Denied Eed On A Technicality Va Themselves Caused!

[Quint7]

I just received my denial for an EED on my right knee. I was seeking to have it backdated to my end of active service in 1994.

If I can I will post the decision (the shortest denial I ever had).

Entitlement to an EED ealier than 10/28/06 is denied.

Reasons/Bases

In a statement received 10/28/06 the veteran requested an increased rating for his service connected right knee, status post meniscetomy, which had been service connected since 7/7/94 with a 0% evaluation. A rating dated 4/25/07 continued the 0% rating. The veteran filed a timely NOD. Then in a statement received 7/7/07 withdrew the appeal, opting instead to proceed with a claim increase.

-I did not know that I was 0% as I was never contacted by VA in 1994/5 as they claimed they sent a letter for a c&p and it was undeliverable. The decision on 4/25/07 was generated because the local c&p person never mailed a letter out, but instead used my last known phone #, which is in Los Angeles (I am in NY and have been since 1995). Whomever answered the old # told the c&p person they had no desire for any exams. The c&p person then sent a letter to VARO stating that "I" told her no to the exam. I called her personally and she said she made a mistake and should've sent the letter too. She was then removed or transferred somewhere else. I noted all of this in a letter with my NOD in 2007.

A rating dated 2/22/08 increased the evaluated % to 10% for the right knee, effective 10/28/06, the date of the reopened claim. The veteran filed a NOD in a timely manner and requested a local hearing. At a hearing dated 12/17/08 the vet's representative raised the issue of the propriety of the effective date of the compensionable evaluation. Although a subsequent rating decision dated 4/3/09 increased comp to 20%, no further action was taken on the issue of an EED until receipt of a phone call from the veteran on 2/22/10 in which the veteran again raised the issue. (WITH RESPECT TO THE EVALUATION ISSUE, A STATEMENT OF THE CASE WAS MAILED TO THE VETERAN 4/14/09. aS THE VETERAN DID NOT FILE A SUNSTANTIVE APPEAL, THAT ISSUE IS NO LONGER FOR CONSIDERATION).

-OK, So they are using that improper decision (generated due to the idiot c&p scheduler) as a reason to claim I can't go back to 1994 I guess????? I made sure to send a letter explaining the reason for being a no show, I sent that a day or 2 after I received the denial. They also had evidence in hand of recent treatment prior to me filing. My idiot vet rep had told me to hold off on the EED claim as I was fighting to get my back SC (which I did) and "it would slow everything down. We can always file for the EED later" Now for the good stuff!

In his correspondence with the regional office and in remarks made at an informal hearing with a DRO the veteran maked (yes, they typed "maked") 2 arguments in support of his claim for an EED for the compensionable % given for his knee. 1st he noted that the rating dated 1/20/95 which rated him 0% for the knee was assigned because the veteran had failed to show for a c&p exam. OF RECORD IN THE CLAIMS FOLDER IS THE EXAMINATION NOTICE LETTER DATED 8/24/94 WHICH WAS RETURNED TO THE POST OFFICE AS UNDELIVERABLE. THE LETTER HAD BEEN SENT TO AN ADDRESS ********, LOS ANGELES CA. (corect address for me at the time).The veteran argues that at all times relevant to the discussion he did in fact reside at that address and that the VAMC Los Angeles and VA educational service paid his education benefits had the same address. He offers no explanation for the returned mail but contends that had he been examined the results of the examination would have supported a compensionable evaluation.

-The explanation of my 0% in 1994 was listed as failure to show for a c&p, it is right in the paperwork. I had 4 years worth of service medical records following my knee problems, including the statement from a Navy Dr. that "nothing can be done, but it is not severe enough to warrant a medical board". I was seen a month before I EAS'd and was declared to have patella femoral syndrome. This alone from what I now know should have rated a 10% evaluation, no show or not as they are supposed to "use the evidence on hand" I believe. The DRO even stated "YOU SAID THAT YOU HAD PAIN IN THE KNEE WHEN YOU ENDED YOUR SERVICE AND PAIN IS ALWAYS RATABLE AT A MINIMUM OF 10%". I originally wanted to CUE based on the undeliverable letter, but the DRO said it would go nowhere.

Second, the veteran contends that he was never notified of the January 1995 rating. Therefore he argues that the original claim remains pending and requires a new decision.

Initially we note that the veteran once argued that the jan. 1995 decision was a CUE. However the CUE claim was withdrawn in a statement dated 6/4/10 and is not for consideration. The sole issue here is if there is any factual or legal basis for the assignment of the compensionable evaluation from an earlier date.

WHETHER SOME MISTAKE WAS MADE BY THE POST OFFICE IN THE ATTEMPT TO DELIVER THE EXAM NOTICE IS NOT RELEVANT TO THIS

DISCUSSION. A REVIEW OF THE FOLDER SHOWS THAT VA FOLLOWED ALL APPROPRIATE PROCEDURES TO NOTIFY THE VETERAN OF THE APPOINTMENT AND TO DECIDE THE CLAIM AFTER THE RETURNED MAIL. THE PRESUMPTION OF REGULARITY APPLIES TO THE PROCEDURES FOLLOWED BY THE VA. A REVIEW OF THE FOLDER FAILS TO SHOW THAT NOTICE OF THE JANUARY 1995 RATING WAS MAILED TO THE VETERAN. HOWEVER AS THE ISSUE OF THE EVALUATION OF THE KNEE WAS AGAIN DECIDED 4/25/07 AND A NOTICE OF THE LETTER MAILED TO THE VETERAN ON 4/27/07 THE LACK OF EVIDENCE SHOWING THAT THE VETERAN WAS PROPERLY NOTIFIED OF THE EARLIER RATING DOES NOT NOW VITIATE IT'S FINALITY.

-I wasn't notified. I have no idea what vitiate means. I didn't know I was 0% until 2006 when I wrote VA asking my status as I wanted to file for my knee and had done it right at discharge and never heard back. I had moved back to NY in Dec. 1994 and continued to collect GI Bill immediately upon my return. When I got my Cfile a few years ago it didn't have a cover letter or anything else showing they had actually mailed me the decision, just the decision. They claim to have sent a copy of my 1995 decision but have no proof of it. So it looks like the DRO would've been happy to review the EED IF...... IF.... that moron c&p scheduler had followed procedures and mailed me a notice instead of just calling the old Los Angeles #. WHAT??????? So they **** up, send a decision because of it and now it is my fault that they even issued that decision and they are using that as a basis to deny me? I don't know if the failure to mail a letter is a CUE NOW or what.

In a chronology of his military and civilain treatment received 5/21/07 the veteran wrote that he first received treatment for his right knee post-service in Feb 2006. A review of treatment records from VAMC Los Angeles and Upstate NY VA healthcare shows no treatment prior to 1/1/08 (when I decided to use the VA system instead of my Dr.)

As noted above the veterans claim for increase was received 11/28/06. There is no evidence of private treatment showing an increase in severity of the knee during the period of 1 year prior to the date of receipt of the claim, nor is there similar evidence of VA treatment that would considered a informal claim. The veteran has submitted statements from Dr. Craig Bash and H. Montemarano who both view that based on the veterans service treatment records the veteran should have been assigned a compensionable evaluation at the time of the initial 1995 rating. However there is no basis in law for reconsidering the initial, NOW FINAL, rating on the basis of these current medical opinions. Accordingly, there is no factual or legal basis for the assignment of a compensionable evaluation from any date earlier than the date of the receipt of the claim for an increased rating.

For the foregoing reasons the claim for an EED is denied.

-So again, it looks like the DRO wanted to use Dr Bash as a reason to assign me an EED BUT THE STUPID FINAL DECISION BASED ON THE STUPID C&P SCHEDULER PREVENTS HIM FROM LEGALLY DOING SO! In my mind that final decision should be declared illegal as I was doing everything I was supposed to. The DRO also said he would go over the Cfile page by page and that is why it takes so long. He obviously missed that during a physical in 2000 the Dr. noted "ongoing knee problems related to military service that was diagnosed as patella femoral syndrome". He also obviously didn't read my statement that the C&P scheduler never made proper contact with me. She even stated when I asked her "I didn't even ask if the person I was speaking with was you, I just assumed it was, so I never sent the letter".

I am livid. This DRO seemed on the Up and Up, is even a lawyer and was pretty clear that so long as the Cfile showed no proof of them contacting me in 1994/5 (which it not only does but HE states it didn't) that I would rate 10% minimum.

If anyone has any idea on how to proceed with this I would appreciate it. The cover letter says that a NOD on my behalf was filed to send the case to the BVA. Is this normal as the case was just closed 3 days ago and I haven't spoken to any reps.

Thanks all who read and reply.

[Chuck75]

It's time to hire a lawyer. You are going to get into a very technical legal situation/argument.

The lawyer should be at least VA recognized, and also admitted to practice before the federal district court.

Even though the VA said one thing, that does not mean that such things as "due process" were followed to the letter.

Law regulates how much a lawyer can charge, 20% of any retroactive payment, as an example.

Also, a case can be re-opened with new evidence. Then if successful, there can be another fight to recover any retroactive compensation.

You really, really need a lawyer at this point.

Make sure that you have copies of all the records you can get your hands on before you start the battle.

I just received my denial for an EED on my right knee. I was seeking to have it backdated to my end of active service in 1994.

If I can I will post the decision (the shortest denial I ever had).

Entitlement to an EED ealier than 10/28/06 is denied.

Reasons/Bases

[Quint7]

I have a call in to my rep....... lotta good that will do since he was one of the 2 that agreed "that decision doesn't matter".

I also emailed on Iris stating a basic rundown and stating that the April 2007 decision was illegal and should be vacated as I followed all proper procedures on my end. VA had all of my correct contact info and they didn't update the phone number. Not my fault. The c&p person didn't follow her procedures, not my fault.

As I said, the DRO basically told me that if there was no notice sent in 1995 it would be a pretty easy case. At least now I have proof that they didn't mail me a decision in 1995 like they claimed.

I am looking at back pay and the refund of 3 VA home loan funding fees from the houses I bought when I was "0%". That is a LOT of money. I had decided after the DRO to just live with the decision if it sounded legit. Now I'm back in fighting mode and want someone to step up and do the right thing.

Yeah, I know...... VA do the right thing.

[Quint7]

Also if anyone is familiar with a regulation, Fast Letter of M-21 section that covers how the C&P people are supposed to contact you that would be helpful too.

[john999]

I agree that it is time to hire a lawyer. If the lawyer reviews your claim and thinks it is a CUE then go for it. The thing with CUE claims is that failure to assist is not grounds for a CUE. I brought that up in my CUE where the VA did not give me my appeal rights back in 1973. I did not move and they knew right where I was. I don't see how you could have gotten due process. Remember that according to the VA no matter how unfair a decision is that is not a CUE. Yes, that is hard to believe but I have it in black and white. You could have a lawyer just review your claim for EED to see if you have any traction. I have had other claims denied for not going to a C&P exam. However, the decisons were appealed on that basis. Once the decision becomes final then you are held to the incredibly high standards of a CUE. According to the VA if the VA sends your decision to the wrong address and it gets returned to sender that is still not grounds for a CUE. A piece of advice is never to move during the claims process. The VA is bound to screw it up even when you put in change of address with the USPS and with the VA. To this day I get phone calls from the VA for other vets. Yes, I think you got screwed, but is it a CUE I am not sure.

[Quint7]

Thanks John. I'm not sure if it is a CUE either. I have no problem going before a BVA video conference or anything, it just really gets me that I did everything right and 2 people, my rep and that moron C&P person put me in a situation where I lose out on what was pretty much a slam dunk. The DRO is a lawyer too and a disabled vet and really came across as wanting to give me the EED. I'm sure 2 weeks from now I will get a voicemail from my rep saying "I see you got a denial. well on to the BVA". Worthless........

[carlie]

Quint,

I do not see anyway to get your effective date back to 94/95 other than having a CUE granted.

That has to do with law a breech in the law - about nothing but this raises to CUE.

Did they ever, in the Reasons and Bases narrative make mention of "Abandoned claim" 38 CFR 3.158?

Here's some decisions that explain "vitiate" :

http://www4.va.gov/vetapp08/files1/0802438.txt

On July 22, 1993, VA received the veteran's claim to reopen the issue of entitlement to service connection for PTSD. In a March 1994 rating decision, the RO granted service connection for PTSD and assigned a 50 percent evaluation, effective July 22, 1993. The veteran did not appeal this decision and the decision is final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In July 2003, the veteran filed a claim for entitlement to an earlier effective date.After a rating decision that grants service connection and assigns an effective date is final, an earlier effective date may be established only by a request for revision of that decision based on clear and unmistakable error (CUE). See Rudd, 20 Vet. App. at 299. Free-standing earlier effective date claims that could be raised at any time are impermissible because such claims would vitiate decision finality. Rudd, 20 Vet. App. at 300. Accordingly, where a free-standing earlier effective date claim is made without a request for reconsideration due to CUE in the relevant rating decision, the claim must be dismissed. Rudd, 20 Vet. App. at 300. Here, the veteran's claim for entitlement to an earlier effective date was filed after a rating decision was final and the claim did not allege CUE in the March 1994 rating decision. Accordingly, it is a free-standing earlier effective date claim and the Board must dismiss the appeal. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (holding that plain statutory language is applied unless it creates absurd results).

http://www4.va.gov/vetapp08/files5/0836874.txt

Generally, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The effective date rules for increased compensation claims apply to TDIU claims. Hurd v. West, 13 Vet. App. 449, 451 (2000).Specifically with regard to claims for increased disability compensation, the pertinent legal authority provides that the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date; otherwise the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(o)(2).The basic facts in this case are not in dispute. The veteran's initial claim for a TDIU was denied by the RO in a July 1994 rating decision. The veteran did not appeal his decision. In September 2000, the veteran again sought entitlement to a TDIU. See VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, received in September 2000. [The Board acknowledges the attorney's contention that the veteran's claim for TDIU was filed in February 2000; however, the question of whether his claim was filed in February 2000 or September 2000 is irrelevant, since, as explained below, the present claim for earlier effective date is without legal merit.] In an October 2000 rating decision, the RO denied entitlement to a TDIU. The veteran filed a NOD in November and a SOC was issued in March 2001. A substantive appeal was filed in March 2001. Thereafter, the record reflects some confusion as to whether the veteran withdrew from appeal the claim for a TDIU. In any event, in a December 2003 rating decision, The granted a TDIU, effective January 15, 2003 (the date of the claim for increase). The veteran was provided notice of the rating decision by letter in December 2003; however, he did not initiate an appeal of the assigned effective date by filing a NOD within one year of the date of the December 2003 notice letter. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.302(a). Rather, the first communication in the record following the December 2003 rating decision is a VA Form 21-0538 Status of Dependents Questionnaire, dated and received in February 2005.As the veteran did not initiate an appeal within one year of the notification of the December 2003 rating decision, that rating decision, and the determinations therein-to include the assigned effective date for the award of a TDIU-- became final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103.In October 2005, the veteran's attorney filed a statement wherein he questioned the effective date of the grant of a TDIU. The RO accepted this statement as a claim for an earlier effective date for the award of a TDIU. In a July 2006 rating decision, the RO denied an earlier effective date for the award of a TDIU. The veteran filed a NOD in November 2006 and a SOC was issued in March 2007. A substantive appeal was filed in May 2007. The veteran testified during a Board hearing in September 2008. While the veteran now seeks to establish an earlier effective date for the award of a TDIU, the United States Court of Appeals for Veterans Claims (Court) has held that such a freestanding claim for an earlier effective date attempts to vitiate the rule of finality. See Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). If a claimant desires an effective date earlier than that assigned in a RO decision, the claimant must perfect a timely appeal as to that decision. Otherwise, the decision becomes final and the only basis for challenging the effective date is clear and unmistakable error (CUE). Id. Here, however, neither the veteran nor his attorney has alleged CUE in the December 2003 rating decision-a matter that must be raised with specificity. See e.g., Damrel v. Brown, 6 Vet. App. 242, 245 (1994).The Board is sympathetic to the veteran's situation, and acknowledges his and his attorney's contentions that a TDIU claim has been pending since 2000. However, as neither has alleged CUE in the December 2003 rating decision, their assertions are to no avail. [A review of the July 2006 rating decision and the March 2007 SOC shows that the RO also did not interpret the contentions of the veteran and his attorney as raising a claim of CUE in the December 2003 rating decision.] In this case, there is no legal basis for granting the benefit sought because the finality of the prior December 2003 rating decision assigning the January 15, 2003 effective date precludes VA from assigning any earlier effective date. To the extent that the veteran seeks to vitiate the finality of the December 2003 rating decision merely by filing an earlier effective date claim, the Board finds that the controlling precedent in Rudd requires disposing of the claim for an earlier effective date as a matter of law. Id. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that, where the law is dispositive of the claim, it should be denied because of lack of legal merit or entitlement under the law).ORDERAn effective date earlier than January 15, 2003 for the award of a TDIU is denied.