Jake206th

Well said.

So that is why you have been going back and forth with me in this thread. I get it, you have been here a long time and I need to bow to you. And discussing reasoning is the problem, and since I am discussing reasoning, I am the problem. Hey, I think we may have reached an understanding on this subject.

It appears that is what you have been doing with me in this thread already. But the chip is on my shoulder? I was just calling you out on it. Typical forum games. Good luck to you as well. I am not a lawyer, and nothing I write is legal advice, it is just how things appear to me based on my limited comprehension and understanding and therefore may not be accurate.

Exactly. And so you use your own personal experience to form your beliefs about how the VA does reexaminations and reductions and apply it "generally" ? Merriam Webster Opinion: 1. a view, judgment, or appraisal formed in the mind about a particular matter 2. belief stronger than impression and less strong than positive knowledge 3. a formal expression of judgment or advice by an expert Belief 2. something that is accepted, considered to be true, or held as an opinion : something believed 3. conviction of the truth of some statement or the reality of some being or phenomenon especially when based on examination of evidence I get that correlation doesn't prove causation, and that you can believe what you want about whatever. But when a factual audit by the OIG who are experts in this area potentially contradicts your "general" beliefs about how the VA does things, wouldn't a reasonable person think it might be worth re considering that belief ? So you are the definer of what this forum is about ? I am actually trying to help by reasoning. But maybe I am in the wrong place for that. I am not a lawyer, and nothing I write is legal advice, it is just how things appear to me based on my limited comprehension and understanding and therefore may not be accurate.

The OIG found during an audit that 37% of ordered reexaminations during a time period were unwarranted, and you think a Patient Representatives Office, or IG complaint is going to solve it? I see now this discussion is pointless. I am not a lawyer and nothing I write is legal advice. It is just how things appear to me based on my limited understanding. and I may be incorrect.

Well I guess you have "found" wrong then because this OIG audit says otherwise: The Office of Inspector General for the Department of Veterans Affairs (VA) said the Veterans Benefits Administration spent $10.1 million on unwarranted reexaminations during the March-August 2017 review period, according to a report in the Washington Post. The 19,800 cases out of 53,500 classified as unwarranted reexaminations accounted for 37 percent of total cases, or more than one-third. While the report noted that reexaminations are important for ensuring taxpayer dollars are spent appropriately, unwarranted reexaminations result in unnecessary costs for Veterans and unnecessary work for VA employees. The Office of Inspector General report found that 15,500 of those 19,800 unwarranted reexaminations – or 78 percent – did not have an appropriate pre-exam review. https://ptsdlawyers.com/va-reductions-of-disability-benefits/ Well if you don't know, now you know... Costa Raises Concern with U.S. Dept. of Veterans Affairs Over Unexplained Disability Benefits Reductions on an apparent spike in disability cuts for veterans. https://costa.house.gov/media-center/press-releases/costa-raises-concern-us-dept-veterans-affairs-over-unexplained I am not a lawyer and nothing I write is legal advice. It is just how things appear to me based on my limited understanding. and I may be incorrect.

Yep, substantial compliance. A remand by the Board or Court confers on the claimant a legal right to substantial compliance with the remand order. Donnellan v. Shinseki, 24 Vet.App. 167, 176 (2010); Dyment v. West, 13 Vet.App. 141, 147 (1999); Stegall v. West, 11 Vet.App. 268, 271 (1998). And I have read where the VA counters a Veteran's substantial compliance argument by using a harmless error argument by saying that they were substantially compliant because the error was harmless to the Veteran. Shinseki v. Sanders, 556 U.S. 396 (2009). This rule of harmless error stands for the concept that even when the BVA commits an error, if the outcome is not affected by the error -- if it does not affect a substantive right of the veteran -- the error is deemed harmless or non-prejudicial 28 U.S.C. §2111. Harmless error I am not a lawyer and nothing I write is legal advice. It is just how things appear to me based on my limited understanding. and I may be incorrect.

Federal Register VA Claims and Appeals Modernization 1-18-2019, This final rule is effective February 19, 2019. Effective Date: 02/19/2019 Document Type: Rule Document Citation: 84 FR 138 Page: 138-194 (57 pages) A commenter expressed concern that because remanded cases are no longer returned to the Board per the proposed rule, the Board will not be able to ensure that the agency of original jurisdiction complied with all remand directives, consistent with Stegall v. West, 11 Vet. App. 268, 271 (1999). The commenter urged VA to develop and implement a dedicated quality review methodology for Board remands. The design of the new system provides ample protections to ensure that subsequent adjudicators comply with the Board's remand directives. The AMA requires that any pre-decisional duty to assist error discovered by an adjudicator be cured and that the decision be readjudicated by the agency of original jurisdiction. Following readjudication, the veteran may again request Higher-Level Review, file a Supplemental Claim, or appeal to the Board. If such action is taken within one year, the original effective date will be preserved. Regarding the commenter's recommendation for dedicated quality review, the Direct Review docket, described in proposed § 20.301, captures quality feedback from appeals in which no additional evidence is added to the record. This allows VA to identify areas in which the claims process can be improved and will allow VA to develop targeted training. VA makes no changes based on these comments. I am not a lawyer and nothing I say is legal advice. It is just how it appears to me based on my limited understanding and I could be wrong.

I hear what you are saying, and that was under the legacy system. It appears the AOJ is treating those legacy board remands like AMA remands where they can get away without notifying the board that maximum benefits being sought weren't granted, like EED, causing a Veteran to loose their place in line at the board. Happened to me also so I am aware of this game. Basically if the AOJ doesn't return a remand to the board telling them that it was not fully granted, it appears that the board doesn't have jurisdiction over it to do anything. So in my case when the AOJ granted 100% and ignored the claim effective date, the board had no idea that maximum benifits being sought by the Veteran hadn't been granted. RO remand action notifications “Action by agency of original jurisdiction when remand received,” to remove the requirement that the AOJ must notify the Board as to the action it has taken on a remanded case. Prior to the Veterans Appeal Control and Locator System (VACOLS) becoming the Department's sole computer appeals tracking system, the AOJs were required to keep the Board informed of the status of Board remand cases. Such action is no longer needed, however, because VACOLS is now the sole appeals tracking system within the Department for both the Board and the AOJs, and any final action taken on a case by the AOJ will be reflected in VACOLS. It is the responsibility of the AOJs to return remanded cases to the Board that are not fully granted by the AOJ on remand. The Board does not have any jurisdiction to take further action on a remanded matter until it is returned by the AOJ. Everything is in VBMS now. I am not a lawyer and nothing I write is legal advice. It is just how things appear to me based on my limited understanding. and I may be incorrect.

Redundant post.

If you made a new claim, you opened the new claim which allows them to look at your entire record. If they claim to have found an error... then... “[O]nce the Board has jurisdiction over a claim, . . . it has the authority to address all issues related to that claim, even those not previously decided by the RO.” Jarrell v. Nicholson, 20 Vet.App. 326, 332 (2006) (en banc). I am not a lawyer and nothing I write is legal advice. It is just how things appear to me based on my limited understanding. and I may be incorrect.

Turk v. Peake, 06-0069 (Vet. App. 2008) Where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim, rather than as one for an increased rating. See Shipwash v. Brown, 8 Vet. App. 218, 225 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service-connected disability fall under the category of "original claims"). Accordingly, the Board should have classified the (…) claim as an original claim in appellate status, rather than as a freestanding claim for increased rating. However, the Secretary confuses the veteran's dissatisfaction with his initial ratings with claims for increased ratings. A claim for an increased rating is a new claim. See Suttmann v. Brown, 5 Vet. App. 127, 136 (1993) (claim for increase "based upon facts different from the prior final claim"); Proscelle v. Derwinski, 2 Vet. App. 629, 631-32 (1992) When a person appeals from an original assignment of a disability rating, the claim is treated as original because the original claim never became final. This means that keeping the claim open by appealing can enable a person to receive benefits starting with the original date of the veteran’s claim. It also means that it is not necessary to meet the “new and material evidence” standard of a reopened claim. I am not a lawyer and nothing I write is legal advice. It is just how things appear to me based on my limited understanding. and I may be incorrect.

I have noticed this problem also. And it has to do with the distinction between an original rating and a claim for an increased rating. I think the VA gets this wrong often. So much so that it had to have precedential case rulings to address it, which also didn't stop it. I am not a lawyer and nothing I write is legal advice. It is just how things appear to me based on my limited understanding. and I may be incorrect.

Of course they would never do that... Costa Raises Concern with U.S. Dept. of Veterans Affairs Over Unexplained Disability Benefits Reductions on an apparent spike in disability cuts for veterans. https://costa.house.gov/media-center/press-releases/costa-raises-concern-us-dept-veterans-affairs-over-unexplained The Office of Inspector General for the Department of Veterans Affairs (VA) said the Veterans Benefits Administration spent $10.1 million on unwarranted reexaminations during the March-August 2017 review period, according to a report in the Washington Post. The 19,800 cases out of 53,500 classified as unwarranted reexaminations accounted for 37 percent of total cases, or more than one-third. While the report noted that reexaminations are important for ensuring taxpayer dollars are spent appropriately, unwarranted reexaminations result in unnecessary costs for Veterans and unnecessary work for VA employees. The Office of Inspector General report found that 15,500 of those 19,800 unwarranted reexaminations – or 78 percent – did not have an appropriate pre-exam review. https://ptsdlawyers.com/va-reductions-of-disability-benefits/ I am not a lawyer and nothing I write is legal advice. It is just how things appear to me based on my limited understanding. and I may be incorrect.

If a Veteran files an appeal it opens the record for the VA to easily order a new medical exam > Also the Board or HLR can declare a duty to assist error which creates "new and relevent evidence" for the VA to "reconsider" your rating and order a new c&p exam > the New medical exams often contain contradicting medical opinions > which creates “competing facts”, which then have to be resolved > because competing facts could indicate a “material change”, or “improvement” of a Veterans existing disability level > which might trigger a reexamination to resolve the conflict of medical information that an exam order created > which could lead to a reduction procedure, subject to the predetermination hearing rights process. Laws and rules and their application are subject to legal interpretation and legal precedence, and the CAVC routinely gives precedential rulings that corrects how the Board is misapplying the statutes and regulations. Plus there are laws that are vague that the CAVC sometimes clarifies with precedential ruling which would also change how the laws and rules were being applied by the board and ro. Additionally the Federal register changes rules occasionally. So yes rule and law changes can and do occur. Even congress changes the statutes and laws occasionally, for example the AMA. I seem to recall that there is a thread on this forum where Berta submitted a rule change suggestion to the Federal Register during a proposed rule change session that they acknowledged or adopted, but I could be wrong. I think you are referring to: 38 CFR 3.327 Reexaminations here. And under (b) (2) of that regulation, note the words "future" and "periodic". It appears to me that "future" and "periodic" reexaminations in compensation and service connection cases are the types of reexaminations they are referring to there. It says pretty clearly that it shall not be construed as limiting the VA's authority to request reexaminations at any time. And I am not aware of any law that says that they can not order them, but if you know of one do tell. 38 CFR 3.327 Reexaminations (a)General Reexaminations, including periods of hospital observation, will be requested whenever VA determines there is a need to verify either the continued existence or the current severity of a disability. Generally, reexaminations will be required if it is likely that a disability has improved, or if evidence indicates there has been a material change in a disability or that the current rating may be incorrect. Individuals for whom reexaminations have been authorized and scheduled are required to report for such reexaminations. Paragraphs (b) and (c) of this section provide general guidelines for requesting reexaminations, but shall not be construed as limiting VA's authority to request reexaminations, or periods of hospital observation, at any time in order to ensure that a disability is accurately rated. https://www.ecfr.gov/current/title-38/chapter-I/part-3/subpart-A/subject-group-ECFR39056aee4e9ff13/section-3.327 I am not a lawyer and nothing I write is legal advice. It is just how things appear to me based on my limited understanding. and I may be incorrect.