CAVC–Fenderson v. West – Staged Ratings


Asknod inc logo VECTORHere’s another one of those cases where you hear the term and wonder who or what it refers to and what it means where you are concerned. Before I start, look at the claim structure VA employs. There are new (original) claims never presented before, reopening an old claim, claims for increase of an existing SC disease or injury and lastly a collateral attack on a prior final decision based on clear and unmistakable error. VA does not consider a claim for dependency to be different from a claim for increase. 

     At the Regional Office (RO or VARO) level in your state, the process begins and here is where most claims seem to suffer from what at best can be politely described as misinterpretation. This is what happened to Mr. Joseph A. Fenderson. He was “represented” by the American Legion. They are normally a stand up outfit with the same spotty record as most VSOs. Unfamiliarity with the law is the reason for all VSOs’ ineffectiveness. They mean well, but that says it all. Murphy’s first law says no good deed goes unpunished. All VSOs aspire to greatness and a good result for their clients but the absence of any legal training leaves them in an awkward posture when it is needed. I digress and apologize.

     Mr. Fenderson was actively engaged in his claims process while still being represented by AmLeg. This can and does cause confusion as to who is driving the car. This confusion caused Mr. Fenderson to miss filing for some issues he wished to appeal (varicose veins). That’s unfortunate but when you have this haphazard representation and start doing things yourself, you can guarantee things will go haywire.

     The VA got terribly confused on this, too. They tried to interpret it with their Ouija Board and tea leaf readers. They came to the conclusion that old Joe was simply asking for an increase on claims that they had only recently granted when what he was asking for was an increase on the initial ratings. There is a distinct difference. An example is in order. You file for a hangnail and VA grants you 0%. You file your NOD and ask for 10% but they refuse. Finally on appeal five years later, you win and get the 10% you were fighting for. However, in the interim your hangnail became ingrown, infected and they had to hacksaw your finger off. You deserve more-you want more. You have to go back to the RO for that and you lose. Back to the BVA for more and finally you arrive 5 years later at the Court. Let’s say by now the finger beside it got infected and they amputated that too?  You would be entitled to more and it would have to commence on the day the hangnail first started, not the day you got around to filing for it as an increase of the original claim.

     The VA has an odd habit of examining correspondence you send in through binoculars backwards. This causes problems. They have a whole section devoted to trying to understand just exactly what it is you meant to say or claim. Because they want to make sure you get what’s coming to you, they will perform what is known as prognostication. You will read it later when the appeal says “it appeared the Veteran was filing for…” or “VA interpreted this to be a claim for.. .” My personal favorite is “It was construed to be…”. God, are we all that illiterate and word challenged?

     Joe had only recently been service connected for varicose veins, plantar fasciitis, migraine headaches and problems after testicular surgery. Naturally when he sent in the disagreement with the ratings they assigned, this enlightened group of prognosticators ignored his file and “construed”   it be a NEW claim for increase. And off they went on their merry way. You cannot get the VA to put the horses back in the barn when this happens. You have to go to appeal to straighten it out which buys time for the VA to come up with an excuse for screwing it up. Oddly, nobody gets a nasty letter in their personnel file for these inadvertent slip ups.

     Joe had to go all the way to the Court to unravel this one. The big boys had no problem dissecting this and agreed with him on almost all of it except for his verbally challenged attempt on the varicose veins. For that he had to go back and start a new increase claim. What they also did is what will give Mr. Fenderson his name in lights for years to come. AB v. Brown (1993) held that a Veteran is seeking the maximum benefit available to him when he files a claim. He shouldn’t have to beg again and again for morsels from the VA’s table. VA should give him that to which he is entitled when he is entitled rather than piecemeal. I guess the M-21 manual hasn’t been updated with that provision yet. It certainly wasn’t in there in 1999.  

     The Court decided that a rating is flexible and if, during the course of your appeal, the injury or disease gets worse (or better), then the rating percentage must follow that development. This principle is called a staged rating or a Fenderson rating. This is a very important distinction. If you win and do not disagree with what they hand out, you agree that it is correct. If you come back several years later and say “Hold the phone! I should have been given 20% back then. You screwed me.”, you are too late. The time to disagree is when the rating is granted. You can file a NOD as Joe did to accomplish this as long as it is done in the traditional one year grace period for objecting. Just make sure that you use single syllable words and make it crystal clear what it is you are trying to “construe”.

     In 1994 I filed for “PCT as a residual of Hepatitis or as a residual of Agent Orange exposure”. VA’s crackerjack sleuths interpreted this to mean I wanted to file for a) residuals of Hepatitis and b) PCT due to AO. This allowed them to a) declare I wasn’t currently suffering from Hep. and b) I was never in Vietnam and therefore I was never exposed to AO. Pretty tricky, huh? Get used to this practice. It happened to me in 94, it happened to Joe in 97 and you can be damn sure it will happen to you if it hasn’t already. It buys them time to come up with more creative ways to deny you as the claim progresses. One of their personal favorites used to say that you claimed Hep. C but you had Hep. B in service. Bingo. Wrong. Go back to Go. Do not collect $200.00 and please refile. If you are not allowed to make medical diagnoses about your illness when submitting lay testimony, how is it that they can hold you to this when you file? Welcome to the VA Hall Of Mirrors Funhouse.

     At any rate, Mr. Fenderson provided us with one more tool in the pursuit of our claims. It is a very important one and prevents the VA from depriving you of a rating % when it is legitimately due. The mere fact that Veterans have to negotiate this legal minefield to obtain that which is their due speaks volumes about the process and the people hired to administer the system. Never lie down and take it. Never rationalize it and say “Oh, there are so many other Vets that are more deserving.” VA is counting on you doing this. It’s factored in that a certain percentage of us will give up and go home. A very large percentage, I might add.

     Below is Mr. Fenderson’s rematch with Goliath.                                                                                                                                                                                                                                        Fenderson_96-947

About asknod

VA claims blogger
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