Veterans Claims Help

Rashid El Malik adds a comment to our Pending claims doctrine post and I thought I would bring it out here so others can see what he’s asking.

I have a question? In 2003 I filed a claim for R wrist disability. In 2004, I received a 10% rating and I perfected my appeal to the Board claiming a higher rating and loss of use due to pain. In 2007, the Board remanded the R wrist claim requesting a C&P examination to determine if the wrist should have a higher rating and loss of use. After waiting over 2 years, in 2009 I file a writ to the Court, and the Court order the Board to conduct a C&P exam within 15 days. I received a maximum rating of 70% and loss of use. The Board set the effective date as the date of the C&P exam. I filed a formal CUE claim arguing the effective date should be the date of claim since I appealed the RO decision and the Board remanded the case. (Pending claim doctrine) The Board and the Court denied my claim.

Are they correct in stating there was no error in the decision because I could not rely on the 2003 date of claim. Let me also note that the Board and the Court never discuss the remand or three year delay waiting for a C&P exam that could have been completed within three months.

Mr. El Malik has a valid question.  On its face, it appears  the Court is fraternizing too much with the VA Secretary and Will Gunn. Let’s divide this up into it’s integral parts, for there are several.

You have one claim (r wrist) in 2003.

You win and get 10%. You appeal for a higher rating. VA tells you to piss on a flat rock.

You appeal and BVA remands with instructions to measure you again and rate appropriately. This is called a staged or Fenderson rating after Fenderson v. West. Ratings and effective dates are established by the Ratings Ranger at the VARO nearest you ( or another RO if they farmed it out) but not at the BVA. They may raise it based on a waiver of review however.

Insert remand, delay and Extraordinary Writ here

If the Rating Specialist refused to budge on an earlier effective date, it would go back to the BVA with all the new evidence of your latest (i.e. recent C&P exam revealing 70%) for a new decision on the correct effective date for the 70%.

BVA refused to grant the 2003 date probably saying the first documented proof in your files of a 70% disability is at the 2009 C&P exam. At no time prior to that day in 2009 is there any medical proof that your condition warranted a percentage higher than the originally assigned 10% in 2003. I suspect the RO rater said exactly the same thing.

You are beginning to wonder why VA blew you off for two years about here.

The Court then agreed with the BVA decision ( affirmed it).

I assume that sums it up.

Mr. El Malik is attacking with the wrong legal utensil. This is not a case of a pending claim doctrine. Put simply, Rashid received his rating effective in 2003 albeit for 10%- therefore there was (and is) no pending claim. He won. He has now been inspected, detected, injected, and rated 70%. This 2009 C&P is the first day VA can point to and say “Yeppers, Rashid.  You get the big seven oh, dude.”

At about 2004 in the claim, Mr. Rashid would have been smart to also submit proof himself that this magical threshold had been reached at an earlier date-say somewhere around 2003-2007. This rebuts the VA’s contention that Rashid’s right wrist got immeasurably worse all of a sudden at the 2009 C&P-but not a day sooner.

Without this rebuttal evidence on the record, all the BVA judge has to look at is one (1) 2003 C&P and one (1) 2009 C&P. With nothing in between, there is no specific date to point to. With no new evidence submitted to support an earlier effective date for the 70%, the claim must fail. The earliest ascertainable date the 70% can be awarded is 2009. When you get to the BVA, that’s all she wrote on evidence submittal. You cannot go to the CAVC and introduce new evidence there.

The Court merely affirms that the BVA didn’t cheat while deciding they had two C&Ps to work with. The Court is not a trier of fact. They are simply the ones to take the legal pulse of this and make sure the BVA judge did it by the book. He did.

Now, as to the Court or the BVA Judge noting the Writ of Mandamus, that is an entirely  different case that has nothing to do with this. It has a different docket number and is of no consequence to this adjudication. As for that two year delay? VA’s take is Justice delayed is not justice denied. You eventually got the C&P. I suppose in their eyes you were remiss in not notifying them after 90 days that you had not been scheduled for the dog and pony show.

That, Ladies and Gentleman Vets, is the tempest in the teapot that Rashid has sailed into. Poor legal advice or a poor legal strategy? Only Rashid can say and he has not given us enough to make that call. I will email him and ask him to review this for accuracy and to add any other comments.  VA utilizes the House of Mirrors technique on claims filings. When they screw up. the attitude is simply ” Two years? My bad. Okay, schedule him for a C&P.” And since it’s the only game in town, we have to beg for each thing.

CUE ( clear and unmistakable error) has not occurred here.  If it has, it is on Rashid’s part for not submitting evidence to rebut the 2009 C&P before it left the VARO.