§ 4.7 Higher of two evaluations and TMJ ROM rating

[Vync]

The situation involves two C&P exams for TMJ ROM ratings. The first was lost, but I was brought back a few weeks later and I was awarded 10%. 15 years later, the initial exam was found in my c-file and would have granted 30%. 

Anyone have any idea how they would determine which exam more nearly approximates the criteria for ROM ratings? There are no other dental exams within a year prior or after, so which one would they probably use?

Quote

§ 4.7 Higher of two evaluations.
Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.
[1998]

 

[GBArmy]

Vync, it looks like the right regulation, BUT, you know they are going to do. They will deny  for sure. The VA isn't going to just give you an increase from 10 to 3). If they do, they will have to award the EED back 15 years. They for sure will try to low ball the effective date too.

typo should be 30% not 3)

[vetquest]

Vync, I personally would ask for a reopen under 3.156 New and material evidence.  I might also add 3.159 Duty to Assist, in that they lost your records and did not recover them from your c-file.

[Vync]

2 hours ago, GBArmy said:

Vync, it looks like the right regulation, BUT, you know they are going to do. They will deny  for sure. The VA isn't going to just give you an increase from 10 to 3). If they do, they will have to award the EED back 15 years. They for sure will try to low ball the effective date too.

typo should be 30% not 3)

I'm expecting the VA to respond like that. Per Russell v. Principi and Bell v. Derwinski, documents generated by the VA prior to the decision date are considered to be part of the record, even if they are not in front of the AOJ when the decision is made.

I am going to submit this as a supplemental claim, but it might end up becoming a CUE. Here's the catch. The same examiner performed both exams. In the second exam, he states clearly that the initial exam material was replaced, hence the second exam. How often does the VA admit in writing that they screwed up. I found the initial exam notes in my c-file. The second exam is also suspect because they failed to apply DeLuca. That alone could push the 10% to 20% even if they try to dismiss the initial exam.

[GBArmy]

I'm just throwing this against the wall. I don't know a lot about CUE's, but if it really looks they will lose on CUE, why don't you just do it rather than appeal? They might just cave; based on comments I've seen on here, don't the RO's hate the CUE's more than anything? Like it shows up in some super metric that they don't want. Or, and I'm not much of an advocate for HLR or "reconsideration", but if you were to talk to a high level RO guy, maybe they would just go ahead and give you what you need without you submitting the CUE. I know; I'm probably nieve, but I wonder if it would be worth the try. You can always submit the CUE at anytime I understand. There are a lot more smarter guys than me on this one that can advise.

[Vync]

4 hours ago, vetquest said:

Vync, I personally would ask for a reopen under 3.156 New and material evidence.  I might also add 3.159 Duty to Assist, in that they lost your records and did not recover them from your c-file.

That might work. I just won't mention the Russell and Bell rulings

[Vync]

@GBArmy This one could probably go either way (CUE or NME). It is one of those really odd situations.