What Is Best Way To Request Secondary Compensation

[toddt]

Was granted 30% for scar as a result of surgery for adenocycstic carcinoma. Surgery was radical neck dissection - which left me with limited range of motion of my right arm (due to shoulder muscles being removed). Attempted to bring this up at my C&P exam but the doctor didn't do anything about it.

Can I request another C&P exam for limited motion? If so, how would that request be made? Or,

do I need to appeal via a NOD stating that the doctor should have tested me for range of motion?

[FormerMember]

Think of your claim as a river (a claimstream). You put the boat in the water (file the claim) and away the current carries you. Important events occur going down the river. A C&P, a denial/partial grant, an appeal to DC for a denied higher rating, etc. occur but it is the same canoe and the same river continuously from start until it is finished. If it is discovered that there were other ingredients (injuries/diseases) present when you put the canoe in, that is the point of remuneration. It does not require a refiling now to backfill any deficiencies. Your claim is alive and malleable to modify to the circumstances. Just because you applied for something does not make you a doctor or a specialist of that condition. This is why there’s Duty to Assist but it is a hollow phrase. Some have filed for MDD and come to discover it was schizophrenia. You are not expected to diagnose yourself. This is why VA is required to assay all the parameters and automatically consider ROM in a separate musculo-skeletal examination in addition to the examination of your skin. This is an old VA trick I've written about. Divide and conquer. What occurred was you filed for cancer residuals. VA took the path of least resistance and focused myopically on the DC 7800-7805 family of scarring in hopes you will not further discuss ROM or your initial (read principal) cancer residuals filing. If you say “Ahem. And the muscles?”, accompanied by the IMO, they have to immediately review for them as well-with your existing claim.

In computerspeak, your claim as filed was a folder. Open the folder and there are multiple documents inside. Some, but perhaps not all, apply to you. VA has chosen not to open the folder but narrowly rule on the skin surface issue which is the most visible. If they address what’s afoot beneath the skin, that would require a new, different investigation and an additional investigation under §4.55-§4.56 of Part Four of the ratings schedule--but not a new claim. If you let this slide, VA will call it “deemed denied” on appeal. This is another old trick. They failed to address it and you did not object. On the other hand, if you attack via IRIS while the claim is still alive and re-assert your initial, implied secondary of muscular damage, they have to take judicial note of it. It may provoke an Administrative Review of the claim and a completely different outcome. Fortunately, with IRIS, you will be able to get some (relatively) instant answers. Not so our fair young Maiden Peggy Sue.

A rush to a NOD is a normal, knee-jerk reaction. In the scheme of things, an IRIS resolution through the back door along with the submission of N&M Evidence at the RO in the early stages of a low ball rating provokes a new (de novo) review (as does a NOD). The beauty of the de novo review of you new evidence (a good IMO) is the potential to resolve this and nip it in the bud. Ask for that new C&P based on photographic and IMO evidence. We all know the long arduous process and inevitable top-sheeting they will employ with a full-blown NOD. As most also must know by now, without earthshattering new evidence unequivocally rebutting the VA Examiner’s prior assessment, a SOC will be inevitable about sixteen months later –and especially if you are un or under-represented. Certainly, it will be a review by a RVSR or DRO but it will not be perused cogently. Sorry Virginia Vet. No VA Santa Claus.

I am fond of bombarding them periodically with high-quality, new and material evidence as it will appear more recently in the .pdf they are now viewing electronically via VBMS (when it’s working). The window of opportunity when the claim is in its initial granting (rather than denial) will garner a quicker response to correct an error than to file the NOD and the inevitable back burner for a year or more.

CUE is for desperate souls for whom there is no other way to revise a prior decision. Having a claim that is open and flowing along allows you to introduce all manner of accessories to it and point back at prior records filed to support when entitlement arose. This is not very well known, but its principle is embodied deeply in 38 CFR §3.156 (b). VA hits that spike strip so frequently they haven’t had time to revise the M-21 and straighten it out. Seriously, go to the CAVC website and use 3.156(b) as a Booean search parameter. There are new cases still in the docket awaiting a judge. That's how I won. New evidence submitted and no response from VA for 14 years until I "refiled"and picked up where they left off in 1994.

(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

Parsed in DickandJanespeak, it means every time they get new evidence from you, they are required to make yet another new decision based on the sum of all the evidence of record (EOR). I guess you can see where I am going with this. The only barrier is the one year suspense date for filing a NOD if you are unable to resolve it amicably in the interim. Remember, as Carlie is so fond of admonishing you, this merely the idea of one person. It is novel but it has been tried and found to be legal. Of course you guys and gals realize VA will not be your BFF if you do this.

Edited February 4, 2014 by asknod

[carlie]

Parsed in DickandJanespeak, it means every time they get new evidence from you, they are required to make yet another new decision based on the sum of all the evidence of record (EOR). I guess you can see where I am going with this. The only barrier is the one year suspense date for filing a NOD if you are unable to resolve it amicably in the interim. Remember, as Carlie is so fond of admonishing you, this merely the idea of one person. It is novel but it has been tried and found to be legal. Of course you guys and gals realize VA will not be your BFF if you do this.

ask,

You lost me on this one ?

[FormerMember]

At the bottom of all your posts:

I am not an attorney or VSO, any advice I provide is strictly my humble opinion
therefore not to be held out for liable.

[TiredCoastie]

Lemme get this straight...if there's an overlooked detail in a claim, before the 1 year deadline to file a NOD, another option is to make an IRIS inquiry and point out the details? Knew that N&ME could be submitted via the RO, but did not realize the power of an IRIS inquiry. I'm not questioning the existance of the option...just thinking through this new option as an effective tool for reopening a claim decision that is not yet finalized. Thanks, Asknod!

[FormerMember]

The IRIS path is unique in that it makes statements by you a judicial matter of record. It becomes part of your C-file. As such, it is an important tool to register a legitimate question with regards to your claim. Once out of Pandora's box, VA is not at liberty to ignore it. It's in printed form and not subject to being "misconstrued" by a 'VA technician' on the 800 number. Additionally, as a paper (or email if you will) record, you have a tracing number and the ability to rebut an obvious error by pointing it out. You can provoke this discussion until VA takes action to get it corrected. The power of 3.156(b) is immense and underutilized as well. It helps to know these things.

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[Berta]

Interesting for sure, and I agree in part, as there could be something ,even in the initial cancer rating, that should have caused them to seek more residuals......and I sure need to digest ASKNODs post here because it sure bears re reading......

I am thinking even a reconsideration request might work...might..... unless VA decides to respond to that ,and appears to be working on the recon request ,while they really intend to piss away the NOD deadline.

IRIS can have some strong effects on the VARO.I filed a CUE Yourself claim that way in 2005 and got a double DRO review.In mere weeks.

I filed it as an IRIS complaint ...they have a drop down box at IRIS for complaints.

Complaints at IRIS get registered at VACO ,so they seem to react to them fast.

I used that tactic in 2011 as well, with fast results ( but I put additional pressure on them, to the point that VA Central called me.The decision I had just received was ludicrous ,illegal ,and was evidence of complete incompetence, and I knew they would cave in. It was fun.

Make sure if you use the IRIS system that you refer them to the initials in the numeric/initial thing in the upper right hand corner of the decision you got.

You might be able to get them to re decide the claim , by sending and highlighting to them, the the last two sentences of 38 CFR 4.1:

CFR › Title 38 › Chapter I › Part 4 › Subpart A › Section 4.1

38 CFR 4.1 - Essentials of evaluative rating.

§ 4.1 Essentials of evaluative rating.

This rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran's disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history.

[41 FR 11292, Mar. 18, 1976]

http://www.law.cornell.edu/cfr/text/38/4.1

BUT I think the original Cancer claim might definitely hold something that should have triggered them to look further for additional residuals.......

Do you still have the rating sheet from them?????

A rating sheet I received in 1998 , with many NSCs on it ( and no C & Ps for most of them...just ballpark ratings....)

was instrumental in my success with a few of my other claims.

I sure do agree with ASKNOD to keep this at the VARO until they do it right......but I would be whipping out everything I ever got from VA at this point

to see if,in fact the past cancer claim award holds some ammo.