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]

Hi Ms. Berta-

The Rating Decision letter states that injury to both feet, ankles, and knees are not considered SC.  (checked box)  I think they only gave him a combined rating of 10% for the SFW scar of the chest and left thigh.  (rating decision cont sheet)

He claimed injury to both feet.  The VA used 5299. (his lay evidence on the request for compensation was constant pain in feet)  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).  This is all over the SMR.  They even mention being diagnosed with flat foot.  Bilateral Acquired pes planus is a min rating of 30%.  I feel that he should have received that considering his SMR and that it was documented in the rating decision.  

Claim History Summary and 2016 Rating Decision.pdf

[4mydad]

 I think 5276 should have been used because his lay evidence states constant pain in feet.  When the rater looked into SMR is states that he was "diagnosed with pes planus"  Since that is a specific code used for rating at that time, I think they should have assumed that what was because of his constant pain in feet-rather than vague foot injury.  

His denial letter states . . . "he complained of his feet going flat on 7-16-68 while in basic training. He was followed frequently for complaints of foot pain without any actual pathology being noted.  There are several diagnosis such as stress fractures of the feet but non of these were supported by xray.  We finally see a diagnosis of flat feet in 10/68 . . . "

The rater noted that he was diagnosed with flat feet in service.  Seems like that would be obvious assigned rating.  (to anyone outside of the VA I guess-ugh.)

[Berta]

These citations might bolster your argument:

"The assignment of a particular diagnostic code to evaluate a 
disability is dependent on the facts of a particular case.  
See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One 
diagnostic code may be more appropriate than another based 
on such factors as an individual's relevant medical history, 
the diagnosis, and demonstrated symptomatology.  Any change 
in a diagnostic code by a VA adjudicator must be 
specifically explained.  See Pernorio v. Derwinski, 2 Vet. 
App. 625, 629 (1992).  In this case, the Board has ...."

source : https://www.va.gov/vetapp10/files2/1012950.txt

The BVA adds this_

  Therefore, 
"Diagnostic Code 5299 is used by the Board to identify an 
unlisted skeletal injury or motion loss.  The Veteran's 
disability will then be rated under the most nearly 
analogous diagnostic criteria reflecting similar anatomical 
localization, symptomatology, and functions affected, as 
discussed in full below.  38 C.F.R. § 4.20 (2009). " 

[4mydad]

I think they are denying his claim because his exam did not show evidence of foot problems but they never examined them!  So frustrating!

Statues.pdf

[4mydad]

 

Oops.  That was a typo.  I meant to put 5276 not 5279  (I did it correctly on the NOD though-lol)

[4mydad]

Also, I remember looking up the pes planus (flatfoot) diagnostic code used in 1983.  It was the same.  Now, I can't remember where I found that . .. but it seems like it was effective in the 1950s??  I think 5276 has remained the code since.