failure to adjudicate from a c&p examination

[rita glenn-copeland]

was awarded favorable claim for disability but discovered from the medical examination report 2 years prior to current award, this same issue was brought to the attention of the adjudicator and per the Drs. notation as if to cover himself he wrote  "new medical findings found but per the RO, do not address". and therefore the award received now could have been awarded 2 years ago had the RO adjudicated the new findings or either put it in pending.  What do you think?  How do I go after this as a CUE?

[broncovet]

When did you get the decision awarding benefits??  Was it within a year?  If so, file a nod disputing the effective date, and explain what you posted.  

Dont go after cue if you are in the appeal period.  

If you must do cue, then cite the regulation that they violated.  You can try 38 cfr 3.103 and/or 38 CFR 4.6.  Read those and you will know what I mean. 

[rita glenn-copeland]

11 hours ago, broncovet said:

When did you get the decision awarding benefits??  Was it within a year?  If so, file a nod disputing the effective date, and explain what you posted.  

Dont go after cue if you are in the appeal period.  

If you must do cue, then cite the regulation that they violated.  You can try 38 cfr 3.103 and/or 38 CFR 4.6.  Read those and you will know what I mean. 

it is pass the year mark. so I thought it could fall under cue as I read somewhere that if during a c&p examination, the examiner cites new medical findings, the rating officer should either put the new condition in pending status or he should adjudicate it.  I addressed this before and the response was that it was not a cue but that it was the ro discretion or decision to not address.  Clearly that is an admission of error as it is his obligation to adjudicate new findings so I am looking for the CFR that addresses that.

[broncovet]

You moved into a "grey area".  While the VA "can" infer a claim, there are rules as to when they do it.  Some years ago, they posted stuff on what defines an "informal claim".  There is no longer any such thing as an informal claim, you either apply using the appropriate form, or you dont have a claim.  

When you go to the VA, its "presumed" you are going there for TREATMENT not for benefits.  So, the doc can say stuff like, "gee, it looks like you may have gotten that in service"...but you still dont have a "claim" until you file the applicable form.  Not every Veteran seeks benefits that goes to VAMC, some specifically just want it treated.  I was that way for a long time!!!

Now, if you have been awarded benefits for that issue, you can file a nod disputing the effective date, arguing the doc indicated you had the disorder earlier.  

A complete review of the facts of your case would be necessary to give you great advice.  One issue:  dates of exam.  Was that before informal claims or after?  I dont know that.  There is also an inferred claim..different than informal claims.  

Its "my opinion" that this is probably not cue.  But that does not mean you cant win an eed. 

Its not cue, IMHO for the VA to "not" infer a claim...how are they supposed to know if you are applying for benefits or seeking treatment?  They presume you are not applying for benefits until you file the form or at least file an informal claim.  An informal claim has to be:

1.  In writing. 

2.  Show an intent to file for one or more benefits. 

3.  Specify the benefit sought.  

     If you dont meet all the 3 criteria, above, it isnt an informal claim.  No specific wording is required, but you still must meet the above criteria.  

     Now, its a bit different with tdiu.  If you apply, for example, for PTSD, and you tell the doc you are not working, then its presumed you are seeking an increase for tdiu.   This has to be in writing.  I told the VA doc I was about to become homeless, not working and unable to find a job, and I had an application in.  Back in 2002, under these circumstances, the VA had a duty to send you a 8940 form (TDIU).  If they did not and you got awarded tdiu, then you could argue the effective date was the date you told the doc you were not working and you had applied for other benefits.  In other words, the VA has to infer tdiu if you are seeking benefits and not working...but if they send you the form and you dont fill it out..its on you.  

[Berta]

You might possibly be able to re-open the older claim with "New Evidence"=if in fact you filed for the same disability in the past claim ,that was awarded recently and if, in fact, this constituted New evidence.

"this same issue was brought to the attention of the adjudicator and per the Drs. notation as if to cover himself he wrote  "new medical findings found but per the RO, do not address".

If you can scan and attach that decision maybe we can help more- we might need to see the older decision as well...

Please cover your C file #, name, address prior to scanning it.

 

 

https://www.ecfr.gov/cgi-bin/text-idx?SID=e01889934e16ee0751373657d3b13a6e&mc=true&node=pt38.1.3&rgn=div5#se38.1.3_1156

In part:

"§3.156   New evidence.

New evidence is evidence not previously part of the actual record before agency adjudicators.

(a) New and material evidence. For claims to reopen decided prior to the effective date provided in §19.2(a), the following standards apply. A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending legacy claims not under the modernized review system.New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

(c) Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to: ...etc"

You stated:

"  I addressed this before and the response was that it was not a cue but that it was the ro discretion or decision to not address.  Clearly that is an admission of error as it ".......

If that response was at hadit, did you use a different handle? I could not find any other posts you made here.

We really don't have enough info to help, because it is the wordings of decisions themselves from VAROs that determine what else the veteran can consider, if past decisions are wrong.

I ave seen here whereby VARO actually added a disability to the claim and then adjudicated it- but that does not happen often, as most often they must have a formal specific claim before they will adjudicate it.

Edited October 25, 2019 by Berta

[bigoc]

Would it not be assumed the veteran is seeking benefits and not treatment if the exam is for a C&P?  

I had something like this happen and I'm still working on it.  The exam in question for me was a VA requested future exam.  Kinda like the "don't poke the bear" if you got something theory of which I don't believe in.  Only this time for me it was the VA that poked themselves with identifying a new joint from an already SC arthritis condition.

I'm not well versed in this area but I hope others are able to help you understand if there are open issues with this.

I think some VA examiners go to such lengths to disprove something, they open the door to others.

[broncovet]

BigOc

   Probably not.  While the VA "can" infer this claim, its unclear if they are required to infer said claim.  That is, they have "discretion as to whether or not they infer a claim".    When you apply for benefits you "specify the  benefit sought".  

Currently, no application, you have not filed for benefits.  No informal claims, that ship has sailed.  You have to apply on the applicable form, until you do, its assumed you are not seeking compensation for "that" issue.  You can not compel the VA do do something which is "discretionary". 

As I explained, since you did not give the date of decision, or c and p exam, I dont know if you qualified under the less restrictive "informal" claim program.  I did not look up the date when this was eliminated, and probably wont do so until/unless you tell me the date of your c and p exam or decision.