Navy_Vet

Some attacks are more subtle than others perhaps the vet thought he hadn't overstepped. Bergman & Moore pursued a partial joint remand before consulting with me ignoring stronger issues claiming that no judge would rule favorably, but that is in light of B&M already being committed to a joint remand. After Otptum Serve's/LHI's examiner employee was a no-show, I was scheduled with a private practitioner who demanded I fill out his new patient forms as a condition of conducting an examination causing me to leave. What other unlawful demands was he going to make? B&M kept telling me that it would have been in Otptum Serve's/LHI's contract whether the examination can impose conditions of their own and CAVC would not go there, but 38 C.F.R. Section § 21.1032 makes the duty to assist unconditional, repeat "unconditional." That joint remand puts me at the mercy of BVA who originally raked me over the coals showing their bias when Otptum Serve/LHI fraudulently reported I was a no-show and VA accepted that (in order to kill three remaining six-year-old claims that have bounced several times from RO to BVA and back because RO won't complete all of BVA's requirements and after staving off an attack on a 20-year protected rating for an increase that was not claimed). Just after the remand order, and relevant to 3 new claims filed last July, RO change the claim for an increase of a current underlying disability with a favorable examination to another claim 10 years beyond a 20-year protected rating and ordered medical opinions on two new claims already with favorable examinations and one with 2 examinations already the other one was fully developed from my DVA medical record. In other words, RO is retaliating for the remand order. I imagine the Vietnam vets had it even worse when they came home and the automatic denial of Agent Orange claims, but it still feels hostile to me!

I answered "no" my question wasn't answered. I was personally attacked because I had problems with my CAVC lawyer and the attacker/poster thought I must be the problem without knowing any of the facts because in his opinion the firm is reputable and well respected. Lawyers in particular develop an ego and otherwise they NEVER make mistakes and NEVER rub their clients the wrong way! Way to go Had IT because I have HAD IT! No doubt I will be attacked for this answer. Way to go veterans!

My point--which was lost on VA and BVA.

Examination contractors often use nurse practitioners and physician assistants who require only a Master's degree and here in Michigan NP's have to be supervised and PA's must enter into a "practice agreement" with an M.D. or D.O., a form of supervision. In my opinion any clinician needing supervision is NOT qualified to render the type of opinions required in a C&P examination, at least not if their opinions are not reviewed by the supervisor.

broncovet, you are entitled to your opinion, but there is no getting around the fact that the duty to assist, which here regards C&P examinations, is unconditional after a proper and substantial claim is made and no getting around the fact that I did not violate some rule that I was never informed of, constituting good cause (, and otherwise that doesn't exist). Has anyone heard of the rule that a claimant must divulge his/her entire medical history as a condition to being examined? You too should be up in arms about this invasion of privacy! Here uncooperative includes refusing to accede to the unreasonable and unlawful demands of the examiner who probably still got paid for his lack of services. As a taxpayer I find that unnecessarily wasteful! Bergman and Moore barreled ahead without discussing its intended actions. How would you take it if your attorney pooh poohed the idea that no fraud took place at all because the term no-show also includes a (rightfully) uncooperative veteran? Somehow veterans are exempt from the protection of laws that we took an oath to "support and defend" from even domestic enemies like the VA which also includes the due process protections of the Fifth Amendment which apply to VA disability claims. 10 U.S. Code Section 502. Otherwise, I substantially completed the legal assistant (paralegal) program at a local college and I have won three (3) veterans preference cases. So I don't appreciate you suggesting I don't know what I am talking about and otherwise I provided the legal cites that you didn't bother with. Ever hear the phrase "deny deny until they die" because that is VA's strategy!

I started something here! The original LHI/OptumServe examiner was a "no-show" herself and the receptionist was deliberately insulting saying that I needed to see their psychologist who walked through the lobby while I was waiting so I walked out 40 minutes after the scheduled examination. I was rescheduled with a private sector physician and walked out when I was told that the examination was conditioned on filling out his new patient forms, I started to fill them out and became angry that I was being asked for my entire health history. LHI reported me as a "no-show" even though I complained to them and I provided an unsworn statement (28 U.S.C. § 1746(2)) to VA, an equivalent to a notarized statement under and only relevant to federal law, as to the circumstances with a copy of the forms and the fact that I appeared timely for the examination and VA still accepted LHI's no-show assertion without making its own determination pursuant to 38 CFR 3.655 and the BVA ALJ chastised me for "my" behavior implying I had to tolerate any bad behavior experienced relevant to a C&P examination making a claim determination based on the record finding no good cause to exist while strictly interpreting the law even though the regulation indicates that the reasons given are NOT exhaustive. My lawyer at Bergmann & Moore tells me that we can't pursue the fact that VA couldn't have provided permission to this private M.D. to demand my health information. I assert that I was NEVER informed that I had to comply with such requests for irrelevant information to be archived at the examination site by the examiner. I assert that VA regulations make the duty to assist, C&P examinations, unconditional after a substantially complete claim is submitted. 38 C.F.R. 21.1032. B&M puts me at the mercy of a very biased BVA when it entered a JMR (joint remand motion) based in large part on the fact that BVA failed to consider my argument that VA had (mis)diagnosed me with three (3) major personality disorders (in a 12-month period) that affected my attendance. NOT one (1) diagnosis substantially meets DSM IV or DSM 5! The above regards three (3) remaining claims first submitted 08-15-2017 that have been bouncing back and forth from RO to BVA and back because RO fails to carry out the remand order completely. An examination for a more recent claim (07-15-2023) is where I was told that VA only allows an examiner to keep a very limited amount of information (and to write down all information given). Strangely this was a second examination for the same claimed disability with another clinician in the same medical practice. Missing from the record before CAVC are ALL of the instructions from RO to the examiner for ALL of the examinations.

I have been told that a C&P examiner can retain only a limited amount of information. What information may be retained and where do I find such a rule (e.g.: "M21-1 Adjudication Procedures Manual"). Thank you in advance.