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Possible CUE?

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Sailorman

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On appeal, the BVA awarded me service connection for my left ankle, right ankle, and lower back strain.  Question, when they awarded me conditions was the VA required to review my other disables such as my right knee for an increase? The reason I ask, I am currently rated 10 percent for right knee disability but the regulations state if a veteran has multiply joints infected they will be rated 20 percent or higher. 

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They usually only review what disabilities you have specifically claimed.

Did your medical evidence reveal all of these "multiple joints".... as related to each other?

Do you have the citation for that regulation?

It would help if you can scan and attach here the rating decision. Cover C file # prior to scanning it.

 

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Thank you Berta.  Yes, my medical evidence does reveal multiple joint disability.  To include, both ankles, and both knee.  The only citation I have is what the VA cited in their decision.  In their decision that a 20 percent evaluation was not warranted unless X-ray evidence shows involvement of two or more major joints OR two or more minor joints groups with occasional incapacitating exacerbations. 

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I'm guessing Mr. Sailorman hadn't filed for it when he went to appeal, Berta. If he doesn't vocalize it in the original claim, he cannot ask the BVA VLJ to adjudicate it in the first instance without AOJ review in order to maintain the "one decision on appeal" codicil. By law, you cannot ask for a waiver of review if you've never even had an original VARO adjudication of the claim. Just because a VLJ shines a light on what appears to be an informal claim, they are somewhat powerless to do more than remand it back to the RO for a more detailed examination and possible grant (which VA promptly ignores). Always remember, if it's new, BVA can't touch it. If it's a request for an increase they can address it. VA jurisprudence has a cadence like Haiku and cannot be accelerated or skip steps. A classic example is that you can never raise a new allegation or theory as to why VA hosed you at the CAVC. You have to arrive with one theory or one story. It cannot metamorphose from the BVA version. 

I'm beginning to think someday VA will blow an ass gasket and come down on Theresa and all of us like a cheap new polyester suit. We'll be hounded into ceasing teaching the path to success. The new Fully Developed Appeal  bill in the House is approaching  with an eye towards giving our BVA appeals the same Bum's Rush through a kangaroo court. 

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The Board has no jurisdiction over a particular issue until/unless the Veteran gives the board jurisdiction with a timely filed NOD (which now has to be on the NOD form).  As already mentioned, the Veteran can file a "waiver of RO consideration", which I understand is "automatic" now even without the form submitted.  

As an example, the RO recently sent me 4 RO decisions within a month, and I filed "One" NOD form and mentioned all decisions.  NO GO!  You have to have a seperate NOD form for each decision.  Even tho I included the issues in the I9, the Board never addressed any issues "except" those in the formal NOD form.  

(Once a Veteran files a 21-526, he need not refile that form for each benefit.  Only one 21-526 is required, not a seperate one for each issue)

Edited by broncovet
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Just out of curiosity on this topic, if you specifically state that you disagree with the decision/SOC and I don't know include a statement to the extent of prior decisions and any there after (SOC, SSOC) with oh something such as a waiver of review form, does a waiver of review form have to applied to each individual issue or does it blanket all of the pending appeals?

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