Forthcoming C&p X Outcome Of Ankle&foot Claim

[tk3000]

Hello Folks,

Afater a long time span I finally received the outcome of my claim that was filed in February 2009 for the "left foot condition" and "left ankle condition", both secondary to my left leg condition. For my dismay the two separate conditions for what I had two separate C&P exams and two separate diagnoses/prognosis given by the C&P examiner wherein the C&P examiner clearly stated that "left ankle => strain and pain" and the "left foot => strain and pain" the VA simply decided on its "Reasoning for the Decision" to turn both conditions into a single condition and distort its own C&P examiner conclusion stating the following: "left ankle sprain with left too pain" and then given me a rating of 10% for both conditions rather than rating each one individually. It seems that clearly that the rater overlooked the evidence and the C&P examiner findings. I am planing to request a review (an appeal would take too long) on the grounds that there is a clear and unmistakable error. Does that sound a good approach to such issue? To make things worse that 10% did not change my general rating (still 40%) given the VA's formula to calc. it.

Thanks,

tk3000

[carlie]

I am planing to request a review (an appeal would take too long) on the grounds that there is a clear and unmistakable error. Does that sound a good approach to such issue? To make things worse that 10% did not change my general rating (still 40%) given the VA's formula to calc. it.

Thanks,

tk3000

tk,

Your claim is not yet at a stage for you to claim a C&UE.

C&UE is filed on a final - unappealed decision.

Berta would probably say you can ask the VA to C&UE itself,

maybe she will chime in.

jmho,

carlie

[Commander Bob]

Hello Folks,

Afater a long time span I finally received the outcome of my claim that was filed in February 2009 for the "left foot condition" and "left ankle condition", both secondary to my left leg condition. For my dismay the two separate conditions for what I had two separate C&P exams and two separate diagnoses/prognosis given by the C&P examiner wherein the C&P examiner clearly stated that "left ankle => strain and pain" and the "left foot => strain and pain" the VA simply decided on its "Reasoning for the Decision" to turn both conditions into a single condition and distort its own C&P examiner conclusion stating the following: "left ankle sprain with left too pain" and then given me a rating of 10% for both conditions rather than rating each one individually. It seems that clearly that the rater overlooked the evidence and the C&P examiner findings. I am planing to request a review (an appeal would take too long) on the grounds that there is a clear and unmistakable error. Does that sound a good approach to such issue? To make things worse that 10% did not change my general rating (still 40%) given the VA's formula to calc. it.

Thanks,

tk3000

Have you filed a "Notice of Disagreement" yet? As you may know, you have one year to file the NOD.

[sharon]

Send in medical evidence showing that they are two seperate conditions and ask for a reconsideration.

[tk3000]

tk,

Your claim is not yet at a stage for you to claim a C&UE.

C&UE is filed on a final - unappealed decision.

Berta would probably say you can ask the VA to C&UE itself,

maybe she will chime in.

jmho,

carlie

carlie,

Sorry about the delay in my response. But based on what I read, a CUE is a decision in what the rater was clearly wrong (not a judgmental error per si) in his/her assumptions on occasion of making the decision; such as in the case where the rater does not take into account the material evidence submitted (not the new evidence). That is a new claim, I filed it in Feb. of 2009, it was never appealed (I received the Decision via mail a few days ago) and the decision is even inconsistent with the findings of the C&P Examiner so it should be a clear error even from the VA point of view I would assume.

tk

[tk3000]

Have you filed a "Notice of Disagreement" yet? As you may know, you have one year to file the NOD.

I have two appeals pending as of now (one for my "Left Leg Condition" and one for "My Heartburn/Gerd Condition"), for both of them I filed a NOD and requested to have a so called "de novo review" (by Decision Review Officer) since I would imagine that taking such path (Review Officer) rather than going directly to the Board of Appeals would be faster; but it has been over 7 months since I filed the first NOD and I am still waiting...

The problem is that the appeal process, even when one request a "Decision Review Officer, takes a long time. If you consider that we have to wait on average 6 months simply to have just a claim processed and decided it would be reasonable to have such claim decide in a proper and adequate manner considering the material evidence pertaining, etc. Can Raters make such nonsense decisions and simply get along with it, jeopardizing other peoples life along the process? They should at least be held accountable such nonsense insane decisions that even contradict what the C&P Examiner has stated and diagnosed.

[tk3000]

Send in medical evidence showing that they are two seperate conditions and ask for a reconsideration.

Yeah, that's what I was considering... Should I send statements and documents attesting their error and request reconsideration based on such clear and unmistakable error?

[Berta]

No basis CUE here- you are still in appellate process.

What diagnostic codes did they give for the ankle and then for the foot and what rating did you expect?

Can you scan the decision as to their reasons and Bases and post it here (cover the personal stuff)

"left foot condition" and "left ankle condition' are very vague-that is why I asked what DCs they used-did you get a copy of the actual C & P results?

With the C & P exam you can attack the rationale step by step.

Did they use any 38 CFR citation to support how they rated both conditions together?

[carlie]

carlie,

Sorry about the delay in my response. But based on what I read, a CUE is a decision in what the rater was clearly wrong (not a judgmental error per si) in his/her assumptions on occasion of making the decision; such as in the case where the rater does not take into account the material evidence submitted (not the new evidence). That is a new claim, I filed it in Feb. of 2009, it was never appealed (I received the Decision via mail a few days ago) and the decision is even inconsistent with the findings of the C&P Examiner so it should be a clear error even from the VA point of view I would assume.

tk

As long as there has been no final decision and you are still allowed any type of appeal such as starting with a NOD - you can't even be eliglble for filing a C&UE yet.

carlie

[LarryJ]

"That is a new claim, I filed it in Feb. of 2009, it was never appealed (I received the Decision via mail a few days ago) and the decision is even inconsistent with the findings of the C&P Examiner so it should be a clear error even from the VA point of view I would assume."

tk3000,

I think what you are missing here is the fact that your claim must be "final", a final decision must have been made (i.e., the 1 year time span for you to file an NOD must have past, and your claim must be finalized by the VA) and you must NOT have filed an NOD before the 1 year time frame (for, once you file an NOD the time continues to "toll" and your claim is NOT considered finalized, because you DID file an NOD within the 1 year limit).

In other words, ALL recourse, all NODs, must have had their time to expire, passed. Then, and only then can you file a claim claiming "Clear and Unmistakable Error" on the part of the VA.

You claim is nowhere near you being able OR ready to file a CUE claim.

You must file your NOD, not CUE, pointing out the errors you feel were made, and, if you choose a DRO hearing then so be it......if you file a Form 9 and choose to go the BVA route, then so be it.

But, for the time being, get the "CUE" deal out of your head (and, I would say, "keep it out" knowing how hard a CUE is to win, but, whatever...... :D ).

[tk3000]

Thanks, Larryj. It is clear now why I can not file a CUE. But I still believe that there should be another resource besides and beyond the appeal route since the appeal usually takes a long time (seems that the VA likes to play with time since people's time is disposable for the VA).

"That is a new claim, I filed it in Feb. of 2009, it was never appealed (I received the Decision via mail a few days ago) and the decision is even inconsistent with the findings of the C&P Examiner so it should be a clear error even from the VA point of view I would assume."

tk3000,

I think what you are missing here is the fact that your claim must be "final", a final decision must have been made (i.e., the 1 year time span for you to file an NOD must have past, and your claim must be finalized by the VA) and you must NOT have filed an NOD before the 1 year time frame (for, once you file an NOD the time continues to "toll" and your claim is NOT considered finalized, because you DID file an NOD within the 1 year limit).

In other words, ALL recourse, all NODs, must have had their time to expire, passed. Then, and only then can you file a claim claiming "Clear and Unmistakable Error" on the part of the VA.

You claim is nowhere near you being able OR ready to file a CUE claim.

You must file your NOD, not CUE, pointing out the errors you feel were made, and, if you choose a DRO hearing then so be it......if you file a Form 9 and choose to go the BVA route, then so be it.

But, for the time being, get the "CUE" deal out of your head (and, I would say, "keep it out" knowing how hard a CUE is to win, but, whatever...... :D ).

[tk3000]

Berta,

The point for what I could not file a CUE is clear for me now. But I still believe that in some circumstances there should be another route besides the appeal route, especially when the rater misinterpret and overlook the material evidence submitted.

As is very common in the outcome of my claims there is no code or analogy for the decision that they made. The “Reason for Decision” itself does not make much of any sense considering the totality of evidence.

I would expect 10% for the "Left Foot Condition" and 10% for the "Left Ankle Condition".

I was working on my “Request of Reconsideration of the Decision” (I still intend to make some changes) and it supposedly explains everything, and it also has excerpt from my C&P exam and from the so called “Reason for Decision” embedded on it to help in the development of the argument. I removed the personal identification info and I am attaching a copy of it so that you can have a look (it is file in the PDF format).

No basis CUE here- you are still in appellate process.

What diagnostic codes did they give for the ankle and then for the foot and what rating did you expect?

Can you scan the decision as to their reasons and Bases and post it here (cover the personal stuff)

"left foot condition" and "left ankle condition' are very vague-that is why I asked what DCs they used-did you get a copy of the actual C & P results?

With the C & P exam you can attack the rationale step by step.

Did they use any 38 CFR citation to support how they rated both conditions together?

FOOT_ANKLE_CLAIM_RESPONSE_TO_POST_ON_FORUM.pdf

[LarryJ]

tk,

I throughly expect Berta, and others, to chime in here, but, in the meantime, it seems to me that you are following a reasonable train of thought.

I agree, the two problems, one with the ankle, the other with the foot, are and have been diagnosed as, two seperate entities, with two seperate diagnosis's.

And, yes, as such they should be "rated" individually.

Now, lose the "cue" references in your "statement", insert, instead, "NOD's", retaining the self-same rationale.

However, I am not the resident expert as to "pyramiding", etc., or in the use of the VA's common practice where it concerns the highest of two possible ratings concerning the same physiological function, the same "body part".

Thereby, I await more studied opinions and would advise you to do the same.

[carlie]

tk,

What is it that you are wanting ?

10 % for strain and a separate 10 % for pain ?

carlie

[LarryJ]

tk,

What is it that you are wanting ?

10 % for strain and a separate 10 % for pain ?

carlie

No, Carlie, he wishes a different rating between his Ankle and his Foot. He has two differential diagnosis, and the rater lumped them together (or, actually ignored, one of the diagnosis).

[Berta]

No diagnostic code- odd---I see your point- and I even see that the evidence clearly shows the impact to your schooling and obviously would impact on any future employment-

The Reconsideration Request might go a little faster than the NOD but watch out for the year NOD time clock-they can ignore Reconsideration Requests-hoping we will miss the NOD filing deadline.

It should draw them out to send you a response at some point.

Have you searched the BVA web site for how they rated similiar disabilities?

The 10% seems way too low-

The fact they gave no diagnostic codes (unusual) opens the door to tell them what code they should have rated you under.

[carlie]

tk,

One of the things the 800 # can usually provide correctly is the

Diagnostic Code numbers a claimant is rated under.

It's worth a shot.

carlie

[Pete53]

A CUE Claim is like an avocado. Most of the time you buy and avocado and it is not ripe. You have to wait till it is soft and if its a HASS turned black.

The CUE is not ripe till you have a final decision. You don't particularly want to tip the VA off but you should mention the facts and where the VA got it wrong in your appeal.

Just my opinion

[tk3000]

tk,

I throughly expect Berta, and others, to chime in here, but, in the meantime, it seems to me that you are following a reasonable train of thought.

I agree, the two problems, one with the ankle, the other with the foot, are and have been diagnosed as, two seperate entities, with two seperate diagnosis's.

And, yes, as such they should be "rated" individually.

Now, lose the "cue" references in your "statement", insert, instead, "NOD's", retaining the self-same rationale.

However, I am not the resident expert as to "pyramiding", etc., or in the use of the VA's common practice where it concerns the highest of two possible ratings concerning the same physiological function, the same "body part".

Thereby, I await more studied opinions and would advise you to do the same.

Larry,

I wrote that paper before my exchange with the forum participants and the clarification about such aspect of the CUE (that simply does not apply to my case once it is still subject of appeals). Yep, I will lose the "cue" references" and insert "NODS" instead retaining the same rational. I will rewrite it soon and I will then will post a new version, but it is going to be almost the same basic rational and argument.

thx!

[tk3000]

tk,

What is it that you are wanting ?

10 % for strain and a separate 10 % for pain ?

carlie

Carlie,

Exactly what Larry pointed out. There are two different conditions, so the rater should have applied two different ratings for each one of them. The rater simply distorted the cause, symptoms and effects of the diagnoses and medical opinions, maybe the rater just skimmed through the C&P report and made his/her own assumptions disregarding the medical diagnoses and opinions.

tk

[Commander Bob]

Hello Folks,

.... for the "left foot condition" and "left ankle condition", both secondary to my left leg condition.

Has the word "lower left extremity" been used by the VA rater?