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Odds Of Success

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michael37

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I put the following in another post but think it is notable enough to have it show on its own. It is very lengthy but if you sift through it you will get an idea what your odds are by VARO and also between DRO and traditional appeal.

http://www.gao.gov/assets/590/585481.html

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  • HadIt.com Elder

New evidence can be an IMO/IME, buddy statement, or any new evidence the VA might have. I did use new evidence with DRO Hearings, but not always. I won almost every time. I waited about 9 months to a year each time. I don't think the BVA is that wonderful. I lost there twice recently.

John

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Remember this , too. The BVA say they have done away with the Extraordinary Awards Program.(EAP) after it was declared illegal. Nevertheless, they have an unwritten rule that they aren't going to part with large settlements without testing your mettle and desire to fight for it. Thinking foolishly that this might induce them to grant my EED back to 1994, I went the DRO route after my win in 2008. A year later, even with 8 1/2 X 11 glossies and a power point presentation, the RO refused to budge. It would have been a Fenderson culminating in about 60% from 94. They fought me tooth and nail on every contention to the point of having three different arguments for why they did what they did in 94. Finally, at the Court, they changed their argument. Sometimes you are not going to roll these guys at the RO level no matter how good your argument. There are many from the Miss Peggy Pink Site who contend that VA follows the Grant when you can. Deny if you must. theory. I don't buy it. Once they make up their mind to deny, it becomes their mantra. I won an increase from 10% to 40% for Porphyria Cutanea Tarda for phlebotomies on a DRO but they still denied the 94 date. They were wrong and they knew it but they stood their ground. I like the philosophy of "on any given day, at the right RO, in the best of circumstances, you can win it." It all depends on the luck of the draw that you get a DRO with intelligence. Is there such an item at the RO? That's debatable.

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Fenderson, as ASKNOD refers to, is discussed on page 113 of his great book, “Vetarans Administration Claims : What You Need to Know to be Successful”

Fenderson is established VA Case law , and the “Fenderson” rating is using the principle of staged ratings for a disability that has increased in it's disabling affects, over the claimant's claims lifetime.

I mean ,you filed an initial claim in 2006 and it wasn't decided until 2010 and the VA possibly failed to consider all evidence of record that showed the disability ,at one level when you filed it, has reached a higher level, during the long claims process itself. The C & P results they used might have well been outdated by the time the claim was rated .

Fenderson v. West, 12 Vet. App. 119, 125-26 (1999)

Here is an example of what ASKNOD is educating us all on:

In Part:

“Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999).”

and :

ORDER

Entitlement to higher ratings for a cervical spine disability and a scar as well as a separate rating for a scar is denied.

Entitlement to a separate rating of 10 percent for radiculopathy of the right arm is granted.

Entitlement to a rating in excess of 10 percent for a left ankle disability is denied from August 1, 2007, to October 22, 2008.

Entitlement to a 20 percent rating for a left ankle disability is granted effective from October 23, 2008.

Entitlement to a rating in excess of 10 percent for a right wrist disability is denied.

Entitlement to a rating in excess of 10 percent for a left ulnar nerve laceration as well as separate rating for his scar is denied.

____________________________________________

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp12/Files1/1202993.txt

This is a long read but shows how Fenderson was applied as to the Left ankle disability in Part 2 of the BVA's analysis of that disability.

(BTW this case holds some delicious VA case law references.)

Maybe this case is less confusing:

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp11/Files1/1100625.txt

In Part:

“These findings have been consistent throughout the relevant period. Fenderson, supra. “

Thus:

“ORDER

Entitlement to an initial evaluation of 30 percent, but no greater, is granted for traumatic positional vertigo, subject to the laws and regulations governing the award of monetary benefits.

Effective the day following the Veteran's discharge, entitlement to an initial 10 percent, but no greater, evaluation for left wrist strain with history of scapholunate is granted, subject to the laws and regulations governing the award of monetary benefits.

Entitlement to an initial evaluation of 10 percent, but no greater, is warranted for left knee patellofemoral syndrome, subject to the laws and regulations governing the award of monetary benefits. “

ASKNOD ,please correct me here if I messed up the interpretation of a Fenderson Rating.

You gave us great info here as always!

Edited by Berta
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Vets confuse one thing on Fenderson regularly. Joe had initial claim(s) that he won, not claims for increase.Therein lies the difference. The varicose veins were not appealed properly on his Form 9 so he had to start over on that. When you file a claim for compensation and win, your disease or injury will invariably worsen over time. Given VA's proclivity to dawdle and take forever to adjudicate them, things go south in the interim. Thus, the ingrown toenail you had at separation proceeded to get worse as you waited for the rating. When issued, it was already outdated and required an upgrade to the next higher % due to toenailopathy. If you are denied and appeal to the BVA, chances are after three years it will again deteriorate. If denied yet again, you may end up at the Big House on Indiana Ave. NW with an amputated toe still awaiting an increase from 10% to 20% even though you now are eligible for 40% and SMC K.

If you file for an increase on an existing rating, you can only get a retro rating up to a year prior to your filing-but only if you can support it with medical records. This retroactive stricture does not exist in an original claim. Fenderson ratings become cash cows where VA screwed up a claim and let it lie fallow like mine for 13 years (now 19). CUE claims are another big source of Fendersons as well. VASEC tried mightily in 2004(?) to throw out a Fenderson on an old CUE saying Joe's jurisprudence was not in existence when the CUE occurred. The Feds disagreed and he got his big ticket. I forget the case but it was a daisy and set the precedence for Fenderson's application in CUE claims predating his case.

Fenderson is only applicable during that golden first year following your win. If you do not file a NOD disagreeing with your award, it is assumed they got it right and you agreed with them. You cannot return several years later and say they screwed up. Oddly, a Fenderson can go on and on for a long time. I see one on my horizon. Next month, when OGC agrees to my 1994 date at ?% on DC 7345 (the old hepatitis rating) I can medically prove that I am entitled to 20%. VA will try to lowball with 10 or 0. That will be the beginning. It will go on until they grant the 20%. At some point between 1994 and 2000, I became more ill. My earnings went down dramatically. I didn't spend a lot of time at the doctor's office and the records do not conclusively prove it. Your SSI records are very valuable if your medical evidence is scarce. Since VA granted 100% in 2007, I will need to come up with something to prove that I am entitled to more than the initial 20% as I progress to the 100%. I will lean heavily on the SSI to prove it. My serious medical records proof begins in late 2006. It will be a prolonged Fenderson because each cave in by VA that is less than what I want or deserve will entail a new NOD with their rating decision. This will start the appellate process all over again. To throw in a monkey wrench, the rating code changed in July 2001 when they inaugurated DC 7354 for HCV. The criteria is subtly different from the old (DC 7345) to the new and may create a contretemps where they have to jump up to 40-60%. They cannot go backwards as it is forbidden.What's more, it is also prohibited because by then I'll have a substantially protected rating older than 5 years with no change for the better. By the time Bob puts paid to this, it'll be over 20 years old. He can finally have his mid-life crisis a little late and get that new Corvette he's been dreaming of since his last divorce.

If you think my case is extreme, consider one of a gal I helped to improve her win on a CUE all the way back to 1979. http://asknod.wordpress.com/2012/08/25/cue-a-rare-error/. She started by researching at my site and asking questions way back when. When she won, she was stunned and came to me worried. They tried to pawn off a 0% on her! VA begrudgingly granted a 10% to the present day (2007 filing) and then started taking it back for monies paid at separation. She is busy a) filing the NOD and b) collating a wealth of private medical records she's been collecting to buttress a well-orchestrated Fenderson to the present. She may be on her deathbed before she reaches fruition with these yokels. It will definitely be the Fenderson to end all Fendersons when she's done. Or....? VA may cave in (which I doubt). I referred the lady to our mutual Michigan friend LawBob Squarepants as I suspect she needs his able talents to prevent VA from rolling her like a drunken sailor. She had no idea Joe Fenderson even existed let alone his importance to her in the scheme of VA law.

To understand Fenderson, you have to go back to AB v. Brown (95?) where they held that a Vet seeks the highest rating possible when he files. Anything less would be uncivilized. VA will make no effort to ascertain if you deserve more and often ignores the evidence before them to grasp at a lower rating. But Vets know that part, right? Check this one out:http://asknod.wordpress.com/2011/09/27/cavc-fenderson-v-west-1999-staged-ratings/

I love this subject. What could be more fun that bearding the lion in his own den? Why, a Fenderson so you can do it repeatedly for years and years. It also proves God comprhends judicial humor.

More anon.

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  • HadIt.com Elder

If you are claiming 20-30 of retro nobody at the VA is going to want to grant that claim. I look at Cushman and I see where he won in federal court but still has not collected his money. He has been trying for many years and as soon as the claim is back in the VA system it stalls.

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