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

[RBrogen]

1 minute ago, GeekySquid said:

there are many possible avenues to look at.

I tried reading that note and get about 3 words.

What I do get further supports your Presumption of Soundness claim, which I think, with 4.6, are your strongest, clearest legal points. I definitely encourage you to review that doc I attached and the law I cited on Presumption of Soundness.

Yeah it is tough reading but base is there where first two words "In Service" and Both knees with arrow pointing to In Service.  I am reading 38 CFR 3.304 (b).  It sees weird that there are multiple regs e.g. 38 CFR 3.304(b) as well as 38 U.S. Code 1111 for Presumption of Sound condition.  Am I just dense or should I only be using CFR and not U.S. Code?

 

[GeekySquid]

8 minutes ago, RBrogen said:

It sees weird that there are multiple regs e.g. 38 CFR 3.304(b) as well as 38 U.S. Code 1111 for Presumption of Sound condition.  Am I just dense or should I only be using CFR and not U.S. Code?

most of the regs have multiple versions. some are aimed at RO some at BVA some just general.

you use each and every applicable law CFR or USC or PL. whichever has the best language for your claim.

[RBrogen]

Just now, GeekySquid said:

most of the regs have multiple versions. some are aimed at RO some at BVA some just general.

you use each and every applicable law CFR or USC or PL. whichever has the best language for your claim.

Ahhhh ... well both of the presumption of sound condition regs are pretty much the same .... do you think it makes sense to use them both?

[Vync]

6 hours ago, RBrogen said:

Ahhhh ... well both of the presumption of sound condition regs are pretty much the same .... do you think it makes sense to use them both?

Keep in mind it is yet another law/regulation violated by the VA

[Vync]

@GeekySquid also reminded me that every single page, including your exhibits, should have a header with your name, SSN/VA file number, page # of #, etc... If the VA misplaces or mixes up pages, it can be found and put back in the proper place

[Buck52]

1 hour ago, Vync said:

@GeekySquid also reminded me that every single page, including your exhibits, should have a header with your name, SSN/VA file number, page # of #, etc... If the VA misplaces or mixes up pages, it can be found and put back in the proper place

Vync

for some reason I had thought you knew to do that?  anyway yes its a good thing to do.. not just CUE claims but its good to do it with all claims,

when we organize our claims and help make them better to read   the raters love it.