoD rating v. a V.A. rating. I was subsequently denied, but it was never explained to me the difference of DoD v. V.A. Again in 1980 my patella went out on me, again tearing my meniscus and ligaments. I went to the V.A. and was X-rayed, which showed torn ligaments. I then applied for V.A. disability. I was denied, but did not know this till recently and why, as I was homeless and did not receive the notification.

According to the V.A. they submitted form VAF 21-526. They stated that I "did not receive subsequent treatment for my injury since my discharge." Which was obviously untrue, as I had been seen by the V.A. for this injury only four years earlier, only three months after my discharge, and lost my job because of it. 

Today the V.A. cannot find the records of my 1975 - 1976 6 month Ortho rehab.

I can understand losing them 42 years later, but not 4 years. 

I am hoping my claim is wrapped up with the V.A. within the next month, as I had my final C&P last week for my back. I have three discs that are protruding, one is on a nerve. This is due to my gait being off for the last forty years, because of my SC knee.

OH and my SC knee, they rated at 30% and took it away as they said that it was a prior injury to service and was Service Aggravated.  

During the Ortho exam, after the 1975 accident on base, I stated that, once as a teen my knee gave way running track. For all I know, I could have stepped on it the wrong way, as my patella never dislocated and tore ligaments ... But the V.A. now insists it is Service Aggravated and gave me 10% for arthritis. After I was service-connected and applied for an increase, the examiner that rated my knee recently amended the exam and said that, because my condition is so severe that my left knee must now be included, as well as a bilateral factor, as I have arthritis in that knee, as she said, because of my gait. And she ordered an MRI of my Lumbar. The MRI shows DDD from S1 L1-L5. And specifically L4-L5 which I was recently told that I will need surgery, as they are compressed and pressing on a nerve.

Recently I located my physical fitness entrance exam and it makes no note of ANY issues and passes my lower extremities. I believe, because of this that the 30% for my R knee, that was denied should be awarded?

Do I have a CUE from the 1980 error?

Thank you for reading my question?

Oops ... I posted this question a few months ago: 

The V.A. is driving me nuts! 

 

Edited February 2, 2018 by WomanMarine
clairity

[WomanMarine]

This is the verbiage that they used in my denial to my NOD last year:

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."

 

 

[broncovet]

Have you filed a nod to the above decision?  Has it been over a year?  If its been less than a year, file a nod.  

"Cue" is best thought of as a "standard of review" and not an "error" in no small part because:

1.  Often you dont need to accelerate the standard of review to the level of cue.

2.  It isnt in your best interest to raise the bar to cue standard of review unless there is no other way of obtaining an earlier effective date.  Cue is all about effective date..you are either eligible for benefits or not, and if not, cue wont help you.  

3.  It sounds like VA did act in your best interest and instead regarded this as a reopeing due to new and material evidence.  

There are at least 2 circumstances when reopening would warrant an earlier effective date:

     a.  If the claim was pending, 38 cfr 3.156b, or

     b.  If the missing evidence is new service records, 3.156c.  

        

The above decision essentially admits its reopeing due to new service records, so under 3.156c you should get an earlier effective date.  

     Therefore you need to appeal the above decision within a year, arguing the effective date is wrong, and, if you desire, you can dispute  the disability percentages as well.  

[WomanMarine]

1 hour ago, broncovet said:

Have you filed a nod to the above decision?  Has it been over a year?  If its been less than a year, file a nod.  

"Cue" is best thought of as a "standard of review" and not an "error" in no small part because:

1.  Often you dont need to accelerate the standard of review to the level of cue.

2.  It isnt in your best interest to raise the bar to cue standard of review unless there is no other way of obtaining an earlier effective date.  Cue is all about effective date..you are either eligible for benefits or not, and if not, cue wont help you.  

3.  It sounds like VA did act in your best interest and instead regarded this as a reopeing due to new and material evidence.  

There are at least 2 circumstances when reopening would warrant an earlier effective date:

     a.  If the claim was pending, 38 cfr 3.156b, or

     b.  If the missing evidence is new service records, 3.156c.  

        

The above decision essentially admits its reopeing due to new service records, so under 3.156c you should get an earlier effective date.  

     Therefore you need to appeal the above decision within a year, arguing the effective date is wrong, and, if you desire, you can dispute  the disability percentages as well.  

Yes, Broncovet, I filed a NOD, as the first decision was based on the 1980 decision where they took away my 0% rating. This is in anwser of that NOD. I have since refilled asking for an earlier effective date, based on my AFEES Physical, which shows no 'disability' ...

In 1980 when they took away my 0% rating, that was the error the VA made = CUE

My claim is now awaiting decision. I am also disputing the rating of 10% to 30% as that is what the VA is stating that I had when I went into the service and then 30% when I was medically discharged = 0% ... 

Edited February 3, 2018 by WomanMarine
More info

[WomanMarine]

How does one figure 'retro' from 1980? 

I know that it is based upon what the rate was during that time. Is there any type of formula? I am thinking it was not much ... I remember in 1976 10% was under $50/mo.

[Vync]

On 2/3/2018 at 7:32 AM, WomanMarine said:

How does one figure 'retro' from 1980? 

I know that it is based upon what the rate was during that time. Is there any type of formula? I am thinking it was not much ... I remember in 1976 10% was under $50/mo.

I found this Hadit article which shows a high level overview of historical VA disability pay rates.

https://www.hadit.com/vaclaimslibrary/compensation/comprateshistorical.htm

 

The original link on that page no longer works, but I checked on archive.org and found it was captured. You can download the detailed document here: https://web.archive.org/web/20040113235525/http://www.vba-arms.intecwash.navy.mil/admin21/m21_1/part1/appb/SectVIII.doc

 

[WomanMarine]

5 minutes ago, Vync said:

I found this Hadit article which shows a high level overview of historical VA disability pay rates.

https://www.hadit.com/vaclaimslibrary/compensation/comprateshistorical.htm

 

The original link on that page no longer works, but I checked on archive.org and found it was captured. You can download the detailed document here: https://web.archive.org/web/20040113235525/http://www.vba-arms.intecwash.navy.mil/admin21/m21_1/part1/appb/SectVIII.doc

 

Thank you sir!

I will research