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.

[Quint7]

Thanks Carlie. They had my contact information, they just didn't use it. They called a phone number from 1994, in another state and never confirmed that the person they spoke with was me or anyone that even knew me.

They had my current info as I had been in VA health care for years (although I didn't use it, they had me in the computer going back to 1999). They also had all of the info I sent along with the claim that had my current info. I just don't see how the vet can be penalized for them not using the recent contact info that they had.

The other thing is that when I filed an NOD about the 0% my complete moron rep told me to withdraw it and file an appeal which looks like reason #2 that finalized the claim as I "agreed" there was a decision and appealed it, as opposed to disagreeing that there should've been a decision at all. I can already imagine how my rep will duck and dodge that one. I don't see a CUE either unless there is a regulation about how to contact a vet that includes something about verifying that you are speaking to the vet and/or mandating a letter no matter what for a C&P. I'm really hoping that there is a way for some level of VA to completely vacate the decision.

All of this happened in 2006 as I was just starting with the VA and was foolish enough to listen to my rep.

Lastly, is there a way for us to still search back over a year ago? I did a search and no matter what it only gives topics with replies from the last 12 months instead of the old way that listed all posts back to the begining.

Thanks!!!!!!n

[Quint7]

I forgot to add that the reg you posted really seems to pertain to reducing or eliminating benefits, whixh is the only thing I have been able to find so far too. I would love to see a M21 type flow chart of "how to schedule exams with the veteran". That would be the keystone to any chance I have.

[Quint7]

"Processing of C&P Exam Requests

VSRs at VAROs determine the type of C&P exam(s) a veteran needs based on the available medical records and use the Compensation and Pension Record Interchange (CAPRI) system to order C&P exams from the VA HCF of jurisdiction. VA HCF personnel determine where and how to conduct the C&P exam and contact the veteran to schedule the exam. VHA guidance states that VA HCF personnel are to contact the veteran to schedule their C&P exam appointments and mail notification letters to the veteran."

This is from:

http://www.vawatchdog.org/09/nf09/nfjun09/nf062609-1.htm

So I guess I need the VHA regs.

[john999]

Quint

Run this by a lawyer. If the VA can get away with not even sending appeal right to a vet on a decision then they can do just about anything. It is impossible to get due process without appeal rights, but that is not a CUE because it falls under duty to assist. See if you can get a lawyer to take you case. You are in for a rough fight. You will probably fail at the VARO level. Then you go to BVA.....failure most likely. Then you must go to court. Very long process and you need expert legal advise I think to win. You do not have to tell me it is unfair. I know it, but is it a CUE? That I doubt. Why do you think they make CUE so difficult? Because they don't want to pay 20,30,40 years of back pay. Check out CUE and duty to assist.

[carlie]

Quint,

Keep in mind that the following may have not been of record in the 90's,

but they may have.

Go to this link :

http://www.warms.vba.va.gov/M21_1MR3.html

Scroll down to this Section :

Subpart IV - General Rating Process

then click on and study these Sections :

Chapter 3 - Examinations

Table of Contents12/29/07

Section A - Examination Request8/3/09

Section B - Scheduling Examinations12/29/07

Section C -Control of Examinations8/3/09

Section D - Examination Reports7/14/10

Section E - VA Medical Facilities

[Quint7]

Thanks Carlie.

I stopped in at the VA clinic to talk to the C&P guy about this (he is an AF vet) and basically said "do you guys have any hard and fast rules stating that you MUST send a letter out even after talking to the vet"? He said 'sort of'. But he said that they each do it their own way and he makes sure to not only send a letter no matter what, but if a vet is a no show he emails the VARO that ordered the exam and tells them that the vet was a no show and asks if there is additional contact info. He said he will even mail out 3-4 notices if the vet has multiple addresses listed. I don't know if the person he replaced was a vet too, but it just shows the treatment vets CAN get if someone in VA takes their job seriously.

He ended the conversation with "sorry buddy, sounds like it is time for you to get a lawyer".

Great............