derrell's - first post

[derrell]

godeep,

What are you trying or wanting to do ?

Hello how are you? I'm derrell got a ? When i got off active duty i was checked by the va and giving a 0% for facial scars ididn't appeal it i didn't know i did not have help from anyone. 2009 i was told to ask for an increase

for facial scars i did it was approved 30% original eff dt 1998 new eff dt 2009 30%. Same evidence was used for the increase,no new evidence can i get my eff dt changed to close to the original date 1998 or should

i leave it alone the scar can't be treated and that's the way it's always been.

[derrell]

How is everyone doing? I got out the military in 1998 did a va eval and was found 0% sc for a facial scar. I didn't know to appeal it because i thought that was the end of that. 9 years later

i asked for an increase for the facial scar and recieved 30% under 7800-Facial Scars. Why did i not get this the first time the same evidence was used no new evidence. Original eff dt 1998

new eff dt 2009. Do i have to accept this new date since i didn't appeal. I requested the increase july 2009 my award letter stated i was approved 1 week later i got backpay for 6 months.

[carlie]

derrell,

I had to split your posts off from that other topic.

When you have something you want to post try to pick out

a Forum it relates to and post you a new topic in that Forum.

[carlie]

bump

[Philip Rogers]

derrell - I would submit a claim for a clear and unmistakable error (CUE), advising them that the scars are the same as they were originally and that they should have been rated 30%, in the original decision. They gave you 30% because you requested an "increase." You should have submitted a CUE claim, then. Look up the description of 7800-Facial scars and enclose it with your CUE claim. jmo

pr

How is everyone doing? I got out the military in 1998 did a va eval and was found 0% sc for a facial scar. I didn't know to appeal it because i thought that was the end of that. 9 years later

i asked for an increase for the facial scar and recieved 30% under 7800-Facial Scars. Why did i not get this the first time the same evidence was used no new evidence. Original eff dt 1998

new eff dt 2009. Do i have to accept this new date since i didn't appeal. I requested the increase july 2009 my award letter stated i was approved 1 week later i got backpay for 6 months.

Edited March 2, 2011 by Philip Rogers

[broncovet]

Your only two options are N and M evidence and CUE. It sounds like you are going to need to find something wrong with their decision that rises to the CUE level.

First, you should post the "Reasons and bases" they gave with your decision to see if those are valid.

Next, see if they sent you proper notices to appeal...you are entiltled to be informed of your appeal rights when you get an unfavorable decision.

You can also look at the C and P exam itself to determine if it was adequate. If the exam was defective, then you may have a basis of Cue. Some issues for defective C and P exams: The doctor needs to be qualified...and list his or her qualifications. If he has not been trained in your specific condition, then that C and P exam is probably defective. The door to a defective exam may be left open if the doc doing the C and P did not have access to your full records, either.

The Cue standards have been posted, and I will not do so again, but you should certainly review them, along with your records and maybe a sympathetic and knowledgeable VSO, too.

Sometimes the courts opinion of CUE and ours are different, but do remember the Va has to sympathetically develop your claim to its optimum before deciding on its merits...but no, errors in VCAA notice is not CUE. These errors have to be undebatable, based on the laws at the time, and they cant be a difference of opinion in rating percentages...but they can be a legal technality where the VA failed to follow their own regulations, BUT that technicality has to be outcome determanitive.

Missing evidence may also open the door to CUE. The VA is required to tell you if there is missing evidence. Sometimes, the VA considers the evidence "missing" to be negative. That is not correct. I use the lottery ticket explanation. If you can not find an unscratched lottery ticket, this is not the same as if you scratched the lottery ticket and it is a loser. This "missing lottery ticket" needs to be found, and the VA often wants to call that "negative" evidence, which it is not.

Edited March 2, 2011 by broncovet

[Philip Rogers]

broncovet - It sounds like a simple CUE claim, to me. Facial scars are fairly specific and it would be literally impossible for the VA to misapply the sizes of the scars. If the VA first awarded 0% and a couple yrs later awards 30%, then it can't be a matter of opinion. He should enclose photos of the scars with his CUE claim. I've only done one CUE claim for scars and the claimant won 3.5 yrs retro for TDIU, up from a pension claimant. Around $72k retro. Photos really help. jmo

pr

Your only two options are N and M evidence and CUE. It sounds like you are going to need to find something wrong with their decision that rises to the CUE level.

First, you should post the "Reasons and bases" they gave with your decision to see if those are valid.

Next, see if they sent you proper notices to appeal...you are entiltled to be informed of your appeal rights when you get an unfavorable decision.

You can also look at the C and P exam itself to determine if it was adequate. If the exam was defective, then you may have a basis of Cue. Some issues for defective C and P exams: The doctor needs to be qualified...and list his or her qualifications. If he has not been trained in your specific condition, then that C and P exam is probably defective. The door to a defective exam may be left open if the doc doing the C and P did not have access to your full records, either.

The Cue standards have been posted, and I will not do so again, but you should certainly review them, along with your records and maybe a sympathetic and knowledgeable VSO, too.

Sometimes the courts opinion of CUE and ours are different, but do remember the Va has to sympathetically develop your claim to its optimum before deciding on its merits...but no, errors in VCAA notice is not CUE. These errors have to be undebatable, based on the laws at the time, and they cant be a difference of opinion in rating percentages...but they can be a legal technality where the VA failed to follow their own regulations, BUT that technicality has to be outcome determanitive.

Missing evidence may also open the door to CUE. The VA is required to tell you if there is missing evidence. Sometimes, the VA considers the evidence "missing" to be negative. That is not correct. I use the lottery ticket explanation. If you can not find an unscratched lottery ticket, this is not the same as if you scratched the lottery ticket and it is a loser. This "missing lottery ticket" needs to be found, and the VA often wants to call that "negative" evidence, which it is not.