Insufficient C&P exam, supplemental claim, TDIU, and other strategy

[Willypete 0]

Hi, new member here, longterm lurker.

I'm seeking advice on moving forward with my claim regarding loss of peripheral vision (code 6080), TDIU as a result. Specifically, I'm wondering if I should file the supplemental reopen to include EED, SC, and the TDIU?  Here's the timeline:

Initial VA claim in 2015 for numerous things including field of vision loss, back pain, lower leg numbness, etc. This resulted in only 30% service connected lower back arthritis, but denial on the vision issue.  By 2018, the back worsened and a few other issues arose, so I submitted another claim resulting in the back increasing to 40% SC, hemorrhoids 20% SC, lower limb radiculopathy 20% for 70% total. 

I did not appeal the vision due to lack of education on the VA claims process. However, I've done my research and found that my initial vision C&P exam was insufficient.  Per 38 CFR § 4.77 - Visual fields., the exam must be conducted using Goldman kinetic perimetry or Humphrey/Octopus automated. Neither of those occurred during my test. My vision test was outsourced via LSI (?) to a local optometry store. After meeting the doctor, he was informed that the "machine" was broken, so my test was performed manually using a tangent screen skipping Goldman. This is the basis for the insufficient exam.

After receiving my initial 30% in 2015 I entered into the VA for my medical care, as a part of that I indicated I had vision issues and thus began annual visits at the VA to get an exam and meet the ophthalmologist. My initial Humphrey scans did show significant loss of peripheral vision and I was transferred to the head of the department for follow on analysis. She did a full eye exam, could not find anything physical in the eye that might be causing the loss and recommended annual visits to track the progress. Fine.

3 years passed and each year the Humphrey test showed continued loss of peripheral vision.  In 2019 I started seeing the neuro-ophthalmologist who decided it was time to do more investigating and ordered a MRI and then later a CT Angiogram. The results of those tests was that once again no physical cause could be seen for the vision loss. I'm a Gulf War vet with 42 combat missions in the aircraft in 1991 and then a 2nd tour in the Gulf during Southern Watch during 1992. Additionally, our airwing was based and I lived at NAF Atsugi which has been highlighted for issues regarding a dioxin incinerator just south of base. I was going to name these issues to garner a SC but recognize that may be weak sauce. 

My left eye concentric contraction is around 15% and the right eye is around 20%. Based on the better eye this translates to 50% rating. 

The TDIU is something I've only recently thought about. I have issues with driving and going into busy stores is extremely stressful as I cannot see people coming from the sides so I avoid them. Previously, I owned my own business but prior to Covid I had already shut one location and sold another as I was reducing my workload due to my back and vision. In March I closed my last location and do not anticipate reopening because I don't think I can handle it. Physical labor is out of the question and the back/hemorrhoid precludes extending sitting and the vision is making driving near impossible and headaches are an issue.

Thanks for any advice on how best to further the vision claim and perhaps include some of those issues I've talked about. Any problems with reopening a claim based on an insufficient initial exam?

[broncovet 3,493]

Yes, you can challenge the competency of the examiner.

https://cck-law.com/blog/how-to-challenge-va-cp-exam/

However, if you are seeking "back" benefits on an unappealed claim, its more complicated than that. 

First you should have your file reviewed.  

If you did not receive "notice" of your appeal rights, you may still be within the appeal period because it does not begin to you recieve notice of your rights to appeal. 

Also, if you submitted "new evidence" in the appeal period, you have reopened the claim and you may not even know that, if VA didnt re adjuticate it.  

https://cck-law.com/video/how-to-reopen-a-va-claim-2/

Lastly, there may be CUE, but we would not know that until we reviewed your decision as well as your cfile.  

[Willypete 0]

1 hour ago, broncovet said:

Yes, you can challenge the competency of the examiner.

https://cck-law.com/blog/how-to-challenge-va-cp-exam/

Thanks for the link I had not read that particular article. However, among my reading on the subject I found that there is a distinction between "insufficient" C&P exam and other challenges. It's somewhere in M21-1. My appeal window closed and I received notification of such at the proper time. As I mentioned I was fairly ignorant to the VA claim process so I just let it go by. However, it seems that in the instance where the examiner failed to follow the procedures as specified in 38 CFR § 4.77 the exam is considered "insufficient". In the specifications for CUE filings they specifically exclude insufficient exams as there was no error it's just considered not finished. 

2 hours ago, broncovet said:

Also, if you submitted "new evidence" in the appeal period, you have reopened the claim and you may not even know that, if VA didnt re adjuticate it. 

The "new evidence" is my now 5 years of treatment at the VA hospital in town along with recognition by the head ophthalmologist and neuro-ophthalmologist. I've also had numerous Humprey tests and one Octopus test on the eyes all showing loss of peripheral vision.

I believe from all my reading that the proper process is to reopen my claim showing the insufficient C&P vision exam and the new evidence from my VA treatment. Then, depending on how that is adjudicated, follow up with HLR or CUE. At that point I would push for EED as well.