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

[4mydad]

8 minutes ago, 4mydad said:

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

I apologize that some of the scanned copies are out of order.  The page numbers are at the top for reference.  I am attaching one more below

Rating Decision Footnotes.pdf

[Buck52]

if you have not done so you will need to have this claim reopened.

If the examination report…    and the examiner is from a…    Then …
is insufficient    VHA or a VHA-contracted provider     return the examination as insufficient thru CAPRI 
     VBA-contracted provider    return the examination as insufficient thru CAATS.

Important:  When a VBA-contracted exam is found to be insufficient, it should NOT be resolved by VHA examiners.  VHA examiners can provide an addendum or clarification that is considered to be supplemental—not to remedy an insufficiency or inadequacy.  Additionally, VHA examiners can provide medical opinions not previously requested of the contract examiner.  
needs clarification    VHA or a VHA-contracted provider    call or e-mail the examiner or point of contact at the examination facility, to try and resolve the issue(s) expeditiously, or 
input a medical opinion DBQ request in CAPRI, if the issue(s) is complex or cannot be resolved by phone or e-mail.
     VBA-contracted provider    return the examination as insufficient thru CAATS.
needs resolution of a conflicting opinion or diagnosis    VHA, a VHA-contracted provider, or a VBA-contracted provider    input a medical opinion DBQ request in either CAPRI or CAATS, whichever is applicable.
 

[Buck52]

b.  Handling Insufficient Exams Erroneously Requested     In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court held that if VA provides an examination when developing an SC claim, even if not statutorily obligated to do so

the examination must be adequate, or 
the Veteran must be notified as to why one will not or cannot be provided.

Exception:  If new and material evidence has not been presented and the claim is not considered reopened, then the issue of the adequacy of any new VA medical examination conducted pursuant to 38 U.S.C. 5103A(d) becomes moot, because readjudication of the merits of the claim is barred by statute if VA does not reopen the claim.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).
 

[Buck52]

I'm sorry but I don't see how you can win the EED on this claim based on what you reported.

 the VA obviously had his medical records (smr's) that inpart the medical report and decision was based on.

  medical records are about the only evidence in this case  and medical records are sufficient to render a correct decision.

One of my main reasons this will be denied  is  

''because readjudication of the merits of the claim is barred by statute if VA does not reopen the claim.''  See Woehlaert v. Nicholson, 21 Vet. Ap

[Berta]

On page 2 of the 1983 Rating sheet they combined these  disabilities to a total of 10%-SC

DC 5299 injury to both feet, ankles, and knees.

The evidence would have had to reveal that the rating for the foot condition alone should have been at least 10% in order  for this to be a valid CUE.

Have you checked DC code 5299 in 1983 in any BVA decisions to see if this is the correct code?

 

But the rating sheet download ???? Exhibit M added this statement;

“-Acute and transitory conditions are used to contrast chronic conditions when

discussing medical conditions/symptoms. There is no evidence of acute and

transitory conditions, however there is overwhelming objective evidence of

chronic foot pain over the course of 2 years while in active service.”

 

Is this statement from the VA or is this statement part of the NOD?????

What SC foot rating did the 2016 C & P exam produce?

Have you attached that rating decision to another post here somewhere?

I could not open the Potential CUEs etc wps download.

 

Perhaps the new Saunders V. Wilkie decision would help  as to the Pain statement , if that is in fact a part of the NOD,  but we don’t know yet if it will be applicable to older claims.

 

 

 

[Berta]

OK I found your last post with the rating for the  SC foot condition.

And they did use the SMRs in the 1983 decision so my advice remains the same- the combined 10% SC rating  is the problem and might be a CUE  because the evidence in the SMRs seems to prove this should have been rated at least at 10% SC in 1983.

Maybe 

But I need to find DC code as it stood in 1983....and think about how this CUE should be worded.

On the rating sheet of 1983 ,under # 8 it lists 4 disabilities "combined" to 10% SC.

Since one of them (the foot disability ) has become SC at the highest possible rating for this condition now, then

If the other disabilities listed there can be proven to all be '0' NSC, that leaves 10% for the now SC foot condition.

I need to think about this----- I do feel it can possibly become  a valid CUE claim.

 

 

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