Bad C&P

[SPO]

So I finally got a copy of my C-file, and my last C&P is a mess.  To begin with, no genoiometer was used on most of my joint, and she noted that it was.  The exam and remarks blocks are not consistent.  She would check that I had pain in the exam, and then say I didn't in the remarks.  She ignored things I said, specifically I did report flare ups and she check that I did not.  I know for a fact the range of motion listed for at least my shoulders was incorrect.  I'm not sure what to do to get this garbage exam thrown out. Can any body help.  I'm putting together a supplemental claim, but I can't get a doc to fill out full Range of motion reports and all that stuff.  Just for everyone's knowledge, I have all the caluza elements covered.  Its just a matter of getting the correct percentage assigned.  Also for what its worth, the exam is from March 2019.

Edited May 13, 2020 by SPO

[deedub75]

35 minutes ago, SPO said:

II.iv.5.C.6.b.  Continuously Pursued Claims

If an issue is continuously pursued under 38 CFR 3.2500(c) as a higher-level review (HLR), supplemental claim, or appeal to the Board of Veterans’ Appeals (BVA) (or a timely combination of any of those review options, in succession), decision makers must apply the effective date provisions of 38 CFR 3.2500(h)(1), which allows for an effective date based on the date of receipt of the initial claim, or the date entitlement arose, whichever is later.   Note:  A supplemental claim filed within one year following a decision on the same issue for that same claimant from CAVC, the U.S. Court of Appeals for the Federal Circuit, or the Supreme Court of the U.S. is considered a continuously pursued claim and can be afforded the effective date provisions of 38 CFR 3.2500(h)(1).

I had claims I had originally filed in 2010.  I filed for knees and back secondary to pes planus.  It took them a couple of years to deny the claims. They eventually approved the pes planus but denied the knees and back claims.  They took my pes planus all the way back to 2010 when I originally filed.  I reopened with new evidence within one year and I continuously pursued them all the way to the BVA where they were remanded in 2018.  I opted in to RAMP and requested an HLR where it was denied but since they made a duty to assist error, I was allowed to request an other HLR and it was denied.  They kept asking the same examiner for medical opinions and this NP kept making up new reasons to deny it.  I finally got my orthopedic surgeon to write a nexus statement and I sent it in as a supplemental in February 2020.  I was sent for new exams in March and it was quickly approved but they used the date of the supplemental as the effective date.  I requested another HLR and I cited the above CFRs stating that I had been continuously pursuing these claims since 2010.  Since my pes planus claim was given an effect date in 2010, it only makes sense that the knees and back claims be given an effective the same as the pes planus since I claimed them all at the same time and continuously pursued them.  I hope the DRO will fix it but it will go back to BVA if not.   

I spoke to 2 of my old coworkers.  One is a DRO and the other is a manager now and they both say the effective date should be the date I originally filed as long as I continuously pursed the claims and it makes no difference if it's a supplemental claim or not.  

[Buck52]

2 hours ago, SPO said:

Would it be helpful to through a statement in with my claim to referencing the regulation to remind them what my eed should be?

Well yeah its better than nothing....

You should ASK broncovet  he is the Expert about getting EED. 

He knows what Regs to use

[SPO]

Going to throw this statement in to hopefully shoot down my exam

I believe that the C&P exam that I received in connection with my psoriatic arthritis claim was insufficient. I was unable to make this conclusion for sure until I received a copy of my C-file and verified the what the examiner recorded in the exam, this process took over 11 months which delayed my ability to review the examiners entries and comments.  During the exam the examiner did not use a goniometer during the measurement of many of the affected joints. I asked the examiner if it was necessary to use the goniometer at least twice and she stated it was ok. I believe this resulted in inaccurate measurements of range of motion that may negatively effect the final outcome of my claim.  The examiner did also not record the my statements accurately.  I informed the examiner on every joint that I experience flare ups.  I informed the examiner that all the affected joints experience functional loss/impairment, however many of the forms do not reflect this information.  There are also no less than 2 instances where the remarks section states no evidence of pain. However, the range of motion section of the exam notates pain. On the arthritis dbq the examiner noted that continuous medication was not required for this condition. However, I made the examiner aware that I was prescribed Stelara and regularly take ibuprofen to manage the pain of this condition.  This information was also provided in the form of a DBQ by my doctor, and a letter from the same doctor which should have been reviewed by the examiner. These reports are clearly inconsistent and poorly completed.  Due to all of these insufficiencies/errors, I believe my exams are invalid.

and this one for the effective date.

In accordance with M21-1, Part III, Subpart iv, Chapter 5, Section C - Effective Dates
III.iv.5.C.6.b.  Continuously Pursued Claims and 38 CFR 3.2500(h)(2), the effective date of this claim, should it be granted, should be the date the initial claim (intent to file) was received.

Edited May 14, 2020 by SPO

[SPO]

So I’ve done some research and it seems like this C&p although bad will get me to 100% rating. Should I try to fight this CMP still or let it ride and try to get an increase on the joints they did incorrectly later?