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syne7
Hello, I separated from active duty on 5/10/1997. In my rating decision on 8/5/1998 the VARO/letter stated the following:
1. The claim for service connection was received on August 8, 1997; therefore, service connection is established effective the day following separation from active service.
2. Service connection for restrictive airway disease is granted with an evaluation of 10 percent effective May 11, 1998.
3. Service connection for chronic left ankle sprain is granted with an evaluation of 0 percent effective May 11, 1998.
These dates should be May 11, 1997, not 1998. The VA did not start paying me until 11/5/1998 according to ebenefits.
Should the effective dates be May 11, 1997? The day after I was discharged? As a CUE can I get these dates adjusted and back pay for the 10%?
Later in my letter it says, "There was no evidence of limited range of motion in left ankle to warrant a compensable evaluation."
However, in the medical records there were two instances that measured the dorsiflexion as less than normal.
1. SMR show an entry with 0 degrees of dorsiflexion and 35 degrees of plantarflexion.
2. The C&P Examiner found 10 degrees of dorsiflexion and then say "Normal range of motion."
Normal range of motion is defined at 0 - 20 degrees by .” 38 C.F.R. § 4.71.
My questions are:
1. Do I have a CUE for dates and can I get back paid to 5/11/97 vs. 5/11/98 or 11/5/98?
2. Since my entrance exam showed normal, is there CUE with an examiner measuring me at 50% range of motion, and then saying "Normal range of motion" with out a rationale? Also since the decision says there is no evidence of limited range of motion, and there are in the medical records. Or will this fall under the "how someone interprets a result" is not a CUE.
My understanding is that with a "normal" entrance exam, my normal range of motion should be established at 0-20 degrees of dorsflexion. Someone measuring me at 50% and declaring that "normal range of motion" should be a clear and unmistakable error. As many decisions rate 10 degrees of dorsiflexion at 10% or 20%. This would certainly manifest a different outcome from "0".
Am I smoking my own fumes, or is this argument likely to fly?
Lastly, I could argue that my ankle should have been rated under Anklyses, which would be 30%. However, I suspect that might fail under "descretion.".
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I will let others opine on the ratings... "Hello, I separated from active duty on 5/10/1997. In my rating decision on 8/5/1998 the VARO/letter stated the following: 1. The claim for servi
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SYNE7, IMHO the best thing you can do is to seek out an attorney that is familiar with VA and filing a claim for EED and CUE. CUE claims are so tricky and to fully answer your questions someone would
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