Found random C&P exam

[Foxhound6]

Not sure who might know this, possibly @brokensoldier244th, but would there be any reason for a C&P exam being performed (in my record), without me filing a claim during the time I had the exam? It appears favorable with exception to the examiner making a remark toward the end.

I recall sitting down with someone from mental health during that time at the VA because I indicated my issues with mental health during my (presumptive from exiting active duty) left knee claim that was SC'd.

I just find it odd that, even with diagnosis and favorable findings, it was never listed as a disability or NSC disability. I never even knew it existed until recently

I can redact and post exam if needed. Thanks!

[broncovet]

Excellent post, and Thank you foxhound!  I have tried to explain this, but you did it better than I did:

Quote

After doing more eye ball drying searches over google, I found an interesting article by the Veterans Law Blog. It would seem that even normal raters do not have the ability or training to go back and even attempt to give an EED anyway.

This is why I suggest you get your effective date appeal to the Bva AS QUICKLY AS POSSIBLE.  HLR or SCL is useless, its just another senior rater from your VARO.  

This portions you posted on effective dates, citing your source, is excellent.  It should be posted again, with a new post where many Vets can see it when appealing their effictive date.  

Edited September 29, 2020 by broncovet

[pacmanx1]

Quote

This is a tricky argument…mostly because the VA itself doesn’t understand it.  The VA thinks that you cannot file a claim for benefits without a claim form that specifically mentions a particular condition. Time and again, the courts have told them that they are wrong: the courts have said that the VA should liberally construe the record to determine if additional conditions were raised in a prior claim even though they weren’t specifically mentioned on the VA Claims form.

I think what you are looking for is:

In accordance with "Clemons V. Shinseki, 23 Vet. App. 1, 5 (2009)" (when determining scope of a claim, Secretary must consider the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim”). Clemons concerned VA's failure to consider a claim of entitlement to benefits for a disorder other than the one specifically claimed, even though it shared the symptomatology for which the Veteran was benefits.  The Clemons Court found that, where a Veteran's claim identifies a condition, without more, it cannot be a claim limited only to that diagnosis, rather must be considered a claim for any disability that reasonably may be encompassed by the evidence of record.  The Clemons Court indicated that, when a claimant makes a claim, he is seeking benefits for symptoms regardless of how those symptoms are diagnosed or labeled.

 

 

 

Edited September 29, 2020 by pacmanx1

[Foxhound6]

6 hours ago, pacmanx1 said:

I think what you are looking for is:

In accordance with "Clemons V. Shinseki, 23 Vet. App. 1, 5 (2009)" (when determining scope of a claim, Secretary must consider the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim”). Clemons concerned VA's failure to consider a claim of entitlement to benefits for a disorder other than the one specifically claimed, even though it shared the symptomatology for which the Veteran was benefits.  The Clemons Court found that, where a Veteran's claim identifies a condition, without more, it cannot be a claim limited only to that diagnosis, rather must be considered a claim for any disability that reasonably may be encompassed by the evidence of record.  The Clemons Court indicated that, when a claimant makes a claim, he is seeking benefits for symptoms regardless of how those symptoms are diagnosed or labeled.

 

 

 

Yes, this is a fine example as well Pac! Thanks!

[Foxhound6]

6 hours ago, broncovet said:

Excellent post, and Thank you foxhound!  I have tried to explain this, but you did it better than I did:

This is why I suggest you get your effective date appeal to the Bva AS QUICKLY AS POSSIBLE.  HLR or SCL is useless, its just another senior rater from your VARO.  

This portions you posted on effective dates, citing your source, is excellent.  It should be posted again, with a new post where many Vets can see it when appealing their effictive date.  

Thanks! I knew I had been onto something but i too was having a very tough time explaining it to everyone. Even the paralegal helping with my case for my attorney had no clue what i was trying to say. All she could muster up was “uhh, 2013 is going to be too far back to do anything”. Thats when I knew I may be on my own on this or have to find much better attorney firm. 

Edited September 29, 2020 by Foxhound6

[Foxhound6]

On 9/28/2020 at 2:54 AM, Foxhound6 said:

You or your representative did not get a copy of an adjudicatory document in the prior claim. See 38 CFR 5.125(d)

If i had to make the best argument I could for EED on this, I feel like this is my situation. The C&P from 2013 was never adjudicated, I was never notified of any adjudication, which could indicate that it would be an “open and pending” claim and EED should reflect that. 
 

STILL waiting on my CFile..10 months and counting. Already reached out to my state Senator for help on that. 

[brokensoldier244th]

On 9/23/2020 at 3:14 AM, Foxhound6 said:

Not sure who might know this, possibly @brokensoldier244th, but would there be any reason for a C&P exam being performed (in my record), without me filing a claim during the time I had the exam? It appears favorable with exception to the examiner making a remark toward the end.

I recall sitting down with someone from mental health during that time at the VA because I indicated my issues with mental health during my (presumptive from exiting active duty) left knee claim that was SC'd.

I just find it odd that, even with diagnosis and favorable findings, it was never listed as a disability or NSC disability. I never even knew it existed until recently

I can redact and post exam if needed. Thanks!

Raters can infer things from claims- it also could have shown up related to another claim and since the two systems were related (hypothetically) then it got rated administratively based on the evidence of record.