lotzaspotz

Your remand notice from the CAVC should have noted the shortcomings that provided the basis for the remand. The Court normally spells out what needs to happen next. You can also provide additional evidence, like a medical opinion, if you choose. My husband's appeals have been to the CAVC several times, so we have a little experience in this area. Good decision to have a lawyer representing you at the CAVC. I think that once an appeal gets that far, veterans should not try to handle their appeal themselves.

The Court denied the stay to the VA in Robinson. Directed them to provide the paper copies and explain why the VA shouldn't be sanctioned for ignoring a July 29th deadline to either produce the files or explain why it would or could not.

You've got to work on your vocabulary. Evidently, you like to swear at women. The hearing is rather long, but a good investment of your time. Listen to it, maybe you'll learn something you didn't know before, if that's possible in your case. I'm betting you think it's not.

Red herring, broken soldier. We're not in litigation with the "entire health care industry." The VA as keeper of our evidence is supposed to be non adversarial. It's very adversarial to shred hard copy evidence in a Court case where the VA serves in a conflicting role - non adversarial keeper of the evidence, yet the Appelee in a CAVC case that is now in an adversarial environment. There's something called adverse inference that basically says the VA stands to benefit from actions in violation of the Court's rules, especially through destroying original source documents being used in litigation against it. They should not be allowed to benefit from a violation of the Court's rules or manipulate evidence. If they want to change a Rule, do it through arguing the reasons in the Rules Committee. This stuff matters. You're plain flat out wrong, the CAVC says so. Sorry you don't like it, but those are the facts. Have you even bothered to listen to the hearing? I doubt it, your responses are based on your general opinions. I'm not "bitching," as you put it. After 23 years of this stuff, I know it gets us nowhere. But people need to understand what affects their claims, especially veterans who started out with paper records. And the last time I looked, that does correlate with the purpose of this site.

My point exactly. My husband's digitized records have large sections of blacked out pages which could very well be scanner misfeeds. Other pages were misscanned where the page was only partially copied. Three other veterans' records with medical info, dates of birth, SS numbers and addresses were in his file, which begs the question as to whether any of his stuff is in someone else's file. There was a missing IMO that once we noticed it was missing, the VA "found," but they won't tell us where or if anything else was also stashed there. Your file has been parsed out in different places, it is not all in one place. Now, there are nine or ten possible storage places where your stuff is, and the VA has to remember to look in all of them once you ask for your record and get it on CD. They don't oversee quality control on every digitized claims file, it's a random check system that allows, give or take, for a 1-2% error rate. My husband's claims file is approximately 8,000 pages. 1% - 2% error = 80 to 160 pages. That's a lot of pages, and no one knows WHICH pages they are, that could be crucial to a claim. Johnson is a real eye-opener.

The VA is considering appealing the Court's decision to the Federal Circuit.

I really encourage everyone to listen to Johnson and read the docketed documents. It's not a conspiracy theory. It's a conscious effort by the VA to circumvent the Rules of the CAVC. The Court itself has interpreted Rule 10 to mean exactly what it says it means. Read the decision the Court eventually reached. Large portions of VAMC records were missing from Larry Johnson's digitized records. His attorney managed to find them as the audio reflects in her statement. The problem was that the Board made its decision based on the digitized copy. The VA also admitted it had not yet destroyed his hard copy records. However, when his attorney asked to review the hard copies in the VA's possession, the VA declined to provide them. The reason for this appears to be because they do no longer want hard copies of records to be formally recognized as original source documents. Once, the copies are digitized, they're scheduled for destruction, and not just for deceased veterans. The digitized copies then magically become original source documents. The VA has a representative on the Court's Rules Committee, the place where Rules changes are made. This is not the way the VA should try to ram a Rules change down the Court's throat, through litigation off the back of a disabled veteran. Evidence needed for ongoing or even potential litigation should not be destroyed. That goes for documents and hard objects, as photos of the objects vs. providing the objects themselves would not be accepted in civil or criminal litigation as evidence. Why should the standard be lowered to the detriment of veterans litigation? Granted, this only affects veterans who have paper records. Newer veterans had everything digitized from the beginning, so this is an issue that will eventually time itself out. If you're ok with this on a personal level, that's fine, too. But listen to Johnson before you reach any conclusions. That's all I'm saying.

What do you do if the digitized copies are missing sections of your paper records (as was the case in Johnson)? You ask to compare one against the other. What do you do in the event of scanner misfeeds? You ask to compare the scanned copies to your paper copies. Now, what do you do if the paper copies have been shredded?

You would do well to read Rule 10 at the CAVC's website. Also the Court's directive to the VA after the hearing. It appears the Court disagrees with you.

I think it may be time for a Writ of Mandamus Petition for Extraordinary Relief. You can write a letter to the Court, in your own words, saying you are filing a writ petition because of unreasonable delays and describe the history of this appeal. Send $50 or a Waiver form for financial hardship. You'll see some action soon thereafter, one way or the other.

The VA is digitizing records, then scheduling the original source documents for "disposition," which includes shredding. They are unilaterally redefining what original source documents are. They are referring to digitized copies as the source documents, once scanned, and then referring to the actual paper documents as "duplicate non-records," and then scheduling them for destruction. Read Larry Johnson, Jr. v. McDonald at the CAVC, Docket No. 15-0715, or better yet, listen to the audio of the panel hearing. It'll scare the hell out of you. According to the VA, up really means down, in really means out, and digitized really means original source document.

Very well said, Buck. We're looking forward to that day, too. Thank you.

Buck, this was the first time ever that I was not permitted in the exam room with my husband. I had a packet of relevant evidence however, which I've always brought for the occasion if something like this ever happened. The examiner did accept it and later, after it was over, indicated to me that he had read it and appeared happy to have it, as some evidence previously submitted to the RO was missing from what the VA gave him (another reason the veteran needs a copy of the exam before a rating decision takes place). He assured me the packet, in the format I gave him and exactly in the order it was presented to him, would be inserted in the claims file. So, at least this time, I'm not as concerned about not being there as I would have been if the evidence packet was refused.

Freckled one here, lol... No Green, I thought about asking for a copy of the "policy" but decided against it. First, because this was a c & p exam, and I didn't want to antagonize the examiner or the keeper of the gate (receptionists have excellent memories and more power than we give them credit for, don't forget that, lol!). Second, I'm sure there isn't one. I would be asking for something I know doesn't exist, at least in writing. I'm going to deal with this another way.

Bless you, Buck -- and everyone here! I will certainly let you know if I get a response and if so, what it is, whatever the outcome.

I think I'd like an answer to whether C&P exam reports are subject to HIPAA. If they are, that will solve much of the problem. That's what I'm going to ask my Congressman who is an M.D. and a Navy veteran to find out. Thank you all.

"Mental health exams" should require a clinical psychologist or psychiatrist, I would think. Where I come from, that equates to a psych exam.

First let me clear something up -- this has nothing to do with a psych claim. It's for strictly physical issues, no shrinks involved here. The exam was ordered (again) because the Board's questions in the previous remand were not addressed by the examiner in the previous exam. He did not follow the directives in the remand, which when I got the copy, I realized and immediately contacted the Board t dispute the exam. The Board eventually agreed. So, we received another remand and waited for a new exam. The same examiner. In fact, he told me he thought he opined in my husband's favor the last time and was surprised to see him return. I saw no purpose in telling him he was mistaken, that he opined against my husband. What was the point? He was supposed to have reviewed the claims file. Does it sound to you like he did? You have to scrutinize the context of the exam, make sure it follows the DBQ, make sure it follows the Board's or Court's instructions if there's a remand involved, and determine the credentials of the examiner. Do you want a podiatrist conducting an endocrinology exam? An N.P. conducting a psych exam? There's a lot more to think about here than an up or down decision. Veterans have the right to a thorough and contemporaneous exam, and also the right to review the documents the examiner submits to the RO to make sure the exam fits those parameters. Often enough, they clearly do not.

Ice, we've been at this since 1993. With the same RO. I have a paper trail of exams since then. It makes no difference how long we've been at this, it's what is happening now that counts. Berta is right, as usual!

Please don't imply that merely because a veteran wants their exam results asap, that their "ducks" are not in a row. Berta's post voices my feelings on the subject quite eloquently. It's not simply "impatience" that drives this. So where is this ruling to be found, on a dartboard somewhere?

The question as to what good it does a veteran to get a copy of exam results as soon as possible in the claims process can be answered by the old adage, "Forewarned is forearmed." The sooner you realize there's going to be trouble headed your way, the sooner you can prepare a plan to neutralize it. As for that information being excluded from HIPAA laws, who said so, the VA? Any statutes on that or litigation history? Or just because they say so?

So those of you who were denied copies of your exam results had to wait until after your claim was decided to get a hard copy or see it pop up on ebenefits? If you appealed and got another exam ordered by the Board or CAVC, did you have to wait until the appeal was decided before you got a copy? I would never advise calling an examiner personally to air one's displeasure over the exam results. There's a formal process to challenge the exam and it doesn't include contacting the examiner.

This is interesting and unfortunate, if true. My husband had another C&P exam yesterday. It was at a VA office in town dedicated to these exams, but not at the VAMC. While it was going on and I was waiting in the lobby, I asked the receptionist for the form to complete to get a copy of it, as I've always done. She replied, and the examiner later concurred when I asked him the same thing, that the VA nationwide has implemented a new policy. Copies of exam results must now be requested directly from the RO, and will not be available until after a claim is decided. VAMC's will no longer provide copies to veterans. You can guess what's going to happen (or more likely, not happen) if veterans have to jump through this brand new hoop to get medical information that rightfully belongs to them in reference to their claims and appeals. Has anyone else heard this? I'm wondering how the HIPAA laws impact this. Our Congressman is also an M.D., and I'm ready to contact him, but I'd first like to get my facts straight. I asked about accessing the information on ebenefits, but they told me to expect a change in that, but they didn't know how that was all going to shake out.

OSA was awarded in 2007 secondary to a primary SC condition due to side effects of meds prescribed to treat the primary condition.

You had an attorney, which meant you were denied at the RO and appealed to the Board. The Board granted the claim, but you disagreed with the effective date based on a CUE your attorney says the Board committed, is that right?