I am in the process of working on my appeal for an EED for Bilateral Pes Planus with Plantar Fasciitis rated at 50%. Here is a history of my claims.
1. Filed a claim in 2001 to file for foot disability with a VSO. Nothing was done about it. The VSO made a couple requests following up and it was ignored.
2. Jan 2002 with a different VSO my claim opened. It is denied by the VA stating that service records show no complaints of claimed disability. I did not appeal.
3. Filed again in 2009. Claim was denied because I did not submit new and material evidence.
4. Filed a NOD in 2010. It would take the VA 3 years to respond.
5. June 2013 - I get a statement of case where the VA stated again that I did not submit new and material evidence. They also stated service medical records show no complaints of claimed disability.
6. In 2018 I get my C-file and find in there service medical records that show proof of my disablity. My service records show normal feet on my entrance exam. Two doctors visits showing diagnosis of flat and plantar fasciitis. An Xray confirming flat feet diagnosis and an exit exam showing abnormal flat feet with a pes planus diagnosis.
7. in 2019 i File a supplemental claim for flat feet and I submit the service medical records I find in my C-File. I also submit an IMO from an outside doctor. I get an exam. I get service connected but lowballed with 10%
8. In 2020 I hire an attorney and we appeal the decision with another supplemental claim for a higher rating and EED. I get rated at 50% but the EED is denied. The decision would be in early 2021
9. We file an HLR for the EED and that is denied. The senior rater said no error was found....surprise suprise.
Here is where I run into my dilemma on how to tackle this. The VA has repeatedly denied me by saying my service medical records show no complaints of the claimed disability. However, the evidence I use to force them to reopen the claim is service medical records I got from my C-File so it is clear they had the records. I do not know if this would impact 38 CFR 3.156(C) because these records clearly are part of my claims folder. Of course I can't say as to when they became part of my claims folder. They could argue that the 38 CFR 3.156(c) does not apply but then that wouid bes a clear CUE because they had the records and ignored or missed them.
While reviewing my letters I noticed something odd. All of my decision letters list as part of the evidence my service medical records with the exception of 3 and all of the apply to my recent decisions related to my feet. The letter that grants service connection and low balled me at 10 percent do not list the records but cite 38 CFR 3.304 for direct service connection. My decision letter that grants me 50% also does not list my service medica records. The HLR decision letter where no error was found also do not sited service medical records. I think this is intentional because citing this as evidence clearly would show an EED is warranted. The reasons and bases do not explain why they granted me service connection. They only cite the CFR and make not mention of any of the evidence.
Question
JKWilliamsSr
I am in the process of working on my appeal for an EED for Bilateral Pes Planus with Plantar Fasciitis rated at 50%. Here is a history of my claims.
1. Filed a claim in 2001 to file for foot disability with a VSO. Nothing was done about it. The VSO made a couple requests following up and it was ignored.
2. Jan 2002 with a different VSO my claim opened. It is denied by the VA stating that service records show no complaints of claimed disability. I did not appeal.
3. Filed again in 2009. Claim was denied because I did not submit new and material evidence.
4. Filed a NOD in 2010. It would take the VA 3 years to respond.
5. June 2013 - I get a statement of case where the VA stated again that I did not submit new and material evidence. They also stated service medical records show no complaints of claimed disability.
6. In 2018 I get my C-file and find in there service medical records that show proof of my disablity. My service records show normal feet on my entrance exam. Two doctors visits showing diagnosis of flat and plantar fasciitis. An Xray confirming flat feet diagnosis and an exit exam showing abnormal flat feet with a pes planus diagnosis.
7. in 2019 i File a supplemental claim for flat feet and I submit the service medical records I find in my C-File. I also submit an IMO from an outside doctor. I get an exam. I get service connected but lowballed with 10%
8. In 2020 I hire an attorney and we appeal the decision with another supplemental claim for a higher rating and EED. I get rated at 50% but the EED is denied. The decision would be in early 2021
9. We file an HLR for the EED and that is denied. The senior rater said no error was found....surprise suprise.
Here is where I run into my dilemma on how to tackle this. The VA has repeatedly denied me by saying my service medical records show no complaints of the claimed disability. However, the evidence I use to force them to reopen the claim is service medical records I got from my C-File so it is clear they had the records. I do not know if this would impact 38 CFR 3.156(C) because these records clearly are part of my claims folder. Of course I can't say as to when they became part of my claims folder. They could argue that the 38 CFR 3.156(c) does not apply but then that wouid bes a clear CUE because they had the records and ignored or missed them.
While reviewing my letters I noticed something odd. All of my decision letters list as part of the evidence my service medical records with the exception of 3 and all of the apply to my recent decisions related to my feet. The letter that grants service connection and low balled me at 10 percent do not list the records but cite 38 CFR 3.304 for direct service connection. My decision letter that grants me 50% also does not list my service medica records. The HLR decision letter where no error was found also do not sited service medical records. I think this is intentional because citing this as evidence clearly would show an EED is warranted. The reasons and bases do not explain why they granted me service connection. They only cite the CFR and make not mention of any of the evidence.
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