Supplemental Statement Of Case

[Charleese]

Hi Everyone, hope someone can help me with this.

My husband received a Letter with Supplemental Statement of Case dated 4/10/07 attached to it. Letter starts off stating "This is in further reference to the appeal you have filed from our decision on your claim for benefits. It is not a decision on the appeal you have initiated. It is a Supplemental Statement of the Case which contains changes or additions to the original Statement of the Case sent to you on 8/11/2006. A previous Supplemental Statement of the Case was sent on 10/20/06."

In the 4/10/07 Supplemental Statement of Case under the heading Decision it states: "Entitlement to an earlier effective date for status post fracture left tibial tubercle with osteoarthritic changes and chronic chondromalacia, 30 percent from 06/22/200 is not established."

My question is how in letter it can state that it is not a decision on the appeal initiated and then under Decision in Supplemental Statement of Case it states Entitlement to an earlier effective date .....is not established. Has anyone experienced this before and is the VA allowed to do this?

To us this is totally confusing. If a decision was not made why are they stating in Supplemental Statement of Case that one was made not to established an earlier effective date.

Any help hadit members can give me on this matter will be greatly appreciated.

Thanks!

[Vike17]

Charlese,

I hate to say it, but your talking in circles and jumbling the the whole thing up. For instances;

"The CUE that I am referring to in my message to Berta is the one she helped me with and it was filed with them in August of 2005 for their 1985 rating decision which states" 0% from 09/09/1983....In his CUE he is stating that "still the pain and scarring obviously had to be as present in 1985 when the 0% SC award was made, as it is now. Also the rating disability codes that VA applied at that time failed to be proper"

I assume you're contending that he should be given the 10% for the tender scar back to Sept. 9, 1983 instead of June 22, 2000. If there isn't any documentation of this somewhere in his medical records back from 1983 through 1985, it's not going to happen. Furthermore, the skin, more specifically a scar to the same area of the service-connected injury, didn't become a seperate bodily etiology for rating purposes because of pyrmiading until sometime in the 80's. I can't rememeber exactly when, so this may have factor in their decision.

"He goes on to state the "reasons and bases" that 3 rating specialists signed and agreed to in the 1j985 decision in no way legally complies with the proper rating codes nor do these reasons and bases take into consideration the secondary osteoarthritic changes as noted within 2 separate documents in the medical records"

If the DC(s)(possibly a hyphenated code) assigned were between 5256 and 5263 this would proabably be a judgment call on the rater and doesn't constitue a CUE. Now if the rater assigned, for example, a DC of 5293, which is for the lower back, then yes, this would be a CUE. Also, if a DC was assigned based on ROM, let's say 5003-5261 for limitation of extension to 10 degrees, which would warrant a 10% evaluation, but there was another ROM measurement somewhere in his medical records that note 5 degrees, which warrant a 0%, then this would not be a CUE because the rater used his judgment in that the 5 degrees possibly portaryed the more complete picture of the disability at the time. Also, in order for a 10% or 20% rating under 5003 there must be objective evidence (x-rays) in the record at the time of the rating that actually show degenerative arthritis.

"The earlier effective date that he is referring to in his CUE is from 09/09/1983 that is on 1985 rating decision and not prior to 1983 as their SSOC states....He never filed a CUE for an earlier effective date prior to 1983. His CUE is for an earlier effective date from 09/09/1983 as outlined in 1985 rating decision"

This is where you seem to be going in circles. The rating decision that was done on June 7, 1985, assigned the 0% back to Sept. 9, 1983. You and your husnband DID file a CUE claim for EED prior to Sept. 9, 1983 in Aug 2005. It appears that you had claimed TWO MAYBE THREE CUE claims, one for EED for the 10% rating of the scar and/or a higher evalution of the left knee prior to June 22, 2000 AND an EED for service-connection of the left knee back to Dec. 1958!

Like I said before, the BVA spelled it out pretty well as far as why the claim(s) for an EED is not applicable.

Vike 17

Edited May 9, 2007 by Vike17

[Berta]

The CUE we discussed made sense to me-

I just read my copy of it. CUEs should be short and to the point and clearly state the legal error they made.

"noticed in 1985 rating decision it sates "0% from 9/9/83."

It seemed to me that medical evidence the VA had in their possession at the time (1985) warranted a rating from 1983 to the 1985 decision.

If they are trying to re-state the point of the CUE-in a different way- clarify that in a letter to them-

if they deny it, file for a reconsideration-

when I did that last year they immediately started working on my CUE claims again.

Their denial was based on fiction.

I sent them fact.

CUES are tricky of course and no one should depend on a CUE's resolve being what they want- but I say file the CUE if the potential is there-

and pursue it-

dont let it go like I did at the BVA only to have Regional Counsel award it many years later anyhow-along with 40,000 bucks

Edited May 9, 2007 by Berta

[Charleese]

Thanks Berta,

I will help my husband in responding to SSOC and ask for Reconsideration of their Decision to deny him CUE in it.

Also, to VIKE, I am sorry if my message sounded jumbling, etc. to you. I will try to be more careful in the future.

[Charleese]

Hi Rick,

In my haste I forgot to thank you for taking the time to read the BVA decision and post your thoughts and finding on here. I appreciate it.

[Vike17]

Ricky,

Charlese had stated in a couple of post last summer that she filed a CUE claim for an EED back to 1958 when her husband supposedly filed his first claim. Furthermore, if you read the BVA decision at the begining, it states;

"In August 2005, the veteran submitted a statement alleging

clear and unmistakable error (CUE) in a June 1985 rating

action continuing a noncompensable evaluation for his

service-connected left knee disability. The Board also notes

that veteran has asserted that he originally filed a claim

for service connection for his left knee disability in

December 1958. In essence, he asserts that an earlier

effective date is warranted for the grant of service

connection for his left knee disability"

This was contrued by the BVA as a claim for an EED back to 1958 and they remanded it, I think twice, to see if there was any records to that affect.

Berta,

The CUE would make sesne to me too, if there was some sort of documentation in his records in the time frame of 1983 through 1985. I have never seen the medical records so I couldn't say one way or the other. I wasn't saying there was no way it could be possible, I was just implying that if there isn't any records as such the CUE claim won't go any where.

Vike 17

[Berta]

You are right of course Vike-

It seemed to me that the legal error occured when they failed to apply proper DC and rating in 1985 decision over a 1983 claim.

Say a vet files for SC heart disease in Jan 2005 and then is awarded in November 2006 at 40 %.

Say they give the vet Jan 2006 as the EED.

And state prior to that from Jan 2005 to Jan 2006 the rating was "0".

If there was medical evidence to show any rating at all in that year- it seems odd they would give Zero-

this example is how I tried to interpret the CUE claim here.

And to support legal error in the diagnostic code and use of the rating schedule.

There is issue of scarring and the scars had to be there in 1983 if they were there in 1985 when the claim was rated.