Back Exam

[Durangokid]

Currently 10% for lower lumbar. Going through my VA medical records and found where my VA doctor documented doing a back exam on me in June 2013. The exam results  he documented in my medical record would justify increasing me to the 20% rate. Has it been too long to try and do anything with that exam? Put in for an increase and back date to the June 2013 exam? Thanks.

[GBArmy]

Durangokid It is evidence but when you go for a new disability, or, for an increase rating in an existing s-c disability, you need a current diagnosis. Think about it; you already are rated for the conditions based on your symptoms at the time of the C&P exam. Not how you were prior to the exam. The time to challenge the accuracy of the C&P results are before they get old. Usually not more than a year or so. Certainly not years; they will just give you another exam, not look at old results.The way to do this is go out and get additional evidence that show your condition is worse than the current rating by comparing the rating criteria on the diagnostic code. Most probably the VA is going to require a new C&P to see if they agree. If you are worse, go for it.

[flow1972]

DITO what GBArmy said.

[Durangokid]

Thanks for the input guys. Anything to avoid another C&P. 

[GBArmy]

Durangokid Just one more thing. You are concerned about another exam. Well, as already discussed, it is likely a sure thing if you put in for an increase in your disability rating. However, based on your age and other factors, you may need to be called in for another C&P exam anyway. Ask someone who has access to the VA's VBMS system , like a VSO, to see what your status is for the condition. It will state whether or not you will be scheduled for follow-up future exams, or, if your condition is static, which means no further exams are anticipated. A "static" condition is one of several criteria on whether you will be receive another exam. You can also get this info off of your rating code sheet. You can request it from your RO if and when they ever open back up again. The other criteria used by the VA to determine if a veteran needs a future exam can be found in their ops manual, M21-1 at III.IV.3.B.2.d  I suspect, with a back injury at 10%, after 5 years, they would leave yo alone unless you rock the boat by asking for an increase. That said, if your conditions are worse, still go for it. 

 

[pacmanx1]

On 12/10/2020 at 4:33 AM, GBArmy said:

Durangokid It is evidence but when you go for a new disability, or, for an increase rating in an existing s-c disability, you need a current diagnosis. Think about it; you already are rated for the conditions based on your symptoms at the time of the C&P exam. Not how you were prior to the exam. The time to challenge the accuracy of the C&P results are before they get old. Usually not more than a year or so. Certainly not years; they will just give you another exam, not look at old results.The way to do this is go out and get additional evidence that show your condition is worse than the current rating by comparing the rating criteria on the diagnostic code. Most probably the VA is going to require a new C&P to see if they agree. If you are worse, go for it.

Depending on when the veteran's rating decision was made. 

I am going to have to disagree, it really depends on the evidence of record.  If a veteran finds new and material evidence that supports a different outcome, then a veteran can reopen his/her claim and or file a Cue claim. There is no time limit in filing a reopen claim or a CUE claim. Cue claims are harder to win but they are not impossible to win. It all boils down to the evidence in the file at the time of the original decision and does the evidence support the criteria that the veteran should have been granted the higher rating.

This may take another  C & P exam but not sure what the veteran is looking for. This is how I won my 1998 EED after VA had granted me a 2013 rating decision. I proved with medical evidence that the rater did not review my entire C-file. I had VAMC Medical Reports/Records that showed my diagnosis and treatment notes that were in my C-File but were not associated with my rating decision.  I had at least 3000 pages of medical records and I know that the rater did not review my entire folder. 38 CFR 3.156 states a veteran can reopen his/her claim if new and material evidence is found/located to support a different outcome of a rating decision that VA would have to re-adjudicate the veteran’s rating decision. (Paraphrasing Here).

[pacmanx1]

 3.156 New evidence.

New evidence is evidence not previously part of the actual record before agency adjudicators.

(a) New and material evidence. For claims to reopen decided prior to the effective date provided in § 19.2(a), the following standards apply. A claimant may reopen a finally adjudicated legacy claim by submitting new and material evidence. New evidence is evidence not previously part of the actual record before agency adjudicators. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending legacy claims not under the modernized review system.New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

(c) Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))

(d) New and relevant evidence. On or after the effective date provided in § 19.2(a), a claimant may file a supplemental claim as prescribed in § 3.2501. If new and relevant evidence, as defined in § 3.2501(a)(1), is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will re-adjudicate the claim taking into consideration "all of the evidence of record".

Cross References:

Effective dates - general. See § 3.400. Correction of military records. See § 3.400(g).

 

Not only does the VA has to re-adjudicate the veteran's rating decision. If the veteran can prove with medical evidence that he/she met a certain rating percentage, the VA would have to retro that percentage for the entire time period. Of course, minus what they already paid the veteran and if the veteran's service connection was denied the VA would owe the veteran for the entire time period.