CUE Update

[RBrogen]

I wanted to send out an update on my CUE claim.  As I suspected from the process and response, I received a denial decision letter today.  They denial almost verbatim regurgitated the same statements from the original denial in 1999.  It's like the reviewer simply read the original denial, retyped it and said too bad without addressing the issue of probative values and presumption of sound condition.  My question is for next step, should I go through the process of Higher Level Review to see what they say before going to the Board of Appeals to exhaust every option before hand.  Any thoughts would be greatly appreciated.

Best,
Randy

Edited January 21, 2020 by RBrogen

[RBrogen]

1 minute ago, Vync said:

I figured you delivered a pretty solid set of arguments. It makes me wonder if they took your arguments and considered them new evidence, thus disregarding it. But since they just regurgitated the original denial, I don't expect them to tell you if they disregarded your submission either. Keep in mind the CUE laws require the veteran to be very specific in telling them the error.

Yes I spelled out the errors, provided supporting evidence and logic.  They even eluded to the fact in the "Positive Findings" that I am currently service connected for those conditions.

[Vync]

1 hour ago, RBrogen said:

Yes I spelled out the errors, provided supporting evidence and logic.  They even eluded to the fact in the "Positive Findings" that I am currently service connected for those conditions.

Hmm... It stinks when the VA is supposed to do their job but roll out the red tape instead.

[RBrogen]

6 minutes ago, Vync said:

Hmm... It stinks when the VA is supposed to do their job but roll out the red tape instead.

Crazy thing is in the original denial decision letter Oct 4, 1999, they denied me for a pre-existing condition (unsubstantiated and without any medical evidence to show it).  This new decision stated "After reviewing records, there is no evidence on the enlistment exam of a prior left knee injury, we we conclude the left knee was considered stable on entry into the service." 

Basically they said in their own words, the previous decision denied you because you had a pre-existing condition, but we found that it didn't exist, but we are going to deny you anyway .... WTF.

[Vync]

Whoa... Now that's just nuts. It sounds like yet another potentially obvious error made by the VA.

Pre-existing conditions are not automatic denials. I am SC for a pre-existing condition, but then again, the VA even screwed that up. I was SC for aggravation and they hosed up the pre-existing disability percentage (heart of my CUE).

For what it's worth, on my entrance exam, I checked off the box for sinus issues, but the examining doc checked the "normal" box. Of course, I have medical records from before service to prove it existed.

When you check your entrance exam, did the same apply to you? (you admit having it, but doc indicated it was normal)

 

For what it's worth, I won my aggravation claim via relative equipoise.

The C&P exam said, "In my opinion, the veteran obviously had allergic problems before entering the service which got worse while he was in the service, especially when he developed asthma in 1991, while in the service. One can imply that his condition got worse while he was in the service."

The decision letter talked about the history of what I claimed, what was found in my STRs, what the C&P doc said. They conceded relative equipoise: "Resolving reasonable doubt for the veteran service connection is granted for allergic rhinitis/sinusitis."

I know it is tricky trying to get an EED because you cannot use reasonable doubt/relative equipoise (dumbest policy ever).

 

[RBrogen]

13 minutes ago, Vync said:

When you check your entrance exam, did the same apply to you? (you admit having it, but doc indicated it was normal)

 

No .. I didn't annotate any defects on any of the 3 different entrance/airborne exams I had.  The C&P examiner in an earlier exam in 1991 asked me if I had every played sports and had any injuries.  I explained that I wasn't sure if it counted (yes trying to be honest about it) but I tried out for high school football and on the first day of try outs I was tackled and it hurt my left leg.  I left the practice with no residual issues, never went to doctor, no medical treatment or records.  Turns out the doctor wrote "left knee injury prior to service, ligament injury" on the exam notes with out any medical evidence.  So that is what has plagued me from the beginning.

[Vync]

That is lay testimony (i.e. known as evidence). I didn't send my pre-service medical records to the VA. They accepted what I verbally told them. I don't think me checking the box on the entrance exam had any bearing because of the presumption of soundness. However, you do have a doctor stating you have the pre-service injury.

Isn't there some provision allowing doctors to opine about a pre-service injury without having actual medical records in front of them? I vaguely recall that. It had to do with the veteran describing the circumstances, the examiner performing an exam, and coming to a conclusion. I recall examples like an x-ray showing proof of healed fracture, etc...