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63Charlie

Question

The Board just granted left and right sinus tarsi syndrome, osteoarthritis of ankles, and bilateral pes planus.

What are the sinus tarsi syndrome rating percentages?

Waiting on the decision letter.

Edited by 63Charlie
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I would not hold my breath on anything a VSO tells you. I am waiting on a remand from the BVA to the VARO now as the Montgomy VARO could'nt find its ass with both hands until the BVA reopend my claim after 38 years of VARO Crap.

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@Rattler767I had similar problems with the Montgomery VARO in the past. In the late 1990s, I went there to attend a traveling BVA hearing where they granted SC that was repeatedly denied by the VARO.

I have an active BVA claim involving how the VAMC and VARO "misplaced" my records and the Montgomery VARO failed to grant the correct rating. I had an HLR and the reviewer agreed with my contentions, but the decision letter was hosed up by someone else and they flat out ignored them. I was told the hearing would be done over the phone or via video. I guess it will take a year or two before I can talk with someone who has competent knowledge of VA law as it existed 20 years ago.

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On 4/28/2021 at 9:53 AM, Vync said:

@Rattler767I had similar problems with the Montgomery VARO in the past. In the late 1990s, I went there to attend a traveling BVA hearing where they granted SC that was repeatedly denied by the VARO.

I have an active BVA claim involving how the VAMC and VARO "misplaced" my records and the Montgomery VARO failed to grant the correct rating. I had an HLR and the reviewer agreed with my contentions, but the decision letter was hosed up by someone else and they flat out ignored them. I was told the hearing would be done over the phone or via video. I guess it will take a year or two before I can talk with someone who has competent knowledge of VA law as it existed 20 years ago.

I have the same problem. Been to two RO hearings when the Montgomery RO makes a decision they either ignore the direct evidence presented or they don't use it at all. The BVA remanded because. 

"The matters are REMANDED for the following action:
1. Attempt to obtain, through all indicated and
appropriate sources~ the appellant's personnel records.
All efforts to obtain these records should be documented.
If any records cannot be obtained after reasonable efforts
have been made, issue a fonnal detennination that such
records do not exist or that further efforts to obtain such
records would be futile. This detennination should be
documented in the claims file and the appellant must be
notified.
2. Obtain any relevant, outstanding VA treatment records
that are not already associated with the claims file. If no 

records are available, the claims folder must indicate this
fact and the appellant should be notified in accordance
with 38 C.F.R. § 3.159 (e). All attempts to contact the
appellant should be documented in the record."

The Real question is should I resubmit the same evidence that is in that I have submitted before that the RO ignored or should I let the RO find it in the 1800+ pages of my C-file. This is a legacy claim I guess I could request another in person hearing with the RO. Also there is the Issue of a new C & P exam. Do I push them for it? The last C & P rated me as "Service connection for treatment purposes only under 38 U .S.C. chapter 17 for persistent depressive disorder with other specified trauma disorder is granted." With no % ratting.

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On 5/10/2021 at 7:17 AM, Rattler767 said:

The Real question is should I resubmit the same evidence that is in that I have submitted before that the RO ignored or should I let the RO find it in the 1800+ pages of my C-file. This is a legacy claim I guess I could request another in person hearing with the RO. Also there is the Issue of a new C & P exam. Do I push them for it? The last C & P rated me as "Service connection for treatment purposes only under 38 U .S.C. chapter 17 for persistent depressive disorder with other specified trauma disorder is granted." With no % ratting.

 

Look at the decision letter and determine if the favorable evidence was completely overlooked. If that is the case, it would never hurt to point that out.

38 CFR 4.2 and 4.6 basically say the VA must interpret all reports of examination in light of all recorded history and consider every element which has probative value. However, VAOPGCPREC 12-95, May 10, 1995 (Bell v. Derwinski) brings up some interesting points. It does refer to claims which became final after July 21, 1992, but defines constructive notice.

Quote

..medical records which are in VA's possession at the time VA adjudicators render a decision on a claim will be considered in the record at the time of the decision, regardless of whether the medical records were actually before the adjudicator at the time of the decision.

...

The General Counsel found that if the outcome of the case is altered by the records, a later claim may result in a finding of clear and unmistakable error.

I used that in my case. Basically, my Nov 1997 C&P report was "misplaced" by the VA and was only mentioned in my initial March 2000 decision as having been "misplaced". Because the VA authored that evidence prior to the decision, it was considered as being in the record (i.e. the VA had constructive notice). I found that exam when I received a paper copy of my claims file 15 years later. I filed a CUE, which had to be refiled as a supplemental (because VA staff didn't understand it after the AMA changes of 2019). After denial, I had to send it in as an HLR. The senior reviewer found that missing exam in a separate batch of documents dated March 1999. He agreed with my contentions, but QA hosed it up and denied using the exact same logic as the initial decision (38 CFR 4.59 to assign a minimum rating vs. 38 CFR 4.40 and 4.45 to apply the correct % where pain began, per DeLuca). That's why it is now at the BVA.

Remember, you can submit a CUE at any time. However, after the AMA of 1999, the VA wants everything to be submitted on the "correct form". However, at the time I submitted my CUE and the appeal to the BVA, M21-1 clearly stated that CUE does not require a form. Because you have a legacy claim, you have the benefit of more flexibility.

 

If they granted you SC for MH, but did not assign a percentage for it, then that specific claim should still be considered open. It might be worth looking on va.gov, checking with your VSO, or calling the 1-800 number if you do not have a VSO in order to find out if the VA actually granted you a rating percentage.
  I had a new SC granted by remand once, but never got the decision letter. My VSO was able to get me a copy. It turns out that the new SC percentage was not enough to push me up to the next 10% tier, so I didn't see any increase in my monthly payments. Once I got the letter it explained that. My VSO and I attributed it to being lost in the mail. However, I did have documented VAMC progress notes showing sustained worsening, so I filed an increase and it did end up pushing me up to the next 10% tier.

 

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UPDATE :

The BVA awarded service connection @ 0% rating in October, 2020, and ordered the VARO to perform a new C&P exam to determine my current level of disability for my pes planus and related foot/ankle disorders.

I received the C&P exam in 2020 shortly after the BVA ordered one.

However no new rating for these disabilities has been forthcoming.

Now here it is May 23, 2021 and I still have the same 0% rating, with no new rating decision by the VARO.

The VA knows that an increased rating for my feet/ankles will allow an EED for my SMC-S.

But anyway..no movement still.

 

Edited by 63Charlie
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