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

[jbasser]

Go to the original dcision that gave you a zero percent rating. If the Criteria is the exact same as the current criteria and they made a zero percent rating based on this criteria then you may have a CUE for a misapplication of the title 38 part 4.

This would be a cue since they didnt rate the claim according to the regs and you fit the criteria.

The cue would have to be based on the evidence of record at the time the cue was made. Including the Regs.

JBasser

[halos2]

You wrote the decision was made in 95 and you did not appeal it but put in for a new claim in 09. So therefore you can't request a cue for an earlier date if you never appealed/questioned it and went on your way without doing any activity to seek a higher grant or anything. JMHO only...

Edited March 8, 2011 by halos2

[halos2]

Go to the original dcision that gave you a zero percent rating. If the Criteria is the exact same as the current criteria and they made a zero percent rating based on this criteria then you may have a CUE for a misapplication of the title 38 part 4.

This would be a cue since they didnt rate the claim according to the regs and you fit the criteria.

The cue would have to be based on the evidence of record at the time the cue was made. Including the Regs.

JBasser

(John, Then this would be basically cue's filled for all claims not rated in what we feel we should have been awarded for all claims with the same information they finally award a % for at a later date? So if one files and gets a 10% and does nothing then refiles a few years later and the same type of info is used and one gets 30% you think they could cue to go back to EED? Or is this just with )% claims?...I think I am confused here, and you are so much more versed in this, so could you please explaim it in English terms/versus regulation one.Thanks)

[Guest]

To file a CUE claim the record (C-file) must show;

CUE stands for "Clear and Unmistakable Error" in a past VA decision. It is a collateral attack. CUE claims involve three specific facets:

1. Final decision from VARO or the BVA that was never appealed.

2. It involves an error as to the application of the fact or law that existed when the CUE was made.

3. It manifestly would change the outcome of the past claim if successful.

Keep in mind that the regulation for rating the skin changed between 1995 and 2009.

Edited March 8, 2011 by pete992

[halos2]

To file a CUE claim the record (C-file) must show;

CUE stands for "Clear and Unmistakable Error" in a past VA decision. It is a collateral attack. CUE claims involve three specific facets:

1. Final decision from VARO or the BVA that was never appealed.

2. It involves an error as to the application of the fact or law that existed when the CUE was made.

3. It manifestly would change the outcome of the past claim if successful.

Keep in mind that the regulation for rating the skin changed between 1995 and 2009.

((THANKS PETE 992...been running on about 32 straight hrs and going round and round with this one...man I should have cued earlier some things, but too late now.))