CUE Potential

[RBrogen]

Hello Everyone,

I wanted to post this draft CUE motion here to get your opinions on strength of case, format and any other comments.  It has been redacted to remove my social.

General Overview:
I am service connected since March 2019 for neck, bilateral knees and ankles among other things.  The knees are the condition I am primarily focusing on at this time.

I had 3 full physical medical exams with no pre-existing conditions noted.  The first exam was when I joined the Florida Army National Guard September 16, 1985.  The second exam was when I transitioned to the regular Army on April 29, 1987  and the third exam was when I went to Airborne physical on March 13, 1989.  I injured my both knees during Airborne training, especially my left knee when I landed wrong on a jump due to wind.  I did NOT go to sick call or report it because there was no way I wanted to be recycled or told I couldn't come back ... which is a common theme with these types of training programs.  I also had an injury documented in STR for right knee MCL strain a few months before I got out.  I left the service because a few months after injuring my knee, I blew my back up and had a slipped disc and was discharged on July 3, 1991.

Not knowing anything about the VA, the DAV rep I had said file for your back so I did and was granted 20% for Low back syndrome as soon as I got out.  In 1999, I filed a claim for increase in low back syndrome as well as bilateral knee condition.  I had arthroscopic surgery on both knees and multiple instances of reports from doctors referring to the injury as service connected.  I was denied service connection for both knees as pre-existing condition on left knee and no chronicity on right knee.  I believe the rater completely ignored 38 U.S.C. 1111 as well as 38 CFR 4.6 in ignoring a preponderance of evidence supporting my claim.  I believe had the rater applied the laws correctly as well as reviewed the evidence available to him at the time, it would have manifestly changed the decision.

I'm attaching my information in pdf format to make it easier to read.  Than you all in advance for taking the time to look it over.

 

 

 

 

 

Cue Motion DRAFT Aug 29 2019_RedactedSmall.pdf

Edited September 4, 2019 by RBrogen

[Vync]

Have you thought about tossing in 38 CFR § 4.2 Interpretation of examination reports? If they failed to accurately interpret your examinations, might as well make sure they know. The combo of 4.2 and 4.6 seems to go hand in hand.

[RBrogen]

1 minute ago, Vync said:

That's awesome!

I have had a few rough drafts and posted them over the years. After getting advice and learning more, I looked back at them and determined they would have crashed and burned. Need to make them airtight.

Yeah there are some very experienced folks in here and I'm never one to think I've cornered the market on the best approach.  As you said, if you just throw it together it will get shot down because VA has experts looking for anyway they can to deny your claim.

Just now, Vync said:

Have you thought about tossing in 38 CFR § 4.2 Interpretation of examination reports? If they failed to accurately interpret your examinations, might as well make sure they know. The combo of 4.2 and 4.6 seems to go hand in hand.

Wasn't aware of that one but it sounds like it is exactly the area where "numb nuts" screwed up!

[Vync]

Indeed! I plan to make the VA aware of every single error and how it impacted my claim.

In my case, one of the VA violations was on 4.2 by not applying 4.40 and 4.45 which state painful motion and inability to perform normal working movements of joints should be considered limited motion (i.e. DeLuca and Hicks). The VA simply quoted 4.59 and gave me the minimum of 10% instead of a higher rating.

I wanted to show you a rough draft of what I have now, which may be far from perfect. Still polishing.

Quote

38 CFR § 4.2 Interpretation of examination reports states in part “…It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present…” (Exhibit # page #, para #)

The decision letter dated March 6, 2000 (Exhibit # page #, para #) quotes evidence from Dr. Ballard (Exhibit # C&P dated XX/XX/XXXX page # para #) stating “…He had headaches, difficulty chewing, limited opening, and a loud clicking and popping on attempts to open fully. He responded to pain and discomfort on opening beyond 29mm…” which clearly mandates application of 38 CFR 4.40 (Exhibit # page #, para #) “…the inability…to perform normal working movements of the body with normal excursion… …functional loss may be…due to pain…”

The decision letter dated March 6, 2000 (Exhibit # page #, para #) does not quote evidence from Dr. Lopez (Exhibit # C&P radiology report dated XX/XX/XXXX page # para #) stating “…Initial videoflouroscopy on the right side demonstrates that the patient is unable to fully open the jaw unless mechanically doing it with his hand and thus capturing…” which clearly mandates application of 38 CFR 4.45 (Exhibit # page #, para #) mandates “…factors of disability reside in reductions of their normal excursion of movements…(a) Less movement than normal… impaired ability to execute skilled movements smoothly…(f) Pain on movement… disturbance of locomotion…”,

38 CFR 4.2 was not applied as legally required otherwise 38 CFR 4.40 and 38 CFR 4.45 would have been applied to the evidence.

I'm not looking for feedback on this yet, but thought it might show you another possible approach.

[RBrogen]

Here's the latest draft of my CUE w/o exhibits attached.  Thanks in advance for your input.

Cue Motion Draft Sept 7 2019.pdf

[Berta]

Randy, I think your CUE is swell!

Vync-that is an interesting point on  38 CFR § 4.2- I have never used that in CUE claims- because I feel 4.6 covers a lot -and medical determinations ,if they are wrong, do not raise to CUE level just on that basis- still it would not hurt to throw it in-

I believe the strongest point of this CUE is the Fact that RBrogen had no pre existing conditions listed on his entrance exam and was accepted into service as fit to serve- and was a paratrooper -certainly a well know cause of lower extremity and back issues for many with that MOS.

I didn't  leave because , as Buck said I had other issues to wok on- true- and lots of Fall maintenance on my home-and farm.

I left because most of us hard core VA claimants here have "practiced" before the VA at the VARO level by fighting their War of the Words.The VARO level is the best place t get a CUE awarded.

I recall only one veteran here who won a CUE at the BVA, a CUE Motion on  BVA decision.

And two widows who filed Motions for BVA reversal due to CUE and lost.

99% of the CUEs we see here occur at the RO level. GBArmy made that point somewhere here a few weeks ago-

if I can find how he stated it, it is well worth repeating.

I am very happy with the excellent CUE advice that Vync, Geeky Squid, GB Army , Kanewnut, Dawsonatl and others here have acquired. I feel I am missing others here as well I should mention...who do understand CUE at the RO LEVEL.

R Brogen does as well!

I only recall one member here who won a CUE at the BVA, as a motion under CUE on a BVA decision.Two widows filed BVA motions but lost.

They did not have basis for CUE even at the RO level.

That is where a CUE should receive a Frontal Attack- at the RO level----

if it is a valid CUE ,there is no need for it to get on the Hamster wheel.

 

 

 

 

Edited September 9, 2019 by Berta

[Berta]

And Vetquest and Mieka.....who also, like many others here ,understand CUE at the RO level.