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

[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.