0% First Va Exam 95 Asked For Increase 2009 30% Increase

[derrell]

1995 service connection for scar below right eye has been established as directly related to military service. This condition is evaluated as 0 percent disabling from april 5, 1998. A noncompensable

evaluation is granted for slight disfigurement. A higher evaluation of 10 percent is not warrented unless evidence demonstrates moderate disfigurement. Service medical records for the period 1995

to 1998 shows that the veteran was in a MVA in august 1995 resulting in scar below right eye. VA examination dated 6-12-98 indicates that keloid formed below right eye from scar. The veteran report

some sharp pains and throbbing sensations in the scar area off and on at times. Examination of the face shows a slightly darker pigmented scar in the right zygoma area. The scar is slightly irregular

and meausures about 2 cm in length, and at its widest approximately 4 mm. There is palpable slight thickening suggesting some fibrotic changes. There is minimal keloid formation. That was first ruling.

Reason for decion to increase scar from 0% to 30%

The evaluation of scar, below right eye is increased to 30% disabling effective june 19, 2009. An evaluation of 30%is assigned whenever there is evidence of visible or palpable tisue loss and either gross

distortion or asymmetry of one feature or paired set of features(nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A higher

evaluation of 50% is not warranted unless the record shows visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features(nose,chin,forehead,eyes(

includind eyelids), ears (auricles),cheeks, lips), or; with four or five characteristics of disfigurement. The 8 characteristics of disfigurement are: scar 5 or more inches (13 or more cm.) in length; scar

at least one-quarter inch (0.6 cm.) wide at widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo-or hyper-pigmented in an area exceeding

six square inches (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.)

You filed for an increase in your service connected scar, below right eye on 6-19-09. We sent duty to assist letter to you 7-29-09. You did not respond.

On VA exam dated 8-13-09 you reported no current complaints of pain, skin breakdown or other problems. You stated that the actual presence of the scar is frustrating and bothersome to you. You stated

that you are often asked questions about the scar due to its presence on your face. Physical exam including pictures showed the scar is located approximately three-fourths inches underneath the right eye

at the level of the outer canthus. The scar measures 1.5 centimeters in length and 1 centimeter in width at the widest part, with an area of 0.75. It is a nonlinear scar. The scar resembles a triangular shape

measuring an area of 0.75. There are no objective signs of pain to the scar with examination and palpation. There is no evidence of skin breakdown to the area of the scar. The scar is superficial. There is

no underlying soft tissue damage. There is no limitation of motion or other limitation of function caused by the scar. There is no inflammation or edema. The scar is adherent to underlying tissue. The surface

contour of the scar does have elevation with palpation. There is abnormal texture of the skin noted with irregularity and shiny appearances measuring approximately 1.5 square centimeters. There is

hypopigmentation noted to the color of the scar when compared to normal area of the skin with an area of 0.75. There is no induration or inflexibility. The face is symmetrical without gross distortion, and

there is no underlying soft tissue loss noted that is visible or palpable. Diagnosis was scar below the right eye post motor vehicle accident in 1995.

Based on findings on VA exam of scar that is adherent to underlying tissue, the surface contour of the scar does have elevation with palpation, and the scar measures 1 centimeter at the widest part, we have

increased the evaluation of scar, below right eye to 30% percent disabling. A higher evaluation is not warranted because objective findings do not meet the criteria for a higher evaluation.

We have assigned an effective date of 6-19-09 the date of your claim for increase.

I did not submit new evidence i just asked for an increase can i get my effective date changed to 1998

[derrell]

Could someone help i did not appeal va first exam of 0% in 95. 2009 asked for increase without new information recieved 30% with same evidence from 1995 can i cue for original effective date 1998.

[broncovet]

I will give it a try.

If I understand what you posted (its harder for me..I am from a different generation where we use capital letters and periods to make complete sentences and I dont "get" the new "textwriting"), the RO evaluated you basically differently for the same scar. I am making an assumption here, that the scar did not "get worse"..please correct me if that is wrong.

You would need to file a CUE motion for an EED, since it appears you have passed the one year "normal" appeal period.

First of all, you need to carefully review your entire C file looking for errors that rise to the CUE level. They have to be "outcome determanitive"...it does not work if they forgot to dot an I, or even if they forgot to send you VCAA notices...these errors are not grounds for CUE, so save yourself the trouble and dont file on that basis. The errors have to be "undebatable" BUT (and this is a big but)...the VA still has to sympathetically develop your claim to its optimum and it is CUe error if they dont. Other things that are NOT CUE:

The regulations also provide examples of legal arguments that cannot qualify as CUE, namely, a medical diagnosis relied upon in a previous BVA denial was incorrect in light of a medical diagnosis rendered after the BVA denial,70 a failure to fulfill the duty to assist,71 and a disagreement as to how the facts were weighed or evaluated by the BVA.72 Furthermore, a change in the interpretation of a statute or regulation occurring after the BVA decision under attack cannot constitute CUE.73 But here is what CAN be CUE: The Federal Circuit has held that it may be CUE for the VA to fail to �give a sympathetic reading to the veteran�s filings by �determining all potential claims raised by the evidence, applying all relevant laws and regulations.�� A must give a sympathetic reading to a veteran�s filings.81 The CAVC held that whether the veteran�s filings merited an earlier effective date was a factual question and remanded for readjudication.82 As such, the Federal Circuit confirmed that it may be CUE for the VA to fail to liberally construe filings.

Notably, in a precedent opinion of the General Counsel of the VA, the General Counsel agrees that this error can potentially qualify as CUE, but states that in order to grant a CUE claim of this type, the VA must conclude that (1) it is obvious or undebatable that, when prior filings are construed in the claimant�s favor, the pleadings constitute an earlier claim for a benefit that was subsequently awarded by the VA; and (2) the VA�s failure to recognize that claim manifestly affected the subsequent award of benefits.83 This policy appears to be at odds with the Federal Circuit decision on the matter, which did not indicate that it must be �obvious or undebatable� that prior filings, when liberally construed, show that a claim for benefits was previously filed. Indeed, the Federal Circuit held that �the veteran is not required to show . . . that the �evidence undebatably established that an informal claim for secondary service connection was filed prior to 1994�� and that any ��ambiguity� . . . in [the veteran�s] earlier pleadings should be resolved in favor of the veteran.�84 Accordingly, even though it is a CUE claim, all that the VA must determine in order to satisfy the first question is that when prior filings are liberally construed in the claimant�s favor, the pleadings constitute an earlier claim for a benefit that was subsequently awarded.

The CAVC and Federal Circuit have held that it is CUE to fail to apply applicable regulations. In Olson, Ternus v. Brown,85 and Sorakubo v. Principi,86 the CAVC held that final BVA decisions reducing disability ratings contained CUE because the VA failed to follow the regulations that govern whether an existing disability rating should be reduced, namely, 38 C.F.R. �� 3.343 and 3.344.87

IMHO, you can argue that the VA used a defective C and P exam (but you are going to have to specify what is wrong with it...why did the VA rate you at zero percent with it? Your two best chances at CUE, are 1. The VA failed to sympathetically read your claim and develop it to its optimum. and 2. IT is CUE error for the VA to contradict itself. YOur scar cant be rated at zero percent and also at 30 percent if it did not get worse. JMHO.

[Guest]

Unless you can prove by medical evidence the exam you had on 8-13-09 may kill any type of earlier effective date. VA will use the fact that you had a new exam, which is the evidence they used to increase your disability.

[derrell]

Broncovet Thanks.

It was the same scar the scar did not get worse. The first evaluation stated the scar was larger than it actually was. The second evaluation stated almost the same as the first

except for accurate measurements that are smaller than the first evaluation. I did not submit new evidence i just asked for an increase. I recieved my c-files and records and

i posted word for word the first decion from the VA at 0%. I posted the second decision word for word under the first ruling i recieved 30% with the same evidence and smaller

dimensions of the scar. I dont understand how could i have not recieved any compensation in 1995. All the evidence is under Derrell first decision and second.

[broncovet]

If the scars did not get worse (and you might need an IMO/IME for that) then the RO decision conflict with each other.

If the decisions are in conflict, and it appears they are, then that would have to be CUE, IMHO.

But, you will be "blazing new ground". Just because something has never happened in the past, does not mean it cant happen in the future. There ARE ONE time events.

Acutally, I think that RO decisions have conflicted with themselves at other times, but, maybe, no one ever appealed them establishing a legal "precedent".

Dont be afraid to be a trail blazer!! Maybe your claim will be in a future YEARS VBM stating that, to the effect, it is CUE when RO decisions contradict themselves!!

[broncovet]

Try going to the CAVC decisions page, then search for RO decisions in conflict. I dont know if there is a precedent, but just because there isnt, does not necessarily mean you wont be the first. Other Vets will appreciate you "blazing the trail" for them. I know I do. As CC says, "never give UP".