Bva Remand To Ro. Was It Ignored? Does It Make Any Difference?

[propp3]

In 1995 the BVA remanded my appeal for an increase of my service-connected back condition back to the RO for further eval and exam by a VA ortho. It was then rated at 10% disabling(traumatic arthritis). The RO increased my % to 20 and changed to intervertebral disc syndrome,,,explaining the decision in his statement and later supplemental statement of the case. I did not then appeal.

I recently rec'd a copy of that examiner's report to the RO(1995). In the report he also stated that I also complained of left knee pain, opined on how in his opinion knee and back pain were related in that one affects the other, etc. Although he concludes the back pain was in of itself not related directly to the knee(because my history of back injury and vertebral fx, trauma, etc)....he concludes that I had an internal derangement of the left knee.

he also adds that short of an MRI, the etiology and pathology of which can not be adequately explained. In the report he also mentions it is his opinion that an MRI of both by back and knee be performed...but he did not order, instead letting the RO direct the need should he see fit.

The RO never mentions anything about the knee in his later statement/supplemental statement of the case(which increased my back rating). The left knee was not an issue under appeal...

But, in 1992 I'd been denied disability rating for my left knee. I never appeal that denial.

*Is this info new, material, sufficient in any way? I now suffer form moderately severe osteoarthritis of the left knee, as diagnosed at the local VAMC on both x-ray and MRI.

*Is there anything present that could be developed as a CUE? I mean, would my knowledge of the knee opinion by the ortho, if known then by me or my service-rep(DAV) have changed the outcome...or if known by the BVA when the RO returned his decision(on my back).

*Did the RO have any legal duty to inform me of the examiner's findings/opinion/recommendation for an MRI of my left knee, even though that(the left knee) was not an issue of appeal?

In the remand instructions to the RO, the BVA did instruct:

3. The RO should review the examination report and determine if it is adequate for rating purposes and in compliance with this remand. if not, the report should be returned for corrective action.

4. The RO should formally adjudicate service connection for all pathology, other than the service-connected back disorder, found on examination.

Does that mean or imply the RO should have pursued pathology of the knee(an MRI as was recommended, then, but not ord'd)...even though it was the back being examined?

[justrluk]

Without reading the remand order, it looks like they wanted a newer C&P to make a decision. I was given something similar for a remand (new C&P required to make a decision).

[propp3]

Yes...it was basically a new C&P exam of the back, instructed by the BVA in its remand to the RO, to have performed.

what I'm trying to wrap my head around is the fact the ortho...the examiner...also diagnosed the internal derangement of the left knee and recommended an mri to define etiology and pathology...to the RO.

*is that ignoring the BVA's remand instructions? (#4). Does it make any difference, is it any basis foe a CUE?

I'm in the process now of awaiting my SMR, VA case file, collecting the newer med records/exams/etc. Eventually, I'll talk to the DAV about reopening my claim on my left knee

But I don't know if I have enough for a CUE claim.

If I do I'd want to consult with a disability lawyer with experience in the VA process.

If not, then I have to find an ortho who's willing and can do a good nexus exam...and pursue that way, right?

[justrluk]

The nexus is still the *thing* here. Regardless of the VA machinations, if you can get a good nexus from a specialist you should be in good shape claim-wise. You can still provide more evidence as your appeal is perfected. Did you waive the RO's review of new evidence? My understanding is that if you do this, you send your info directly to the BVA. I've read quite a bit about CUE, but have never pursued one. Others (Ms. Berta) here have been successful in winning CUE claims.

[propp3]

Update:

The VA basically said that since my knee was not an issue with the 1995 appeal(the back was the issue at appeal)...the exam findings(re: my knee), and the failure of the RO to inform, and consider a rating, is not a CUE. I filed a NOD and asked that the decision be sent to the BVA for appeal...something that will probably take 2-3 years before I hear their denial :-)

I'm now preparing a claim to re-open my knee claim, based upon the exam/dx of that examiner, using the new and material evidence standard.

[Berta]

"I'm now preparing a claim to re-open my knee claim, based upon the exam/dx of that examiner, using the new and material evidence standard."

I think that is your best bet .

"But, in 1992 I'd been denied disability rating for my left knee. I never appeal that denial."

If it appeared at a ratable level on the 1992 rating sheet., that would warrant a CUE claim.

Or even if it did not have at least a 10% rating, in 1992 decision, it is possible that the established medical evidence at time of the 1992 warranted a rating of at least 10%.

That type of CUE becomes difficult but not impossible, if the diagnostic code they use was wrong- causing the incorrect rating.

A CUE cannot be an argument over 'medical' matters but if the RO gave the wrong diagnostic code/and/or ratings, for a disability, in a decision , then it becomes a "legal" matter.

If it is to your detriment ( meaning no retro due to their legal error) that is a valid CUE scenario.

One of the CUEs I won, discussed here in CUE forum, had no rating nor even a diagnostic code on the disability.

That does not happen too often.The disability was specifically mentioned,however, in the decision ( an award letter for DIC).

That meant it had been "established" by medical evidence.

It had been established in a Peer Review report for my FTCA issue, (which suddenly disappeared for many years) but I found it when I ordered a C file copy and this report they said they had never existed,but it was the last document on the bottom of my C file.

It pays to go over C files carefully as well as medical records.

I agree with justrluk that a strong IMO will support the knee claim that you are re-opening.

If you can scan and attach the older Rating sheet and Reasons and Bases here, for the older knee claim, we can help more.

Cover C file # name, address, prior to scanning.

Edited February 22, 2015 by Berta

[broncovet]

Yes, it makes a difference the VA ignored your remand, but it may/may not be enough to get benies. In the end it will depend on your evidence. Still, you are entitled to remand compliance.

There are multiple ways to Cue, as there are other ways to an eed.

First, you need to get a rating for your knee. Its unlikely a Cue will produce a rating, normally cue is used for an earlier effective date, as the key word is "material" error. If the VA forgot to dot an i, that does not mean you will get 100% because the VA forgot to dot an i.

I agree with Berta that new and material evidence (38 cfr 3.156 )may be the best method for you to "reopen" the knee claim and preserve the effective date if you do get rated for it.

I also agree "non compliance with a BVA remand order" is an automatic Cue...that the Veteran is entitlted to compliance with the BVA remand is not debatable..you are, indeed entitled to remand compliance. Its an "automatic cue" in that you deserve the terms of the remand, it does not mean you will get benefits. The VA can pull this fast one:

"Ok, we considered your knee per the VA remand, and we are denying it again."

You do understand, however, when you get a remand, you can submit new evidence and it will be considered as filed with the initial claim. Most remands specifically state you may submit new evidence, but, even if the BVA remand omits that, you are still entitled to this. For advice on an earlier effective date, read this over, thoroughly and see if any of it applies to you.

For best ways to win an eed, go here:

http://www.purplehea...ate ErrorsL.pdf

Edited February 22, 2015 by broncovet