Question about Servello v. Derwinski (1992)

[Vync]

I have seen a number of posts talking about Servello v. Derwinski, 3 Vet.App. 196, 198 (1992) regarding increasing an existing rating percentage or TDIU.

Does anyone know if Servello also applies to secondary disabilities not related to TDIU or increasing an existing rating percentage?

 

Edited May 19, 2021 by Vync

[Mr cue]

Not say don't file them I always keep a issue in my back pocket to use at cavc.

Now he had about a 200 thing listed lol I am just kidding. So I would not load the ro with all the info.

I am old school legacy 

I have not look into all this new claim ama higher level straight to bva.

I used dro hearing and transcript. Short time limit to bva hearing .

I do think they do them anymore. Could be wrong.

Now if u only have two issue in your cue yes fill them all

 

 

 

[john999]

The VA has a duty to review all claims.  What if the VA claims they did review the inferred claim but it did not meet the requirements to be awarded.  In a CUE any judgement calls result in a loser.  Of course, the only way to find out is to file the claim.  What do you have to lose?  You did a hell of a lot of good research on your claim.  I hope you win it.

[Mr cue]

Then it would be a denail in your record showing.

They review and inferred issues.

[Vync]

@john999 It seems to me the VA definitely overlooked the inferred claim factor. I also examined about the potential to deny CUE based on a judgement call. It appears the inferred headaches was raised by the evidence (my written correspondence and VA doc diagnosis) and the VA failed to review and adjudicate it.

@Mr cue If they considered the headaches as an informal claim, then they would have specifically stated it and the denial would have been in my record. Interestingly enough, I went back to the decision letter from 2000 and thoroughly looked for any mention of headaches or migraines. Under the narrative where they describe granting SC for TMJ,  it is mentioned there only once, but at least they mentioned it:

Quote

He had headaches, difficulty chewing, limited opening, and a loud clicking and popping on attempts to open fully.

They made no mention of other issues diagnosed during the same C&P exams, such as GERD, etc...