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Smr's Not Cited


Hello everyone,

I was wondering if you guys and ladies can look over this situation and try and help answer a couple of questions.

Here's the situation

A soldier's SMR's indicate a very long history of receiving specialized medical treatment through the date they left active duty. Several years passed before the soldier had a C&P examination. After leaving active duty, the soldier could not afford the specialized treatment received while on active duty. The VA gives the soldier a low-ball rating based solely on the their observations during the exam.

Here are the questions:

1. In this situation, should the VA base the rating percentage on the evidence provided when the claim was originally filed, results of the C&P exam, or some combination of both?

2. How does one go about getting older versions of C&P exam guidelines and schedules of ratings for the last 20 years (or whatever may be available)?

3. If the VA C&P examiner did not annotate the details of specialized medical treatments noted in the SMR's, would that be grounds for a CUE to challenge the low-ball rating percentage?


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The VA should have based its original rating on your SMR's, current medical history, and the C&P exam. I think if an error occurred it would be the rating officer that made the error. The rater is supposed to look at all the evidence and make a rating decision. I don't think that if the c&p examiner failed to annotate anything in your SMR's that alone with be the basis of a CUE. It is up to the rater to examine the SMR's, medical history, and also to look at the C&P exam and see if it is adequate. If you could establish that crucial available evidence was excluded from the rating that might be a CUE. At least I am hoping so myself. For instance, the VA excludes your SMR's from a rating decision. Phil, Carlie and Berta know better than me but I will get the ball rolling.

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My opinion:

1.medical evidence is what warrants a specific percentage. But the VA cannot rate on what they dont have.

Did he get consistent private treatment for the disability? Did VA know of and obtain those private medical records?

2. Some of the older BVA decisions contain references to past regulations and rating criteria.

Most rating criteria has not changed. But changes are noted at the VBA link here to the AMIE C & P worksheets.

Also BVA decisions might reveal a similiar type claim with references to what the BVA used to determine the rating.

3. CUES are based solely on legal error.

Using the wrong diagnostic code, which could have prevented the veteran a higher rating, is a legal error if the evidence warranted a different code with a different percentage potential.

Que4stion for you re this vet---

If the veteran could not obtain the same specialized treatment he got in the Mil for this disability- how did the VA determine his condition was still current and at ratable level?

Can you tell us what his disability is and his rating for it?

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