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Remand from BVA to AOJ.

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Scout Swimmer

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Well here we go again. Good gosh!

VAMC 2012 exam was not in keeping w/all ascertains we have since made, as well as new evidence of record. Dr. Bash provided very probative evidence that by law, the AOJ and VAMC has to be able to take into account per their past negative opinion against me.

Certainly, the BVA could have just granted w/out another CP exam. But, they are also obligated to adhere to previous VAMC/AOJ denials and give the refuting doctor the opportunity to clarify their opinion further.

They also failed to consider the lay evidence. They have been directed by the BVA to be explicit in their rational if refuting evidence submitted by Dr Bash. They seemed delightfully harsh in their language, which is personally satisfying. A small part of me would like to see these idiots refute my evidence purely for entertainment value.

 

Here is to another 4 years of the waiting game. Drinks are on me.

Edited by Scout Swimmer
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Scout Swimmer, can you post the remand order(personal info redacted), that way some of the more experienced members can give their interpretation. Is the claim back at the RO? Hopefully it wont take years, i wish you and your wife the best of luck!

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"Because the April 2012 opinion (C&P) does not address the Veterans allegations of ongoing respiratory and headache symptoms since service, it is inadequate for rating purposes. See Dalton v Nicholson, 21 Vet App. 23 (2007) (finding that an examination must consider lay evidence of in service incurrence or continuity of symptomology since service).Accordingly, another examination and opinion, which shows consideration of the conflicting evidence record is messes scary. Barr v Nicholson, 21 Vet App. 303 (2007) (finding that the VA must provide an examination that is adequate for rating purposes. 

Finally, since the Claims file is being returned it should be updated all outstanding VA treatment records. 
Accordingly, the case is remanded for the following actions;
1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veterans claim, to include updated VA treatment records.

2. Schedule the Veteran for an appropriate VA ENT or pulmonary disorders) examination to determine the current nature and likely etiology of any repository including asthma rhinitis, sinusitis and or bronchitis and or headache disorder. 

The claims folder should be made available to the examiner for a review in conjunction with the examination.

Based on the examination and review of the record, the examiner should address the following:
A) identify by medical diagnosis and or headache disability entity found.
B) identify the likely etiology for each respiratory and or headache disability entity diagnosed. Specifically it is at least least as likely as not (50 percent or better probability) that such is related to the Veterans service. 

The examiner is to specifically consider and address the Veterans assertions regarding her claimed in service respiratory/ and headache   Symptoms and post service continuity of such symptoms and the statements/opinions in support of her claim from Dr Bash  
The examiner should reconcile the April 2012 VA addendum opinion and the opinions of Dr Bash. 
The examiner must explain the rational for all opinions citing to support factual data and medical literature as appropriate. If the examiner determines that the questions cannot be resolved without resorting to speculation than an explanation as to why this is so must be provided. 

3) the AOJ should them review the record and readjudicate the Veterans claim. If either remains denied, issue an appropriate supplemental statement of the case and afford the Veteran to respond. The case should then be returned to the board, if in order, for further review.    

Edited by Scout Swimmer
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Did the RO have the IMO from Dr Bash when they made the decision that is on remand?

If so did they use it as evidence or did they completely ignore it?

Can you give us the Docket Number and Citation of the Remand? It might be at the BVA web site by now and you would not need to scan and attach it here because we could read it from the BVA web site.

 

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Hi Berta. 

Dr Bash was hired during the appeal process so no, the RO never had to go against his IMO. Bash actually wrote another opinion after the hearing at BVA as well when he was sitting in with the judge. 

 

The remand isn't available on the VA web site yet. 

Edited by Scout Swimmer
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Update:

New C&P scheduled for next week.  The appeal was remanded back to RO only three weeks ago.  Seems pretty fast considering the time these sit and sit and sit from other members claims.

Now for the weird part. After the C&P we are scheduled for a phone interview with the C&P doctor a week later. I don't think I ever heard of that. Is this a normal thing?  

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