Retroactive Pay Question

[RBrogen]

I have a question that I hope someone can clarify for me.

I got out of the service and was rated 20% for chronic lombar sacral strain but denied for related knee conditions in 1991.  Through the years I have gone to private and VA doctors with documented issues for chronic knee and back issues with knees, including 3 scope surgeries, 2 left knee and 1 right knee.  I tried to open a claim in 2009 and went to my C&P exam in downtown Boston and literally the moment I came into the exam room, the doctor sitting at the desk turned around with a scowl on his face, looked at me and said there's nothing wrong with you, get out.  I was so pissed, aggravated, frustrated and dumbfounded I left, disgusted and basically disconnected from the VA for a decade.  I actually considered myself fortunate because I had a good job as a chief technology officer, with great benefits and great insurance for me and my family.  Since then, I left the corporate world and started my own business and was encouraged to re-engage with the VA last year.  Once I did, I was told that I should resubmit my claims for conditions since the VA had undergone such dramatic changes and that my conditions were well documented, so I did and am currently waiting for a decision, including being rated for both knees. 

My question is this, is if I do finally get direct service connection for my knees, would I be on solid ground to seek retroactive status back to my 1991 original claims?  Perhaps form the perspective of Clear and Unmistakeable Error (CUE)?

Sorry for the lengthy post and thanks for any thoughts.

[broncovet]

Probably, but its more complicated than that.  

First, even "if" you were awarded SC back to 1991, you may not get the same disability percentage as you would now.  Reason:  Its likely your condition of your knees worsened since 1991.  You may meet a critieria for a lower disability percentage back to 1991 if your knees got worse in the past 28 years or so.  (likely).  

Next, you can rest assured the VA will fight you every step of the way for retro back to 1991.  However, you could likely win that, provided that you were willing to get an attorney and if VA decides to sc you but at a different effective date.  

Did this doc report you "left" the c and p exam, before he finished??  Did you read his report?  The VA "may" take that as abandoning your claim.  You would have to get your cfile and read what was reported..I have no idea.  

While there "may" be CUE, a difference of opinion between you and the c and p examiner is not CUE.  And, VA basing a denial on this c and p exam, is also unlikely CUE.  Remember Cue has to be "undebatable", and it sounds like "at least one" person would dispute that..your c and p examiner!!  

Its a virtual certainty that, to get retro back to 1991, you will need an attorney, or, perhaps a non attorney practioner like Alex Graham.  You see, GS9's, regardless of what they tell you are "not" authorized to "ok" a six figure check sent to you for 28 years of retro.  That's probably gonna require a judge at the BVA or above.  That is just the way it is.  

My suggestion is to wait until you get a decision , then decide if you want to fight va for your effecitve date.  I would.  Or I should say I AM, because I am at the cavc as we speak, fighting va for an earlier effective date, represented by attorney Chris Attig.  

[RBrogen]

6 minutes ago, broncovet said:

Probably, but its more complicated than that.  

First, even "if" you were awarded SC back to 1991, you may not get the same disability percentage as you would now.  Reason:  Its likely your condition of your knees worsened since 1991.  You may meet a critieria for a lower disability percentage back to 1991 if your knees got worse in the past 28 years or so.  (likely).  

Next, you can rest assured the VA will fight you every step of the way for retro back to 1991.  However, you could likely win that, provided that you were willing to get an attorney and if VA decides to sc you but at a different effective date.  

Did this doc report you "left" the c and p exam, before he finished??  Did you read his report?  The VA "may" take that as abandoning your claim.  You would have to get your cfile and read what was reported..I have no idea.  

While there "may" be CUE, a difference of opinion between you and the c and p examiner is not CUE.  And, VA basing a denial on this c and p exam, is also unlikely CUE.  Remember Cue has to be "undebatable", and it sounds like "at least one" person would dispute that..your c and p examiner!!  

Its a virtual certainty that, to get retro back to 1991, you will need an attorney, or, perhaps a non attorney practioner like Alex Graham.  You see, GS9's, regardless of what they tell you are "not" authorized to "ok" a six figure check sent to you for 28 years of retro.  That's probably gonna require a judge at the BVA or above.  That is just the way it is.  

My suggestion is to wait until you get a decision , then decide if you want to fight va for your effecitve date.  I would.  Or I should say I AM, because I am at the cavc as we speak, fighting va for an earlier effective date, represented by attorney Chris Attig.  

Thanks so much for the reply and info.  When I left I never got the C&P report, exam  info or anything ... I have submitted document request to try and get my hands on all of the documentation, including the original C&P report from 1991.  Right now I'm trying to educate myself on everything that is out there and then I can make an informed decision on the path forward (and definitely would be getting attorney for this if I go that route).  My latest C&P from Jan '19 found 50% or greater possibility for service connection with medical nexus for both knees as well ad degenerative disk disease along with other issues so I'm hopeful for a positive rating on those conditions.  I posted summary in C&P forum of the C&P report.

Good luck with your fight and keep me posted as to how you make out!

Edited February 26, 2019 by RBrogen

[broncovet]

Your odds just increased now that you have a nexus.  Further, Im going to assume that you had an "in service event" or aggravation, and a current diagnosis.  This "should" result in sc as you have all 3 caluza elements, if they are all documented in your records.  

Once service connected, your rating will be on "symptoms".  Let us know when you get your decision, and maybe we can give pointers on appealing, reopening, effective dates, etc etc.  

[RBrogen]

Yes I had event(s) in service that were documented and resulted in the injuries ... was airborne and first jump landed on the side of a ditch which screwed me up in several ways but at that moment couldn't report it because would have been recycled and that isn't something you want to happen.

The C&P exam repeatedly indicated testing DBQ for Direct Service Connection to every condition that they ultimately indicated "medical nexus established" and that 50% likely that it was caused by in-service event, illness or injury.