Legal Question in Veterans Law in California

Clear and Mistakable Error

The VA failed to rate me for a requested Sciatic Nerve Damage. They lumped my back injury into one rating and failed to evaluate the sciatica which was clearly demonstrated in all medical exams through the military. I am appealing the case. Shouldn't I be entitled to back pay, from the original claim 1999, for the difference of what my disability would have been had they done their job correctly. My VSO rep says I should be more like an 80% rather than 40% which I have been rated at for 11 years.


Asked on 11/24/08, 9:58 pm

1 Answer from Attorneys
Jill Mitchell-Thein Heard & Smith, LLP

Re: Clear and Mistakable Error

You mean clear & UNmistakable error, but I don't think this fits into that category. If you didn't appeal the original decision, you are more than likely stuck with it. If you filed a separate claim for the sciatica at that time, and that claim was never adjudicated, you may have a chance at the 1999 date. You say you are appealing--did you try to reopen the original claim and it was denied? Or did you file a new claim for sciatica that was denied? Everything just depends on what the rating decisions say and what is in your VA file. I would need a lot more specifics to answer this completely. Btw, 80% is a very uncommon rating. Often, once you get to 70% you can eventually get bumped up to 100%--depending on the disabilities. Feel free to email me with more details and questions.

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Answered on 11/27/08, 2:45 pm


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