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]

Carlie, thanks for the reply.

There is no mention of abandonment. What I included was word for word. The decision, along with the DRO makes it sound like the decision "continuing" me at 0% is what "closed" my 1994 claim.

As I said, that final decision was precipitated by the VA failing to contact me at the phone # they had or to mail me a letter informing me of the c&p exam. I was waiting for the c&p and all of a sudden a denial shows up saying I failed to show up for the exam. This is the ONLY basis for the "decision" which then (thanks to my moron vet rep) was appealed even though I said the decision was improper.

Had I been given a c&p I would have recievex the 10% they granted later that year and filed the EED claim as part of it. My rep said to appeal and then not to go after the eed as I had a back claim pending and all work on that would stop until the eed was decided, THEN they would do my back (again, aml moron).

As I said, the c&p person blew it (I think I even ranted about it here) and took an open claim from 1994 & "closed" it by saying I failed to show for an exam I was never informed of.

Ugh..... that is a LOT (re$20000+) Im out because she failed to act properly.

[Quint7]

I just tried searching for my post regarding that c&p from 2006 and it looks like the site will now only search within one year of todays date unless I am missing something. I hope not. any shred of proof that I was ready, willing and able to appear helps.

[Quint7]

I have tried looking in the m21 to not avail.

Does anyone know if there is any section on how VA is SUPPOSED to contact a veteran for a c&p? I am assuming that it would fall under the medical side of VA and not the one we deal with for claims.

I'm looking for something that talks about mailing notification and/or confirming that the person on the phone is the actual veteran. Also where they should look for contact info.

I stopped at the local VA clinic and they said that I was in the system since 1999 which means that the stupid old phone number had been updated since then for sure. It looks like the appointment person just opened my cfile and called the contact information on my DD214 from 1994.

[john999]

I think all this comes under duty to assist and that is not grounds for a CUE. I know that sounds awful. VA kicked me in the &^%$& as well on this matter. I did not even get appeal rights on a decision (1973) and this is not a CUE. How could I have appealed if I did not even know I had the right to appeal my rating? Still BVA says no CUE on that issue. I have had at least two claims denied due to VA not notifying me of a c&p. Fortunately, when I got the denial and the reasons and basis for it I appealed in a hurry. Even if you prove VA messed up in 1994 I don't think you can get CUE and EED. VA says no matter how unfair a decision it is not CUE. So fairness is out the window. They have to break the law and it has to be cogent enough to have made a difference in your rating.

[Quint7]

John I don't doubt you one bit. I guess my angle would be that since they failed to follow their own rule as far as notification (hopefully, if I can find that info or talk to the local C&P guy next week) that the decision produced as a result of that would be invalid. Everything else is right in line with approving the EED, but that decision killed it. I am going through all of my files as I know I wrote a letter flipping out that they failed to notify me and rated my then open since 1994 claim illegally. I don't know if it is a CUE or if they can vacate a decision like a court in the real world can, but I have to try. I think that when the dots are connected any normal person would agree, but as we all know, even after the dots are connected the VA still can't color within the lines. LOL

I guess all I need is something that says C&P people MUST do A, B, and C when setting up an appointment for an exam. She did P, Q and R instead.

[carlie]

Quint,

I hate to be a nay sayer but in my opinion, if VA says there is something in the file to show they

attempted to contact you - then you do not have a CUE and it still wouldn't be a CUE even if there was not

something showing an attempt at notification in the file.

Keeping VA apprised of addresses is one of our main jobs.

Especially when we have any claim issues in the system.

Heck - a vet could be 100 % for a couple of years - not following up with any doctor's -

VA sends them a re-exam notice - vet never get it because of wrong/incorrect address,

and VA will do a proposal to reduce.

I do not see getting an EED due to no notification, especially back to 1994.

Sec. 3.655 Failure to report for Department of Veterans Affairs examination. (a) General. When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or © of this section as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. For purposes of this section, the terms examination and reexamination include periods of hospital observation when required by VA. (b) Original or reopened claim, or claim for increase. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. © Running award. (1) When a claimant fails to report for a reexamination and the issue is continuing entitlement, VA shall issue a pretermination notice advising the payee that payment for the disability or disabilities for which the reexamination was scheduled will be discontinued or, if a minimum evaluation is established in part 4 of this title or there is an evaluation protected under Sec. 3.951(b) of this part, reduced to the lower evaluation. Such notice shall also include the prospective date of discontinuance or reduction, the reason therefor and a statement of the claimant's procedural and appellate rights. The claimant shall be allowed 60 days to indicate his or herwillingness to report for a reexamination or to present evidence that payment for the disability or disabilities for which the reexamination was scheduled should not be discontinued or reduced. (2) If there is no response within 60 days, or if the evidence submitted does not establish continued entitlement, payment for such disability or disabilities shall be discontinued or reduced as of the date indicated in the pretermination notice or the date of last payment, whichever is later. (3) If notice is received that the claimant is willing to report for a reexamination before payment has been discontinued or reduced, action to adjust payment shall be deferred. The reexamination shall be rescheduled and the claimant notified that failure to report for the rescheduled examination shall be cause for immediate discontinuance or reduction of payment. When a claimant fails to report for such rescheduled examination, payment shall be reduced or discontinued as of the date of last payment and shall not be further adjusted until a VA examination has been conducted and the report reviewed. (4) If within 30 days of a pretermination notice issued under paragraph ©(1) of this section the claimant requests a hearing, action to adjust payment shall be deferred as set forth in Sec. 3.105(h)(1) of this part. If a hearing is requested more than 30 days after such pretermination notice but before the proposed date of discontinuance or reduction, a hearing shall be scheduled, but payment shall nevertheless be discontinued or reduced as of the date proposed in the pretermination notice or date of last payment, whichever is later, unless information is presented which warrants a different determination. When the claimant has also expressed willingness to report for an examination, however, the provisions of paragraph ©(3) of this section shall apply.(Authority: 38 U.S.C. 501) Cross References: Procedural due process and appellate rights: See Sec. 3.103. Examinations: See Sec. 3.326. Reexaminations: See Sec. 3.327. Resumption of rating when veteran subsequently reports for VA examination: See Sec. 3.330.[55 FR 49521, Nov. 29, 1990; 58 FR 46865, Sept. 3, 1993]