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"thorough And Contemporaneous" C & P Exam
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vaf
I don't know how to best explain this, but here goes:
1. My husband appealed an initial rating of two separate disabling conditions in
1994. His initial date of claim was August 1993. These conditions were deemed
service connected, it's the percentage we are appealing.
2. These were remanded by the Board back to the VARO in 2001 and 2003. In October
2005, the Board remanded these same claims to the AMC for the first time, and
in March 2008 for the second time, without a decision.
3. My husband has received several C & P exams for both conditions between 1994
and 2003, however, the VARO never issued a decision during that time.
4. In August 2006, unrelated to the two disabling conditions discussed in #1
above, my husband was awarded 100% schedular rating, P & T, effective July
2003. We are seeking a 100% schedular rating effective upon his initial date
of claim with the two conditions discussed in #1, which is August 1993.
5. The most recent remand in March 2008 forced us to file a Writ of Mandamus with
the Court in April 2008. We asked for an immediate rating decision based on
the evidence already accumulated in the claims file.
6. On May 1,2008 the Court ordered the AMC to provide an update within 30 days.
7. The AMC issued a status report, saying that the claims file was at the VAOGC's
office regarding a separate Court appeal, and that the AMC would develop the
claim as soon as the claims file was returned.
8. The Court found the status report lacking in detail, and on June 19, 2008, gave
the AMC another 30 days to respond with a more specific update.
9. The AMC responded with a chronological record that mostly described delays
among the VARO, the Board, the AMC, and the VA OGC regarding the transfer of my
husband's claims file. The AMC indicated that my husband's other Court case
pending (unrelated to this one) was the sole reason for the delays since
October 2005. No discussion took place regarding the delays that occurred
during the period between 1994 and 2005. The AMC added that they were now in
possession of the claims file and would develop the claim as soon as possible.
10. My husband received a letter yesterday from the AMC stating that he would be
hearing from the local VAMC regarding a C & P exam to be scheduled for the
disabling conditions discussed in #1.
11. Today, July 30, 2008, the Court ordered that the AMC provide another status
report on this remand within 30 days.
Question: 38 CFR states that a C & P exam is to be "thorough and contemporaneous." How can a current-day C & P exam be considered "contemporaneous" but applied retroactively to a period over ten years ago? I don't understand how an exam conducted in 2008 can determine the extent of a veterans's disability from 1993 to July 2003. Can someone direct me to a court case or some precedent decision that I can use to challenge this C & P order?
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