JKWilliamsSr

The examiner I had is a clear case study for lazy C&P examiners. Couple other things to point out. 1. He completed the DBQ while I was sitting at his desk. It was already uploaded into the system before I even made it to my car. I watched him complete it. He did nothing but copy and past from previous statements. 2. He stated that my back issue were influenced by my weight. This alone is laughable. He did not state my weight was the cause of my back issues. He stated it was "influenced" Something I nailed him on when I sent my memorandum for record. But he stated that my back issues were not service connected because they were influenced by my weight. Never mind the fact that I submitted a nexus from a doctor stating that because of my back issues I could not exercise and that contributed to my weight gain. 3. He stated there there were only 2 visists in my SMR's for back issues. Like that even matters. I only need one instance for service connection but he attempted to make it seem like because there were "only 2" instances it could not be service connected. There is a problem with this though.....see #4 4. There are actually 13 visits while i was on active duty for back issues. When I filed my recently claim I only uploaded 2 of the visits because they were the records that had diagnosis. When I filed in 2009 the VA acknowledged that I had back issues but denied my claim because I did not have any diagnosis while in service. When I got my c-file I found 2 visits with actual diagnosis and uploaded them as new and material evidence to reopen the claim.

I called the number on the letter this morning and have a C&P exam scheduled for tomorrow morning. They did not specifically say what the the appointment was for but only that it was an Ortho appointment but would not tell me specifically what for. I am going to assume it is for my foot because when I called 800-827-1000 I was told a request for a C&P exam for my foot was made on Jan 15. Since the letter I received was dated Jan 16 I assume it was for that. But....... I had a really bad C&P exam for my back back in November. Called and filed a complaint and sent in a memorandum for record for a bad C&P exam with the issues with the exam. Some of the issues with that exam include. 1. Examiner reported a history I never stated to him. (Submitted personal lay statements are contradictory to the statement he claimed I made.) 2. Examiner reported no radicular symptoms (Not mentioned during examiniation) 3.Stated I reported no flare ups. (Submitted personal lay statements are contradictory to the statement he claimed I made.) On top of that the examiner put on the DBQ that he examined things he never did. He reported finding for Ankle Plantar Flexion, Ankle Dorsiflexion, Great Toe Extension, Deep Tendon Reflexes and Hip Flexion but did not do any examinations. With that said I am going to go into this appointment with the expectation that I am going to be examined for both my back and foot.

My bad....it was typo. The letter is dated Jan 16. The number on the letter is legit because I called and it was to the VA but the problem when I talked to them they had no idea what kind of appointment needed to be made and I had to wait until Monday during business hours so I could talk to someone in Comp and Pen because apparently no one put in the code for the appointment that needed to be scheduled.

ANOTHER UPDATE: So today when I get home I check the mail and it appears I may get screwed but we shall see. I got a letter from the VA from R.S.V.P Scheduling today telling me a request was made for an evaluation or re-evaluation and that I had 10 calendar days from the date of the letter to call and schedule an appointment. Well this letter is dated October 16th and I did not call in time to get scheduled today and will have to do it Monday and hope they will schedule me since Monday is the 11th Calendar day. I had no checked my mail in a couple days. I know the letter was not there Tuesday because that is the last day I checked the mail. I did not check it Wednesday or Thursday. Has anyone heard of R.S.V.P. scheduling from the VA? I am scratching my head saying WTF! This letter is not even on VA letterhead. Is looks like a flyer and not an official letter.

I agree with you that 122 days is not unreasonable for a claim but at the same time I cannot allow them to just sit on their behinds either. I filed for increases and new secondary claims at the same time I filed my supplemental claim. The increase/new claim was a fully developed claim and was completed in less than 30 days and that was with a C&P exam. My supplemental claim was reopened previously denied claims and to be honest off of VA errors. They denied claims by saying they were not in my SMR's so submitting the SMR's with additional evidence to further support the claim should have made it straight forward. My concern is the amount of time from my C&P exam from my supplemental claim was so long when the first part of my claim was less than 30 days completed. With that said I was lied to when I called and asked for an updated. I was initially told that they were waiting for exam results. Well I called them on that and was told it was because of the backlog. Then the next time I call it is in the gathering evidence phase and 2 months later there was nothing. Did did not request any additional information from me not that I had any to give because my claim was FDC so it was just sitting there. So i was just checking on movement. When I call the VA I am never angry nor am I point fingers at anyone. I merely ask for an update on the status of my claim. I have learned that every time I make an inquiry some movement takes place. I normally would only call once every 3-4 weeks and that seems to work.

If they sent a letter out last week there is a possibility I may get it in the next few days. I have not checked my mail this week so in all fairness one could sitting there. I guess i think it odd because they called me for my last appointment and sent the letter after. I guess in this instance they may just schedule it this time and just tell me when and where to show up. This time I am not taking any chances. I think I made critical errors on all of my C&P exams and that is by not giving the examiner all the information for my claim. In each of my exams they would tell me that they did not need the information I had because they had access to my C-File and I went along with it. Every time I was screwed in the end because any evidence I submitted has never been included in a decision. This time will be different. I have already started preparing my packet to hand to the C&P examiner at my exam. 1. My entire Independent medical examination report with the disabilities that pertain to the appointment highlighted as well as the Nexus Statement highlighted. 2. Entrance Physical with the annotation that my feet were normal highlighted. 3. Exit physical with the annotation that I had flat feet at separation highlighted. 4. Sick call visit for foot complaints 5. The referral to podiatry where the podiatrist diagnosed plantar fasciitits and pes planus diagnosis highlighted 6. The X-Ray report with the confirmation of flat feet diagnosed. 7. VA 21-4138 from myself and spouse that shows continued symptomology since service 8. Private medical records that show treatment for plantar fasciitis. It has gotten to the point where I need to get cortisone shots. The fact that I highlight the important part in my SMR's may annoy the examiner but to be honest I do not care. I have been getting screwed over repeatedly and I am making sure the see everything important.

UPDATE: So I called the VA this morning to check on the status of my supplemental claim. They told me once again that they it is still in the development stage. However, this time they made a request for another C&P exam. This time it is for my foot issues. They said the request for a C&P exam was made January 15. As of today I have not received any word for the appointment. So I guess I will just wait and see. I have not idea who I would follow up with pertaining to C&P exams. I am going to honest here. I think my HLR may have something to do with the new request for a C&P exam. My supplemental claim was sent on Sept 22nd and scanned in on October 22nd. Not long after it is scanned in I get a call for a C&P exam but it was for my back only. No other exams were requested at that time. So it is clear someone looked at my claim but probably decided to ignore certain aspects of it. Now on December 4th I sent in my HLR request. In this request I pointed out a slew of errors. In this request I made a number of 38 CFR citations and I also made a number of CAVC Precedent setting case citations and in my HLR I made sure that I pointed out that all cases cited were 3 judge panel precedent setting cases. A few weeks after my HLR gets scanned in the request for a foot C&P exam is made. This is one of the claims they originally denied in 2009 stating there was no complaints in service. I get a copy of my C-File and in there is an entrance exam that shows normal feet. A podiatrist visit with a diagnosis of plantar fasciitis and pes planus. An X-ray report stating flat feet. An exit exam that has my feet as abnormal with a diagnosis of moderate pes planus. All of this was in my SMR's and I sent them in with my supplemental claim.

Yes I did challenge the exam. As soon as I saw the C&P exam results I called and filed a complaint about it letting them know that I do not feel the examiner did what he was supposed to. I then followed that up with a letter breaking down each issue I had with the DQB. The examiner stated things in the DBQ that were flat lies. Now I did not call him a liar in my statement. I just point out that what stated was not accurate and did not happen as he stated it. For example the examiner stated that I take motrin for pain. The problem with this is that we did not discuss medication. I point that out because for my back I take more than motrin. I have no idea where he got that from. On top of that I have a submitted statement in support of claim that discusses my medication and it clearly contradicts what the examiner said.

The effective date will always be the date of the supplemental appeal filing. For example you file a supplemental claim in June 2018 and that is denied. You file a new supplemental claim in Feb 2019 and that claim is granted the effective date will be Feb 2019. However if you are within the appeal period (1 year) I would file an appeal to the BVA. Yes you can file a supplemental claim but it will need to be with new and material evidence. If you do not have additional evidence then the recommendation would be an appeal to the BVA.

The evidence has to be new and material so if you are denied you will need to submit different evidence. When you file an appeal it is for a specific disability. The same is for an HLR. The difference is for an HLR you cannot submit new evidence.

I understand what you are saying but my supplemental claim is not an appeal but reopened claims. Since the changed the system you cannot reopen claims like you did a year ago. Now I would not have a problem with the wait if I had not had my C&P exams. The fact that I had them and it has been 75 days ago and it is still in the "gathering evidence" phase I think I may have been lost in the shuffle somehow. Here is the thing. I submitted the supplement claim on Sept 22 and they don't touch it until it has been scanned in. Once that is done things happen. My claim was scanned in on October 22 and 3 days after that I am getting called for C&P exams.

One of the issues with supplemental claims is that you cannot actually identify them as FDC's like you would a new claim. You have to rely on the VA inferring it. With a new claim you get the option to decided if it is an FDC and on top of that even if it is a normal claim you get the option to request a decision because you do not have any additional evidence to submit. We cannot do that for supplemental claims. My claim had all the necessary evidence to make a decision. 1. I submitted a separate personal lay statement for each disability claimed. I submitted this on the VA Form 21-4138 2. My wife wrote a statement for me in support of my claim also on a 21-4138 we have been together since 2009 3. My ex-wife who is a BSN wrote a statement in support of claim also on a 21-4138. This statement along with my own statement shows symptomology going all the way back to the year 2000 4. A nexus was provided for each disability claimed with diagnosis. In the necessary wording that the VA looks for. I expected C&P exams because while I provided a nexus I did not have DBQ's 5. My outside doctor provided measurements using a goniometer for all of my claims that dealt with range of motion 6. With my claim I submitted copies from my SMR's. I did not trust the VA to properly go through my records since they previously denied to claims saying they were not in my SMR's 7. I submitted current medical records that showed all current diagnosis. Especially for those disabilities I was claiming secondary to an already existing SCD. 8. I submitted the curriculum vitae of my Independent Medical Examiner. 9. I submitted a record from my pharmacy that shows all the medication that I was on. This was in conjunction with my private records that shows diagnosis and prescriptions Now with my Independent Medical Examination Report submitted I still expected C&P exams because that is something the VA loves to use even though is it clear it is not required of outside doctors. The C&P examiners was supposed to look at all the medical evidence and make a determination but in the C&P exams I received none of the doctors commented on my medical evidence. So in reality there is really no reason my supplemental claim should still be sitting in gathering evidence given all the evidence I submitted and I had my C&P exams 75 days ago.

I have called the 1-800-827-1000 a few times about my claims. It always seems the people I am talking to have a hard time finding anything. 1. Supplemental claim filed on Sept 22nd via fax with confirmation - VA website show receipt of September 25th 2. Supplemental Claim scanned in on October 22nd - Called the White House hotline on October 15th to ask for an update and was told it would be scanned in soon. 3. C&P exam was scheduled on October 23rd for November 5th. 4. C&P exam completed and uploaded into the system on November 5th 5. November 25th I called the 800 number and requested an updated. They said they were waiting for the C&P exam results. I told them that made no sense because Blue Button shows the results already uploaded. They changed their story and said it was because of the backlog 6. . On December 5th I was able to view my C&P Exam results via Blue Button. The C&P examiner flat out lied in the DBQ claimed he did things that he did not. I called the 800-827-1000 number and filed a complaint about it. They told that within a couple weeks I should hear something. Well I never did and I never expected to. So with my lack of trust with the VA a few days after I called I faxed in a letter about my concerns with the C&P exam and requested a new one. This was faxed in on December 9th and I have confirmation it was received. 7. I called 1-800-827-1000 on December 16th to get an update and was told it was in gathering evidence phase. The problem I have with this is the submitted a FDC with plenty of evidence and the exam results were already uploaded. During this call I was attempting to get updates on my HLR as well as the Supplemental claim. I was able to confirm they did receive the letter about the bad C&P exam. The person I talked had a hard time just finding the C&P exam results. I have not reached out to the VA since the last call with the exception of the IRIS request I filed on Jan 6h concerning my closed exam without notification

Update: I filed an IRIS request on Jan 6th to get an answer for the closed claims without notification. The automatic email says we normally can expect a response in 5 business days. I did not get a response so on Jan 14th (6th business day) I replied to the email they sent per the instructions and requested an update. No response. So on Jan 22nd (12th business day) I sent another reply to the request for an update. Still no response there. I am getting the feeling they are just ignoring it. My HLR is still pending and which is fine because it was submitted Dec 4th and today is only day 50 and as we all know the VA says their goal is 125 days so I will just wait and see what happens there. I am concerned about my supplemental claim though. I submitted it on September 22nd and had my C&P exam on November 5th. It was done at a VA facility and the results were uploaded that day. My first post on this thread has a brief outline of the situation. With all the information just sitting there I am baffled about this because on my normal claim it was completed 8 days after my C&P exam and that exam was with a contractor. So we are looking at 122 days and the it has been 75 days since the C&P Exam. I am going to call for an update about this one. Probably the white house line.

if you can get a DBQ filled out that will satisfy the requirement IMO. Only a medical professional can sign a DBQ (I believe) and that will satisfy the requirement.

This is why there is a need for the BVA and CAVC because the VA tends to make their own rules. However I will say this. If the VA cites the M21-1 in a decision for denial that IMO is immediate grounds for a CUE. When a rater makes a decision they have to follow all applicable laws. I have never heard of a decision where the M21-1 was cited. That does not mean they will not deny things. They will use the wording in the M21-1 as their interpretation of the law but in the end will have it overturned and case law to establish medical necessity.

In the end this is going to be overturned via the CAVC but that is a few years down the road and it sucks for vets that will now have to go through the VA crap. The biggest way to defeat this hidden rule is the DBQ. Question 2c states "Does the Veteran Require the use of a breathing assistance device such as a continous positive airway pressure (CPAP) Machine? It is a simple yes or no question. Since the Sleep Apnea DBQ is simplistic in nature I think many will be able to get their doctor to fill it out and check the necessary box. The Sleep Apnea DBQ does not have an area to provide a nexus for service connection. It is only about the diagnosis and treatment itself. If the DBQ is filled out by anyone other than a Pulmonologist and they check "No" on question 2c on appeal you need to make sure you challenge the qualifications of the C&P examiner. The VA loves to use PA's and NP's to do C&P exams and unless they have specialized training the cannot make that medical determination and not expect to be questioned about their qualifications to make such a determination. 38,000 people die a year from heart disease with sleep apnea as a complicating factor according to the American Sleep Apnea Association. I do not think there is a Pulmonologist currently practicing that will say Obstructive Sleep Apnea "Does Not" require a CPAP machine. That is a fast track to malpractice IMO.

Normally it would be assumed that using a CPAP is medically necessary. The reason for this is you can only get one via a prescription. I have Asthma and Sleep Apnea. I see a Pulmonologist for both of them for treatment. A pulmonologist is a specialist in conditions that affect the lung and respiratory tract and since Sleep Apnea is considered an upper respiratory condition you do not not have to see someone that specializes in sleep conditions only. It does not matter what the M21-1 says since it is not law. The law that pertains to sleep apnea is 38 CFR 4.97 under diagnostic code 6847 and it does not have a requirement of "medical necessary" it only says "requires use of breathing assistance device such as continuous airway pressure (CPAP) machine". A CPAP machine is used to treated the symptoms of Sleep Apnea and VA disability compensation is based on symptoms.

If you have a DBQ and/or Nexus letter from a qualified medical professional the VA cannot excluded it without a proper explanation. This explanation must be based off of a valid medical opinion.

Citations are normally issued by the BVA. They are not precedent setting decisions. Only 3 judge CAVC decisions are precedent setting.

I am trying to decide if I should call the white house line of file an IRIS claim myself. I am leaning towards filing the IRIS claim because my understanding is that is what happens when you call the white house line anyway. So here are where my claims stand. 1. In September my supplemental for Sleep Apnea and 1 other was closed. I still have not received a letter or any other type of notification about this other than it is what shows on va.gov. I am certain they are required to send me notification and by not doing so is a clear violation of 38 CFR 3.103 2. The remaining claims on that supplemental claim are still pending. I have called them twice already on this for the status. This is the exam where I had the bad C&P exam but there still should have been some kind of movement. I had the C&P exam on November 5th and 30 days later I called to request the status and was told they were waiting for exam results. Called them out on that and they said it was because of backlog. I called a couple weeks later and they were not gave me any additional information. Just stated it was still pending. I personally believe this exam should be in the hands of a rater because it is not an appeal but reopened claims with new evidence. Unlike new claims or increases I cannot request a decision because I do not have additional evidence like you can on ebenefits. 3. I also have an HLR pending for denials I received an October. Right now the status is "A senior rater is taking a new look at your case". It has been sitting in that phase for the last 3 weeks and since no evidence can be submitted it should not take a rater this long to be looking at this. I could be wrong but I have seen way too many HLR's being completed within a week or so of a senior rater looking at it. Maybe it is a good sign maybe not. Here is what I think is happening. I have several different types of claims going and I think it is just being swept away. The last time I called I asked about both my HLR and Supplemental claim and the person I spoke to was clueless and could not give me any information because in my opinion they did not know what the hell they were doing. I think with an IRIS complaint I can detail all of my concerns and have it listed where it cannot be ignored. Sure it may not make a difference but it will be on record and can be used in my appeal.

Looking at the letter I would say it is identical to what they did to me. It appears they are listing the evidence they claim to have considered but do not mention said evidence in the actual decision. It is lazy rating at it's best. The decision letter cite's the VA examiner but does not cite Dr. Anaise which is a clear violation (probably not the best term to use) Couple things I see wrong right off the top of my head. They cited 38 CFR 3.303 but clearly did not properly apply it. This regulation has 4 parts in it general, chronicity and continuity, preservice disabilities noted in service and postservice initial diagnosis of disease. Since they did not specify the actual application then the logical assumption they applied the entire thing. They did this exact same thing to me and I called it out in my HLR and pretty much demanded they show how they actually applied it. I am not going to let the just say they followed a law in a denial without showing their rationale. My HLR is still pending. The cited 38 CFR 3.304 and they clearly screwed up here by stating they applied this. In the decision they stated that your left knee tendinitis is not related to your right knee tendinitis. So to me it was clearly filed as secondary condition but they cited a law that applies to DIRECT service connection. The law they were supposed to apply in connection to this was 38 CFR 3.310 which is for "disabilities that are proximately due to, or aggravated by, service connected disability or disease" Basically a cookie cutter denial from a lazy rater.

A couple months back before I received my decision I started preparing for the appeal I knew I would be filing. That is how little faith I had in the VA caring about we the veteran. One of the things I did is I went through the entire M21-1 and documented every CAVC precedent case that the VA cited. I did this because I wanted to see what the rater was seeing. I could not understand for the life of me why so many obviously bad decisions were being handed down. I think the bottom line is that the wrong type of people are hired as raters. I think raters should have some kind of legal background. They do not need to be lawyers but I think paralegals would be a good idea. There have been more than 3500 precedent setting decisions from the CAVC since 1989. Now we need to concede that all of them are not favorable to the veteran but I have learned that in a lot of cases even though the veteran lost a case it some rules were established that assisted other veterans. The document I created has about 200 or so decisions cited in the M21-1. Considering the fact that there are more than 3500 precedent cases out there I think it is safe to assume the VA purposely left out decisions that would make it almost impossible to deny veteran claims. Case in point. I know of 14 precedent setting decisions that state the VA cannot ignore or give no weight to outside doctors without providing valid medical reasons as to why. Most of these decision are not cited by the M21. It is important that we do our due diligence to make sure we do not get screwed. I think the M21-1 is incomplete because there is too much information we veterans are finding on our own to get the benefits we deserve M21-1 Precedent setting decisions .docx

If your claim is approved the effective date will more than likely be your ITF date.

When I submitted the form I did not bother to check that I wanted a phone call. At the time I did not and to be honest still do not want the call but after reading some of you guys post I truly see the logic behind it. If my HLR is denied I am getting an attorney. I have already reached out to Hill & Ponton and once I get my letters I will hire them.