1983 Insufficient Exam

[4mydad]

Hi there,

Does anyone know of a case where a DRO revised an effective date during the appeal period because the original claimed condition was never examined (this was in 1983)? I have submitted a NOD for an earlier effective date because after 5 times of claiming foot injury/plantar fascitiias, my dad was finally awarded max rating.  He originally claimed in 1983 and the examination is completely void of info concerning feet.  That was one of the conditions claimed.  Maybe Berta-can you see the VA calling CUE on itself? (CFR 4.7?)

Any info is appreciated.  

Beth

[Berta]

I agree that it is possible that  the wrong diagnostic code was used.

I have found DC 5276   (1991 decision) and also 5284 ( 1993)in similar claims at the BVA.

If a vet gets a NSC rating that subsequently becomes a SC disability....it is common sense to consider the disability should have been SC all along.My last CUE award was based on that fact.

Diagnostic codes as well as wrong rating %s  are often where the CUE lies, once the disability has become SC.

These are not CUE claims but show what I mean.

I believe 5299 was changed sometime in 2008----need to check that out.

https://www.va.gov/vetapp93/files2/9311981.txt

https://www.va.gov/vetapp14/Files5/1441414.txt

You sure do your HOMEWORK well!

 

)"  However, pes planus (flat foot) should have been used  (5279) since he was diagnosed and treated for the first time while in service.  (not on entry exam, but "foot trouble" marked on separation exam"

I found 5279 was for Morton's disease......did they (VA)change that?

 

Edited April 9, 2018 by Berta

[broncovet]

Probably not.  You have an opportunity to challenge a VA exam, but not after 35 years.  That is well beyond the C and P exam "challenge" window.  

You would have needed to challenge the exam many years earlier, preferably in 1983, or at least soon after you got the RO decision.  It is not "Cue" on the VA when you do not appeal, and do not challenge the exam.  

In fact, the exam is presumed valid absent a challenge from you or your representative.  

However, my suggestion is to take your cfile to a "NOVA" attorney and see if she/he can locate an error that rises to the CUE level.  

A few possibilities are:

1.  The VA did not give you notice of your appeal rights.  The one year period is tolled until such time as the VA DOES give you notice of your appeal rights.  That is, its possible you could appeal this NOW.  Having not read your file, I do not know. 

2.  38 cfr 3.156 b or 3.156 c.  If you submitted "new and material evidence" in the one year appeal period, then that is a "pending claim" and your effective date can go back there (3.156 b)

3.156 c is if there were missing service records that VA could not find but now find that were missing evidence pertinent to your case.  

    There are other possibilities too complex and numerous for me to go into here.  

[mos1833]

Probably not.  You have an opportunity to challenge a VA exam, but not after 35 years.  That is well beyond the C and P exam "challenge" window.  

You would have needed to challenge the exam many years earlier, preferably in 1983, or at least soon after you got the RO decision.  It is not "Cue" on the VA when you do not appeal, and do not challenge the exam.  

In fact, the exam is presumed valid absent a challenge from you or your representative.

bronco- i cant figure out how to attach the file i want you to see. but i think 

O'bryan v. ----  says we didnt have a right to appeal in 1983 ,

i can't quote it all , but it could be worth a read about cue back then ,

thanks bronco for all you do for us , sorry if this is not use-able.

[broncovet]

Good points.  Given the size of the retro potential (from 1983), you should have professional representation, that is, an attorney. (Experienced Nova Attorney).  

I have been answering questions for about 11 years on hadit, and we find over and over and over that you dont win 6 figure retro without an attorney.  

Even Alex Graham, who probably knows more about VA benefits than anyone here (with a possible exception of Eagle eyed Berta), hired an attorney to win his six figure retro settlement.  You see, those GS9's who rate these benefits simply dont have the authority to send someone a 100,000 dollar plus check.  It usually takes a CAVC judge, or, at a minimum, of a BVA judge to do so.  

Knowing what I know, I would not even "think" of using a VSO or pro se on a retro of this amount.  Instead, here is a link to Nova attorney's.  

https://vetadvocates.org/welcome/find-an-attorney/

[Berta]

There have certainly been CUE awards by the BVA going back decades:

"ORDER The December 1970 rating decision, with respect to the denial of service connection for sickle cell disease, was clearly and unmistakably erroneous and service connection for sickle cell disease is granted effective from July 8, 1970."

https://www.va.gov/vetapp10/files4/1032438.txt

"ORDER

The August 1974 RO administrative determination that the 
veteran's motor vehicle accident of May 3, 1973 was due to 
his own willful misconduct is reversed.  "

https://www.va.gov/vetapp08/files2/0814023.txt

And my favorite Myler V Derwinski- 

BUT- you stated:

"Does anyone know of a case where a DRO revised an effective date during the appeal period because the original claimed condition was never examined (this was in 1983)? I have submitted a NOD for an earlier effective date because after 5 times of claiming foot injury/plantar fascitiias, my dad was finally awarded max rating.  He originally claimed in 1983 and the examination is completely void of info concerning feet.  That was one of the conditions claimed.  Maybe Berta-can you see the VA calling CUE on itself? (CFR 4.7?)"

It is always possible there could be CUE potential- if it was at a ratable level in 1983 or in subsequent denials.

Yet it depends on what the denials stated as to their rationale?

Can you scan and  attach their Reasons and Bases for the 1983 denial?  and  include their evidence list?

Also can you scan and attach the initial denial after 1983?

There is not enough here to know if VA did commit a CUE.

The DRO might see a legal error in an older decision but I doubt if a DRO would act on it.

Cover the C file #,name address prior to scanning it all.

 

 

 

[4mydad]

Hi Ms. Berta-

I asked you and the other contributors about this claim 2 years ago when I first received his c-file. You, asknod, and others gave me some great points.  Since then I feel I have a better grasp of what mistakes were made with the decision.  I am attaching the rating decision and the footnotes I sent with the NOD as well as copies of the exam and most recent C&P exam from 2015 that was used in the granted award in 2016.  Please let me know if you have any questions or if I need to send something else.  Thank you sooo much!

1983 Rating Decision.pdf

 

1983 VA Exam_0001.pdf

2016 C & P Exam DSC.pdf

Ratings History.pdf

Potential CUEs throughout Claim History updated.wps

Edited April 9, 2018 by 4mydad
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