lotzaspotz

Anywhere in the Marshall/Longview area?

LOL, hence comes the name Lotzaspotz! Paul, the answer to your question is you don't refuse or deny, as you put it, a comp exam. You go through the motions and then duke it out through the appeals process. That's what the CAVC and then the Federal Circuit Courts are for. If they come at you with an argument that supposedly rebuts yours, you go at them with additional evidence that rebuts theirs. Or, if there is no additional evidence, you stand your ground on your existing evidence and the statutes that support your position, then appeal it to the CAVC. With a lawyer, preferably. A comp exam by statute is supposed to be thorough and contemporaneous. By the time the BVA gets around to reviewing your appeal or holding your hearing, the exam may no longer be considered contemporaneous, regardless of whether the VLJ is still thinking things over or has stated anything about it at the hearing one way or the other. My husband's been through the same deal. We've had stuff remanded three and four times for either outdated exams or exams that were performed but didn't answer the BVA's or CAVC's questions or follow remand instructions. How do you think we got to the point of still appealing issues under a BVA docket number that starts with "94?" We're waiting for notification right now from a CAVC remand last October that asked for comp exams that deal with the period 1993 to 1997. How can a current day comp exam answer questions from back then? Beats me, I don't know yet if it mostly involves a records review, an in-person examination, or both. But know what? If/when he gets called in, he's going. If they try to apply current day evaluations retroactively to his detriment, we will throw the BS flag on that one too and continue appealing it. That's not what we want to hear, but it's the process as it exists, their sandbox, their rules, until you get it out of the VA system and into the Dept. of Justice system at the CAVC. Of course, there's always the possibility that the VLJ's decision even with the new comp exam will go in your favor. I've said this many times here, it takes perseverance and a strong stomach (and if you're like me, an Irish/Italian inherited disposition about letting anyone try to take advantage of you or yours) to deal with the VA.

Here's a discussion regarding cataracts in this forum from a few years ago resulting from medications. I posted as "VAF" back then... http://community.hadit.com/topic/1385-eye-problem-cataracts/

Did the BVA judge tell you definitely that an additional exam would not be required? If not, the BVA more than likely would order another exam, anyway, if as you say, your appeal has been pending for years. You didn't have to copy the RO on your IMO, that's what the evidence waiver was for, but that doesn't prevent the BVA from ordering an updated, more timely exam if they so desired. At any rate, if you're scheduled for an exam, my opinion is that you plan on showing up for it. You can call the BVA if you want to, but if anyone there tells you to disregard the exam notice, get that in writing either via mail or email. Don't just take someone's word for it over the phone.

Cloudiness.

My husband has been taking bi-weekly depo-testosterone injections since 1993 for service connected total hormone replacement due to a pituitary brain tumor. He is service connected for sleep apnea and bilateral cataracts that are the secondary effects of long term steroid use. You may find it useful to get a broad view over time of what side effects may develop if you're taking similar meds. The secondary effects showed up after approximately 14 years of treatment.

I agree about attorney representation at the CAVC. We already have attorney representation for other claims, but as you know, most attorneys stay clear of CUE's, and you can't have more than one attorney representing you at a time. So, if the attorney you have doesn't want it, you either change attorneys for everything or go pro se. Thank you for this list of cases, I'll get busy reading.

Basically it involved the fact that we discovered evidence in my husband's military medical and VA medical files that the RO and then the BVA said didn't exist. So we filed a CUE trying to salvage the original claim filing date. They attest to thoroughly reviewing files before they deny based on evidence in the file, but in truth, they either overlooked or ignored it. We provided it with the CUE, but it was not rebutted.

I filed a CUE at the RO, which was denied. It was based on 3.156(c). I filed an appeal on that with the BVA, which was also denied. Since I haven't traveled this road before, are CUE's eligible to be appealed to the CAVC? Basically, I found evidence in my husband's military medical and VA records that wasn't listed or discussed in prior decisions, therefore, was not considered. This is not new evidence. Anyway, on one claim, tinnitus, I've asked for CUE for an earlier effective date. The other, a hearing loss denial, although the BVA decided to reopen his claim for a later effective date. In 1993, he thought tinnitus and hearing loss were both rolled into each other. Husband was an ATC guy and worked flight lines for 20 years with the old fashioned earpieces that were inserted directly into the ear canal. His MOS is on the list, and I sent in the fast letter about this, but it wasn't considered. Anyway, that's the short version. Thank you.

Ok, just a few thoughts that are subject to correction, if needed. You can submit new evidence up until the Board makes a determination, that is, after you file the NOD, Board appeal, etc. You can send the Board a waiver of review of new evidence so it doesn't send it back down to the RO to disregard or mishandle, hopefully saving you some time. As long as the appeal is within the VA Dept., including the Board, the environment is technically supposed to be non-adversarial (but I treat it as adversarial as soon as the initial claim is filed). It isn't supposed to become adversarial until it leaves the VA and enters the DOJ arena in the form of the CAVC that it then becomes adversarial. The VCAA notice from my experience has been useless, as the so-called assistance we've been offered has always been a canned statement that can apply to any and all claims, and not specifically tailored to our specific circumstances. I've had differences of opinion on effective dates changed to our benefit just by filing an NOD on that point. That's why I asked what is the difference between a review auto-generated by an NOD vs. a reconsideration request.

It's not difficult to see why they're dragging their feet on digitizing your records. I'm sure my husband's 13 volumes of records are meeting the same fate. Most of his military medical records were handwritten anyway, so a word search would not work on those, as I understand it.

What is the difference between a reconsideration the vet requests vs. an NOD, which triggers a review of the decision anyway? Is there a difference between a reconsideration and a review? The NOD is critical to the appeal process, anyway, so why not just file the NOD and get a review from that?

Yes, we have. We wrote the opinion for my husband's doctor, copied it on a thumb drive in the event he wanted to change anything, and he said he would do it. We offered to pay a fee, but he didn't name a number or talk further about that, but we figured he would once he started writing the opinion. We then called around the month and a half mark to see how it was going, but he said he had been busy and hadn't gotten to it yet. At the three month mark we called again, only to be told that time that he didn't want to get involved beyond my husband's medical records in his office and then returned everything to us. This was certainly his perogative, I just wish he told us up front instead of stringing us along.

Then, it looks like the only important question you should ask in response to their question is, "Haven't you reviewed my medical records that contain the information you just asked me for?" You'll read all kinds of fictionalized accounts of what you allegedly said during examinations, I know we have. I also noticed one day when I went to an exam with my husband that the C&P is pre-typed on the screen, the examiner filled in the blanks. I managed to get some distance behind the examiner while he was typing, and he didn't notice my looking at the computer screen that was, for the most part, already completed. When we got the copy, I read in the same paragraph that not only did my husband attend the exam alone, but he somehow managed to have me accompany him while he was alone. He allegedly told them he dropped out of high school when he, in fact, graduated. We also read that his tour in 'Nam was in 1977, after the war had ended. Makes for an interesting NOD.

Sorry that happens, Ice. As if you feel like explaining yourself repeatedly on the subject. If you ever feel like jacking with them for fun and yucks, answer their question with a question. Something like, Why do you ask such an insensitive question? Why ask, are you planning on challenging me to a relay race? Why ask, is there a new turbo-charged version available and you want this one back? People are taken aback when you answer a question with a question. It puts the pressure back where it belongs, on the idiot asking the question.

I think the following might help you. This is copied from Alex Graham's blog under "Presumption of Regularity" (pertaining to mailing stuff). https://asknod.wordpress.com/?s=Regularity I would do several things. First, I would file an NOD. Make sure you include a copy of the cancelled stamped envelope showing the wrong address, the stamp cancellation date vs. the date of the denial. Second, send an IRIS complaint, not an inquiry. Third, and I know some disagree here but it's helped us, get in touch with your local Congressional representatives and ask them to monitor the situation on your behalf. Our Congressman helped us find out a few years ago that the VA withdrew a BVA appeal my husband had filed; he never withdrew it, turns out the VA attributed that to a clerical error. They never checked to see if they had anything in writing from my husband, and the canned IRIS response we got said the appeal was decided and we'd be hearing from them shortly. The fact was we were never going to hear from them until our Congressman got involved over what we incorrectly thought was merely an unreasonable delay. THEN, they couldn't move fast enough to reinstate it. You may be able to keep this simple, but just in case not, you need the NOD to follow protocol. NOD's are supposed to automatically trigger a review of the denial.

I deal with what is most of the time, not what should be. My husband did his 20 and went out on a medical retirement. Those guys are few and far between among the disabled vet population. We've now been going toe to toe with the VA for longer than the length of my husband's enlistment. VA employees, many who are veterans themselves, are often victims of group think. It's easier for them to make these self-serving assumptions about disabled vets, especially when they work with like-minded allies, "them vs. us," dealing with disabled vets involves suffocating workloads, endless reams of paper files, and then the coupe de grace, throwing productivity bonus plans into the picture. Unfortunately, when they have a financially motivated pre-determined goal in mind, the thumb is going to be on the scale. Going back to my original point, this atmosphere of distrust and antagonism encourages a "means justifies the ends" evaluation process that can begin with the veteran being observed under video surveillance while waiting to be seen or evaluated merely going to the examination room. VA employees may think the money vets seek is undeserved, but they're all too accepting and ready with their hands out to get their bonuses. We were told by one retired family medicine practitioner (conducting a lumbar spine exam, which should have gone to a specialist as it was on BVA appeal) in his mid 70's that the only reason he was working at the VA part-time was because he made bad investments, He needed the bucks, so I doubt he was going to bite the hand that fed him at that point in his life. There will be no fundamental change in this posture anytime in the near future, so I'm just picking up information along the way that helps us navigate the best we can through this cesspool of a "non-adversarial process."

In a similar vein, if you ARE using a cane or any other apparatus when you show up for your C&P exam, it better have been prescribed for you or suggested in writing somewhere by a doctor. If it's not, the examiner will probably assume it's a dramatic prop used to exaggerate your condition and will likely note the discrepancy in the report.

I think you'd benefit from going to the BVA website and conducting a search using the exact phrase "inextricably intertwined," which may address your concerns. http://www.index.va.gov/search/va/bva_search.jsp?QT=&EW=Inextricably+intertwined&AT=&ET=&RPP=50&DB=2015 i just checked the current year, but you can dig earlier if you have the time. This will give you some idea of how the BVA reaches that conclusion and the evidence upon which the conclusion is based in each appeal. If you want to view results at the CAVC website, insert that phrase in the query line in Search. http://search.uscourts.cavc.gov/search/

What's the saying, Pete, "It ain't paranoia if they're REALLY after you!"

Technically, since the old rate sheet information is already in your records, the BVA should already be aware of it. However, in reality, who knows. I would submit it and draw their attention to it, but wouldn't call it "new evidence." The best that can happen is it helps, the worst is that they disregard it as redundant, but I would certainly play that card if I had it, and I'd do it before I had to take it to the CAVC. JMO.

In this particular veteran's case, the remand resulted from some extra effort put forward by the BVA, luckily. I guess the RO expected her to show up for the exam showing visual cues of the obvious effects of incapacitating migraines in that moment. Instead, she tried to act like a person whose turn came up to be seen at the DMV. Note the statement about her wearing sunglasses, that she wore them in the examination room and suddenly complained of pain from the light. Left unsaid in the decision was whether she wore them in the lobby while she waited, and if the examiner asked her if she experienced pain from the light in the lobby when she was waiting to be called.

I was reviewing 2015 BVA decisions regarding the New Orleans RO, and came across the following. I'm on a tablet and can't cut and paste the section, but scroll down to the second paragraph above the "Order" section. You'll find that this veteran's carriage and demeanor when she was called from the waiting room found its way into her C & P exam report and then into the BVA decision. http://www.va.gov/vetapp15/Files2/1512277.txt Always remember, your exam starts the moment you enter the exam facility. If you're there for a spine exam, your posture in the chair you're seated in, in the lobby, may very well be noted. There's plenty of literature on exams here at hadit, but I thought it would be useful to remind everyone that the exam begins upon entering the facility, not when entering the examination room.

We sent a certified letter terminating the representation agreement to the service organization and a copy of the letter, also sent via certified mail, to the RO. Of course, the RO still screwed things up by sending copies of correspondence to the service organization after we fired them. It wasn't until we got an attorney and he wrote to the RO that the RO finally got the message. You can also mail or fax a copy of it to the Evidence Intake Center covering your location. That's pretty much all there is to it.

Berta, I've wondered in general about the date upon which retro is based because of the VA's canned statement on their SOC's that says they've obtained and reviewed the veteran's service medical records. If there's some condition that the vet hasn't claimed upon initial application (as it appears here), but it's clearly in the service medical records or manifests itself within one year of discharge, would that not be an inferred claim? If it's clearly there and would support an earlier effective date, I wonder if an argument could be made that this being a so-called non-adversarial process, if the evidence is there, and the VA supposedly reviewed the records in their entirety, the VA should rate it anyway because they were aware of it through their records review. Especially when the veteran has memory problems like organic mental syndrome or the like? I think it would be a struggle, as all claims appear to be these days, but is there any basis in the statutes that could support this rationale? I think my question speaks to jhilly's post.