Rating Decision

[syne7 40]

Hello, I separated from active duty on 5/10/1997.  In my rating decision  on 8/5/1998 the VARO/letter stated the following:

1.  The claim for service connection was received on August 8, 1997; therefore, service connection is established effective the day following separation from active service.

2.   Service connection for restrictive airway disease is granted with an evaluation of 10 percent effective May 11, 1998.

3.  Service connection for chronic left ankle sprain is granted with an evaluation of 0 percent effective May 11, 1998.

These dates should be May 11, 1997, not 1998.  The VA did not start paying me until 11/5/1998 according to ebenefits.

Should the effective dates be May 11, 1997?  The day after I was discharged?  As a CUE can I get these dates adjusted and back pay for the 10%?

 

Later in my letter it says, "There was no evidence of limited range of motion in left ankle to warrant a compensable evaluation."

However, in the medical records there were two instances that measured the dorsiflexion as less than normal.

1. SMR show an entry with 0 degrees of dorsiflexion and 35 degrees of plantarflexion.

2. The C&P Examiner found 10 degrees of dorsiflexion and then say "Normal range of motion."

Normal range of motion is defined at 0 - 20 degrees by .”   38 C.F.R. § 4.71. 

My questions are:

1. Do I have a CUE for dates and can I get back paid to 5/11/97 vs. 5/11/98 or 11/5/98?

2. Since my entrance exam showed normal, is there CUE with an examiner measuring me at 50% range of motion, and then saying "Normal range of motion" with out a rationale?  Also since the decision says there is no evidence of limited range of motion, and there are in the medical records.  Or will this fall under the "how someone interprets a result" is not a CUE. 

My understanding is that with a "normal" entrance exam, my normal range of motion should be established at 0-20 degrees of dorsflexion.  Someone measuring me at 50% and declaring that "normal range of motion" should be a clear and unmistakable error.  As many decisions rate 10 degrees of dorsiflexion at 10% or 20%.  This would certainly manifest a different outcome from "0".

Am I smoking my own fumes, or is this argument likely to fly?

Lastly, I could argue that my ankle should have been rated under Anklyses, which would be 30%.  However, I suspect that might fail under "descretion.".

 

 

 

Edited April 22, 2016 by syne7

[Berta 3,018]

I will let others opine on the ratings...

"Hello, I separated from active duty on 5/10/1997.  In my rating decision  on 8/5/1998 the VARO/letter stated the following:

1.  The claim for service connection was received on August 8, 1997; therefore, service connection is established effective the day following separation from active service."

Yes the EED appears to be  a CUE...unless they gave you some other reason for the date entitlement arose....

The day after your service is obviously May 11, 1997.

Plenty of CUE info here and templates.

Tell them they committed CUE in that (date) and under auspices of 38 USC 5109A ,you want it corrected.

State it is a violation of 38 CFR 4.6 and also the regs that state your EED should be the day after your discharge and cite those regs as well and enclose copies of these regs with your CUE claim.

"Under 38 C.F.R. § 3.400(b)(2)(i), the effective date for a
grant of direct service connection will be the day following
separation from active service or the date entitlement arose
if the claim is received within one year after separation
from service.  Otherwise, the effective date is the date of
receipt of claim, or date entitlement arose, whichever is
later.  Under 38 C.F.R. § 3.400(b)(2)(ii), the effective date
for presumptive service connection will be the date
entitlement arose, if a claim is received within one year
after separation from active service.  Otherwise, the
effective date will be the date of receipt of the claim, or
the date entitlement arose, whichever is later.

A specific claim in the form prescribed by the Secretary must
be filed in order for benefits to be paid to any individual
under the laws administered by VA.  See 38 U.S.C.A. §
5101(a); 38 C.F.R. § 3.151."

 

Edited April 23, 2016 by Berta

[pete992 697]

SYNE7, IMHO the best thing you can do is to seek out an attorney that is familiar with VA and filing a claim for EED and CUE.  CUE claims are so tricky and to fully answer your questions someone would need to look at all of your records.  I wish I could give a better answer and maybe someone else may chime in but I will tell you from my own experience VA will fight you all the way up to CAVC and try to get you to miss a suspense date or they will review all your evidence and state that one thing is missing so your evidence does not meet the CUE level.

[syne7 40]

Berta & Pete,

Thank. 

Pete,

I agree, however, most attorney's don't seem interested unless you have 100% TDIU with large residuals, LOL. 

If anyone has a recommendation, please PM me or reply with a recommendation.

[Berta 3,018]

I think you should go over your past C & P exams very carefully and the older decision to see if they based the EED on Date Entitlement Arose, because of a C & P report.

It might still warrant a CUE claim, but I went round and round on an EED, only a difference of a few months, in 1988,  with NVLSP in my AO IHD death claim because it appeared a C & P I never knew happened for his PTSD in 1988 and the doc noted his heart disease ,which was part of my FTCA settlement because they had never diagnosed it or treated it....I still feel that decision is wrong and am going to CUE it. ..but on another

basis.

Then again the Date Entitlement arose for my husband's 100% P & T posthumous award, for PTSD, was due to the SSDI date for PTSD.

SSDI was based solely on his VA med recs, VA said they could not obtain the SSDI records and they were full of s--T. After I got on the phone with SSA in Baltimore, the records (which VA had never requested although they had his release form signed) were finally in the mail. He died before they made the 100% P & T award.

I posted those regs here available under a search.... it added an additional year to his filing date for the PTSD higher rating claim.

"Date entitlement arose" can work both against and for the claimant.I am sure much will pop up if you search that term here.

 

 

 

 

Edited April 24, 2016 by Berta