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?

[rita glenn-copeland]

he was awarded the highest rate of disability claim you can get.  The issue is that when they were evaluation him for the smc, the records reflected his loss use of his lower limbs and upper (r) limb but it was upper (r) and (l) along with the other issues qualifying him for the smc-r2.  the medical examiner informed the rater of that.  Again, the award for the smc-r2 was given using the documentation from the medical examiners report that stated new medical findings found but ro instructed the doctor not to evaluate.  I didn't catch that statement until after the award given and back dated to 2015 which is when I put the claim in for the smc-r2.  So, I went back  using the same note from the doctor proving he was like that in 2013 when they awarded him smc o and p.  I know the better thing to do was to within the year of that award was to appeal for earlier effective date. I didn't catch it then.  since it was after the appeal time frame I decided to go after it thru cue as again, I read that the new findings should have at least been put into pending if not adjudicated. Remember, it was  a claim for smc, and all evidence found was needed to determine the level of smc,  The claim was for smc award

[rita glenn-copeland]

I too was told that he could not be awarded anything higher than what he was but, we did. Smc-r2, Not that we want him to be incapacitated at this level but the fact is "he is", and he deserves the award for the sacrifice he made for his country and nothing would ever be enough for his loss or mine and our family.  

[bigoc]

I hope you get compensated for what you have found.  Perhaps breaking this down into the specific case law history would help. 

This seems like an "inferred" issue that I am currently researching.  Inferred(additional finding) vs informal(you asking by means other than the appropriate form).  Informal claims have seen a change and basic elimination.

My take, and like I said I am still researching case law.  An inferred issues which still exists and further has been explained(feb 2019) in more detail by the VA,  also raise the situation of the VA developing the claim in a sympathetic way as apposed adversarial way. 

My interpretation of these issues is that when the VA finds something new in the evaluation of a condition they are supposed to develop new or ancillary benefits found.  You usually need to to help them along in doing what they are supposed to be doing for veterans in various states of mental capacity.  

Change Date

February 28, 2019

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III.iv.6.B.1.a.  Recognizing Issues and Claims When Preparing a Rating Decision

When preparing a rating decision, the decision maker must recognize, develop, clarify, and/or decide all issues and claims, whether they are expressly claimed within scope of an expressly claimed issue, such as complications of the claimed condition, or unclaimed subordinate issues and ancillary benefits, or compensation entitlement issues that arise based on the Department of Veterans Affairs’ (VA’s) review of evidence, such as  reductions of service-connected (SC) disability evaluation clear and unmistakable errors (CUEs) entitlement under the Nehmer stipulation, or competency reviews. Note:  Within-scope issues encompass additional benefits for complications of the claimed condition, including those identified by the rating criteria for that condition in 38 CFR Part 4, VA Schedule for Rating Disabilities, and any ancillary benefit(s) or other unclaimed subordinate issues not expressly raised by the claimant that are related and arise as a result of the adjudication of a claimed issue.  References:  For more information on the definition of a substantially complete application, see M21-1, Part I, 1.A.4.f considering subordinate issues and ancillary benefits, see M21-1, Part III, Subpart iv, 6.B.2 issues to consider when deciding claims for disability compensation, see M21-1, Part IV, Subpart ii, 2.A.1 issues within scope of a claim, see  M21-1, Part III, Subpart iv, 6.B.1.c, and 38 CFR 3.155(d)(2) ancillary benefits, see 38 CFR 3.155(d)(2), and  M21-1, Part IX, Subpart i, and compensation entitlement issues that arise based on VA’s review of evidence, see M21-1, Part III, Subpart iv, 6.B.1.f.

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III.iv.6.B.1.b.  Definition and Example:  Expressly Claimed Issue

An expressly claimed issue is defined as when a disability and the benefit sought are both explicitly identified on a standardized VA form.    Example:  Epilepsy is listed as a claimed disability on VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits.   References:  For more information on how to file a claim, see 38 CFR 3.155 standardized VA forms, see M21-1, Part III, Subpart ii, 2.B.1.b, and status of claims, see 38 CFR 3.160.

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III.iv.6.B.1.c.  Definition and Example: Issues Within Scope

An issue within scope is one that is not explicitly identified by the claimant on a one of the forms listed in M21-1, Part III, Subpart ii, 2.B.1.b, but is identified upon review of the claims folder during the decision-making process for an expressly claimed issue.  An issue within scope arises based on a sympathetic reading of the claimant’s statements and/or evidence of record.  It encompasses such things as entitlement to any ancillary benefits that arise as a result of the adjudication decision, and additional benefits for complications of an expressly claimed condition. Note:  VA does not expect, nor does the law require, claimants to articulate with medical precision the disabilities for which compensation is sought.  Veterans regularly claim disability compensation for a specific clinical entity and ultimately establish service connection (SC) for a similar, but clinically distinct, condition.   Example 1:  VA may, in developing a Veteran’s claim for SC for sinusitis, provide the Veteran with an examination that renders a diagnosis of a similar condition, such as allergic rhinitis, rather than sinusitis.    Result:  In the event that the examination is otherwise sufficient for rating purposes and the condition is associated with service, the decision maker awards SC for allergic rhinitis as within the scope of the claim for sinusitis.   Example 2:  The Veteran’s VA examination shows that his SC) posttraumatic stress disorder (PTSD) warrants an increase to a 70-percent evaluation at the examination.  In addition, the Veteran reported that he has been fired from several jobs due to his inability to deal with stress, and the VA examiner identified the Veteran’s stress management problem as a symptom of his PTSD.   Result:  The decision maker addresses the issue of individual unemployability (IU) in the rating decision.   Example 3:  The Veteran submits a claim for SC for right knee strain.  The evidence of record, including the resulting examination, shows that SC for the knee strain is warranted.  The examination also reveals a knee scar that resulted from a post-service arthroscopy procedure.  The examination indicates the arthroscopy was associated with the SC right knee strain.  The examination also shows that the scar is not painful or unstable and is less than 6 square inches.    Result:  In the event that the examination is otherwise sufficient for rating purposes, the decision maker awards SC for the knee condition and separate SC for the noncompensable knee scar as within the scope of the claim for SC for right knee strain.   References:  For more information on sympathetic reading of a claim, see Robinson v. Shinseki, 557 F.3d 1355 (Fed.Cir. 2009) scope of claim, see 38 CFR 3.155(d)(2), and M21-1, Part III, Subpart iv, 6.B.2 identifying reasonably raised IU claims, see M21-1, Part IV, Subpart ii, 2.F.2.k, and tinnitus associated with claims for SC for hearing loss, see M21-1, Part III, Subpart iv, 4.D.3.

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III.iv.6.B.1.d.  Definition and Example: Unclaimed Subordinate Issues

Unclaimed subordinate issues are issues derived from the consideration or outcome of related issues.  Often, the primary and subordinate issues share the same fact pattern.   Example:  SC for treatment purposes under 38 U.S.C. 1702 based on a denial of SC for compensation purposes is considered a subordinate issue for a psychosis based on wartime service, or for any mental disorder based on Gulf War service, and when entitlement is shown under 38 U.S.C. 1702. References:  For more information on subordinate issues, see M21-1, Part III, Subpart iv, 6.B.2, and when to address entitlement to SC for treatment purposes under 38 U.S.C. 1702 by rating, see M21-1, Part IX, Subpart ii, 2.5.f.

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III.iv.6.B.1.e.  Definition and Example: Ancillary Benefits

Ancillary benefits are secondary benefits that are considered when evaluating claims for compensation pension, or Dependency and Indemnity Compensation (DIC). Note:  Eligibility for ancillary benefits is derived from a Veteran’s entitlement to disability benefits or the circumstances of the Veteran’s death.   Example:  The Veteran is granted a 100-percent evaluation for amyotrophic lateral sclerosis (ALS) and complications, and the VA examination shows that he requires the daily assistance of his wife to attend to his activities of daily living.   Result:  The rating activity addresses the issues of aid and attendance (A&A), Dependents' Educational Assistance (DEA), specially adapted housing (SAH), and automobile allowance and adaptive equipment in the rating decision.   Reference:  For more information on subordinate issues and ancillary benefits, see M21-1, Part III, Subpart iv, 6.B.2.