Old C&P for foot not decided, possible CUE

[Andyman73]

Hey Hadit, got an interesting question for ya'll.

I was going through my C-file for STRs for another claim and came across a hand written letter requesting a SC C&P for my L foot.  It is dated Feb. 2006.  I was already SC for L ankle @‌ 10%. from 11-98.  Then there were the pages from a rather extensive C&P exam covering my foot.

Then I saw the decision letter dated to May of 2006 with no mention of my foot, just that the current levels of my SCDs remain unchanged.

I am now 30% SC for my feet, as of July 2015.

Would this be a CUE or an EED issue, or some other type of gross negligence in my claim servicing?

Please give me your feedback, thanks.

Semper Fi.

Andyman

[broncovet]

I was just reading something on this very issue.   Apparently, the BOard does not have jurisdiction on an issue UNTIL the Veteran gives him jurisdiction by timely filing of a NOD on that issue.   No NOD, no BVA.  

This same question affects me personally, because I applied for IU, the RO did not adjuticate (IU) , and the BVA did not notice it either and also did not adjuticate it.  Instead, they adjuticated ONLY hearing loss.  

The CAVC is not a trier of facts.  That job belongs to the board, and the CAVC will not change any of the "factual findings" made by the BVA>  The CAVC reviews the Board decisions but can not "overturn" factcual findings made by the Board.   They must be overturned by the CAVC on a legal error, not a fact error.   A remand, however, gives the claimant the opportunity to submit new evidence, and that new evidence can result in a different set of factual deteriminations.  

The Federal Circuit ruled in Maggitt v. West that the CAVC has jurisdicition to consider any issue advanced in suppor of the appeal of a BVA denial of benefits including that the claimant raises for the first time at the CAVC level.   

However, this means the CAVC CAN consider issues raised for the first time, but it does not mean the CAVC MUST consider issues raised the first time at CAVC. 

After the Maggit ruling, the US Supreme court in Sims vs Apfel similarly ruled that a social security claimant (this suggests it will also apply to Veterans) should not be required to raise an issue prior to CAVC consideration. 

 

In a nutshell, if you apply at the RO, and the RO ignores you, and the BVA wont adjuticate it because it does not have jurisdiction, the proper remedy is to file a Writ of Mandamus at the CAVC to compel the RO to issue a decision.  

 

Its a real problem for Veterans when the VARO simply ignores, shreds, or loses our claims.  

[Andyman73]

I will post the original C&P exam and the responding decision letter as soon as I get a chance.  I would have done when I first posted this, but I went over the time limit of my online time allotment, according to my CEO(wife).

 

[Andyman73]

I posted my info on another thread without remembering this one.  It's under cue or need for old foot exam.   So please check it out and let me know what you think.  Thanks,

Andyman

[Buck52]

So I guessing that NOD opens the doors so to speak? for the veteran to state more on his case?  if that NOD gives the VA Jurisdiction?

Andman I'm not sure it would be a CUE but more toward your EED.

 

JMO

...........Buck

[pwrslm]

Isn't there another precedent about when the RO ignores a claim and its not appealed its deemed denied?