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P&t ?


SLEDGE

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Greetings Comrades,

I'm 80 percent for PTSD and TDIU with P&T.

I have 3 more rated disabilities.

I have been scheduled for another PTSD C&P.

It's an 'outside the VA' hired gun again.

This examiner has examined me twice before.

One negative opinion and one favorable opinion.

The negative opinion was penned without an examination of the vets records.

The positive opinion came after the same examiner READ THE FILES.

Basically, the examiner could not have given a valid opinion the first time because my records were not reviewed prior to the examination.

By the VA standards that we all know and trust,

the first exam does not count.

The second exam does count.

So, With only one [proper examination] by the VA my PTSD claim was granted.

How about the 6 or 8 private examiners that the VA sent me to over the years?

To a man they all say the same thing, Chronic PTSD, Service Connected.

I can't wait for the rest of my records to become unclassified.

I'm actually a combat related vet with service connected PTSD, but I can't prove it [yet].

I wish somebody at the VA would pull their head out.

sledge

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Greetings Comrades,

I'm 80 percent for PTSD and TDIU with P&T.

I have 3 more rated disabilities.

I have been scheduled for another PTSD C&P.

It's an 'outside the VA' hired gun again.

This examiner has examined me twice before.

One negative opinion and one favorable opinion.

The negative opinion was penned without an examination of the vets records.

The positive opinion came after the same examiner READ THE FILES.

Basically, the examiner could not have given a valid opinion the first time because my records were not reviewed prior to the examination.

By the VA standards that we all know and trust,

the first exam does not count.

The second exam does count.

So, With only one [proper examination] by the VA my PTSD claim was granted.

How about the 6 or 8 private examiners that the VA sent me to over the years?

To a man they all say the same thing, Chronic PTSD, Service Connected.

I can't wait for the rest of my records to become unclassified.

I'm actually a combat related vet with service connected PTSD, but I can't prove it [yet].

I wish somebody at the VA would pull their head out.

sledge

Are you rated for pension or compensation? If it's compensation then the VA cannot order you to a C&P exam unless you ask for something related to your PTSD or present new evidence to them to suggest that you are better. Here's the reg. that deals with reexaminations -

§ 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 © 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.

(Authority: 38 U.S.C. 501)

(B) Compensation cases—(1) Scheduling reexaminations. Assignment of a prestabilization rating requires reexamination within the second 6 months period following separation from service. Following initial Department of Veterans Affairs examination, or any scheduled future or other examination, reexamination, if in order, will be scheduled within not less than 2 years nor more than 5 years within the judgment of the rating board, unless another time period is elsewhere specified.

(2) No periodic future examinations will be requested. In service-connected cases, no periodic reexamination will be scheduled: (i) When the disability is established as static;

(ii) When the findings and symptoms are shown by examinations scheduled in paragraph (B)(2)(i) of this section or other examinations and hospital reports to have persisted without material improvement for a period of 5 years or more;

(iii) Where the disability from disease is permanent in character and of such nature that there is no likelihood of improvement;

(iv) In cases of veterans over 55 years of age, except under unusual circumstances;

(v) When the rating is a prescribed scheduled minimum rating; or

(vi) Where a combined disability evaluation would not be affected if the future examination should result in reduced evaluation for one or more conditions.

© Pension cases. In nonservice-connected cases in which the permanent total disability has been confirmed by reexamination or by the history of the case, or with obviously static disabilities, further reexaminations will not generally be requested. In other cases further examination will not be requested routinely and will be accomplished only if considered necessary based upon the particular facts of the individual case. In the cases of veterans over 55 years of age, reexamination will be requested only under unusual circumstances.

As you can tell, there is some wiggle room in pension cases, but there is NO wiggle room in compensation cases...if you're P&T and they schedule you for an exam fight it all the way

P.S. - I believe there is a erg that states you have 1 year to attend a C&P exam once one is requested, so you have a lot of room to argue if need be (I'll have to look this one up later:-).

Edited by Jay Johnson
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  • HadIt.com Elder

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.

(Authority: 38 U.S.C. 501)

( b ) Compensation cases—

(1) Scheduling reexaminations. Assignment of a prestabilization rating requires reexamination within the second 6 months period following separation from service. Following initial Department of Veterans Affairs examination, or any scheduled future or other examination, reexamination, if in order, will be scheduled within not less than 2 years nor more than 5 years within the judgment of the rating board, unless another time period is elsewhere specified.

(2) No periodic future examinations will be requested. In service-connected cases, no periodic reexamination will be scheduled:

(i) When the disability is established as static;

(ii) When the findings and symptoms are shown by examinations scheduled in paragraph ( b )(2)(i) of this section or other examinations and hospital reports to have persisted without material improvement for a period of 5 years or more;

(iii) Where the disability from disease is permanent in character and of such nature that there is no likelihood of improvement;

(iv) In cases of veterans over 55 years of age, except under unusual circumstances;

(v) When the rating is a prescribed scheduled minimum rating; or

(vi) Where a combined disability evaluation would not be affected if the future examination should result in reduced evaluation for one or more conditions.

This is from the 29 November, 2005 version of 38CFR. Emphasis added!

What I see here is some questions;

How long have you had the same PTSD rating?

Have you had the same PTSD rating for 5 years or more?

Has any competent doctor stated that there is no likelihood of improvement?

Are you more than 55 years old?

Even then, there is still nothing that I read in this paragraph that actually precludes the VA from demanding another C&P.

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Few points: First, in order to qualify for P&T you must be considered to be chronically ill (IE - "( B) Permanent total disability. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person." ) and your condition must be static, so both are met with a P&T rating. Secondly, the exemption portion you highlighted seems to refer to the VA's ability to order an examination, not to order periodic reexaminations. There are stipulations within title 38 that allow the VA to reopen a P&T claim and order a C&P, but these reasons are also fairly concrete. If this individual has not provided the VA with any new information and/or the VA has no reason to assume this individual may have gotten better then they cannot order an examination.

With that said, discretion can always be used by the VA to supersede a lot of otherwise concrete regulations, but the VA must give cause for such use of discretion beyond the fact that they want to reduce a veteran. If nothing else this veteran should seek an answer as to why the RO is ordering a C&P exam and, if no reason is given, then there is basis to argue that 3.327 was violated.

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  • HadIt.com Elder

Jay,

You are reading things into the regulation that are NOT there, at least not in the paragraph we were talking about. If you want to make statements from other parts of the regulation, then stipulate where they are coming from.

Since the paragraph heading is "Re-examination", I fail to see where you get the opinion that it is talking about anything else.

In Government regulations, the paragraph heading is it! Everything that follows, within that paragraph, is subordinate to the heading. The commonest mistake that people make in reading these regulations, is forgetting that basic fact.

You CANNOT extract a small clause or sub-paragraph and cite it on its' own, as a statement of fact. It will not stand up.

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I agree with Walter-

and another thing- the worse case scenario is if a vet felt they did not have to report to a C & P and failed to show up-

I was reading a BVA claim this AM-

The VARO had denied a higher rating on the veteran's hearing loss.

The veteran appealed this and also provided the VA with an independent medical opinion.

He failed however to show up for a VA Audio C & P Exam without good cause (he felt he didn't need to because he had the IMO)and his claim was denied at the BVA.

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1.11 SCHEDULING REVIEW EXAMINATIONS

Base the dates of review examinations on the facts and circumstances in each case; however, schedule the examination as far in the future as possible, preferably five years from the date of the last (or initial) VA examination. Consider whether the veteran's current condition is an acute exacerbation or whether the veteran is still recuperating following hospitalization. Consider whether improvement or recovery can be anticipated. If not, do not schedule a future review examination. Medical evidence from any of the sources listed in 38 CFR 3.326© may satisfy the need for reexamination.

a. Compensation Cases. Exercise prudent judgment and refer to 38 CFR 3.327(B) in determining the need for reexamination. For information on scheduling review examinations following periods of convalescence, see chapter 10.

I am not directing anyone to "not show up" for an examination; rather, I am trying to inform this veteran of his/her rights under the law. The assertion that the secratary has the authority to ask for an examination at any time for no reason is flatly false and you are reading to much into one line of one regulation that deals with a multitude of issues. Going by your thoughts no regulation has any concrete value because the secretary is afforded discretion over ANY regulation on the book and can rewrite said regulations at his/her discretion...obviously this isn't the case. The secretary must justify any discretionary act by showing just cause and the CoVA has the right to supersede the secretary's actions if it can find cause that the secretary was going against other laws (VA or otherwise) or against the assumed will of congress. This is evident in many cases in many different governmental organizations....just because the secretary has 10 billion in discretionary funding doesn't mean he/she can by a 100 million dollar boat. The secretary must show proper justification, under the law, for any discretionary spending.

In this particular case, a RO must find cause to use discretion in order to reopen a claim. A rater cannot simply open a claim that is P&T because he/she feels the need to review it. One of several points must be established in order to justify reopening a P&T claim: 1) The prior decision was made in error...... This is quite difficult as it conlficts with CUE regulations and regulations pertaining to difference of opinion. 2) New material evidence....There is more discretion involved in this because of the ambiguos nature surrouning "new evidence". In other words, if a vet asks for a review of a seperate issues(not the one rated for P&T) and that evidence even hints to a possible change in the prior P&T evaluation the rater can reopen a claim (this is where discretion is justified). 3) A claim filed by the veteran dealing with the P&T disability....this one is self-explanitory.

I have spent countless hours trying to find an actual definition as to what exactly discretion means on the secretary's behalf, but was not able to find anything that specific. What I was able to find is many court cases dealing with discretion in general and that discretion is far from absolute. Basically, discretion, by law, must be backed up by something that causes discretion to be used. Example - A cop cannot search your car for no reason, but is given broad discretion to do so if just cause can be found (IE - he sees you hide something under the seat, or he sees what looks like drugs on the floor, etc). The secretary of the VA cannot excersize discretion without just cause....in order to find just cause there must be SOMETHING to trigger it (in this case, one of the 3 things mentioned above). In a P&T claim, one cannot be reduced without new, material evidence which shows improvement under normal life conditions. 3.343 is a very tough regulation to get around and an examination, ordered by the RO, must show that the veteran no longer meets the requirement of P&T, or, at the very least, shows some just cause for assuming a condition may no longer be "static". Anything short of this would be a misuse of discretion on the RO's part and I would take steps to fight the RO for ordering the reexamination.

What this comes down to is whether or not veterans are going to continue to allow the VA (RO in particular) to misuse its authority. There is no reason why a veteran who has been determined permanently disabled should undergo routine examinations and/or any examination unless there is just cause for doing so. If the RO believes that veteran's condition is no longer static then a reexamination to determine permanence should be done, otherwise, the veteran's claim should not be touched. This is both a matter of common sense and, I believe, a case in which congress' intent is not being followed. Either the VARO's need to be more judicious in their finding for permanence or the designation of permanent should be changed or taken off the books.

This "(B) Permanent total disability. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person." , is in direct conflict with the discretionary powers you are quoting in 3.327. The secretary cannot ignore his/her own regulations and one cannot justify examinations for a condition that is supposed to last for the remainder of the veterans lifetime.

Edited by Jay Johnson
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  • HadIt.com Elder

Jay

Citing a para. number is hardly a valid reference. I would like to know where you found this, since it is NOT in 38 USC; 38CFR; M-1; M21; or even M21Rev.

You also appear to be overly optimistic about the honesty, and willingness to comply with rules and regulations, of the average RO/DRO: or to take in account how long it will take to progress through BVA and COVA, before you will get a lawyer who can get the VA to follow its' own regulations.

I hate to keep harping on this, but PLEASE, don't be so adamant in your posts. The one thing that I can absolutely GUARANTEE, is that more often than not, the VARO will do what they want to, not what the rules and regulations specify.

It is good to see veterans/spouses reading and applying the rules, but as an example, I have a clear case of the VARO ignoring 38CFR, Chap 4 codes, easily proven by the regulation. I have appealed it on a Form 9, because I have exhausted all local expedients. It has now been sitting at VARO for 18 months, and I still have NO notification that it will ever go to the BVA.

Nothing that I try, seems to have any effect on these local idiots.

Keep on Jay, but temper your enthusiasm with a little cynicism, where the VARO is concerned.

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Jay

Citing a para. number is hardly a valid reference. I would like to know where you found this, since it is NOT in 38 USC; 38CFR; M-1; M21; or even M21Rev.

You also appear to be overly optimistic about the honesty, and willingness to comply with rules and regulations, of the average RO/DRO: or to take in account how long it will take to progress through BVA and COVA, before you will get a lawyer who can get the VA to follow its' own regulations.

I hate to keep harping on this, but PLEASE, don't be so adamant in your posts. The one thing that I can absolutely GUARANTEE, is that more often than not, the VARO will do what they want to, not what the rules and regulations specify.

It is good to see veterans/spouses reading and applying the rules, but as an example, I have a clear case of the VARO ignoring 38CFR, Chap 4 codes, easily proven by the regulation. I have appealed it on a Form 9, because I have exhausted all local expedients. It has now been sitting at VARO for 18 months, and I still have NO notification that it will ever go to the BVA.

Nothing that I try, seems to have any effect on these local idiots.

Keep on Jay, but temper your enthusiasm with a little cynicism, where the VARO is concerned.

The first quote, if that's what you're refering to, is from M-21. As for cynicism, I am as cynical as anyone else and I have said many, many times that the VARO often does not follow regulations.

My first response to this thread was "As you can tell, there is some wiggle room in pension cases, but there is NO wiggle room in compensation cases...if you're P&T and they schedule you for an exam fight it all the way " . I made it clear from the beginning that one should expect this to be a long fight...I did not imply that if the veteran quotes the regulations I posted that they would automatically win their claim (in fact I'm sure the VARO will ignore it). My basic point in this thread is that P&T means NO FUTURE EXAMS and I have heard several incodents where the VARO's have tried to issue reexaminations for people with P&T without cause (including a CUE I have in at the moment for my wife). The RO is clearly exceeding its authority in these cases and the vets that are affected SHOULD fight it every step of the way.

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The first quote, if that's what you're refering to, is from M-21. As for cynicism, I am as cynical as anyone else and I have said many, many times that the VARO often does not follow regulations.

My first response to this thread was "As you can tell, there is some wiggle room in pension cases, but there is NO wiggle room in compensation cases...if you're P&T and they schedule you for an exam fight it all the way " . I made it clear from the beginning that one should expect this to be a long fight...I did not imply that if the veteran quotes the regulations I posted that they would automatically win their claim (in fact I'm sure the VARO will ignore it). My basic point in this thread is that P&T means NO FUTURE EXAMS and I have heard several incodents where the VARO's have tried to issue reexaminations for people with P&T without cause (including a CUE I have in at the moment for my wife). The RO is clearly exceeding its authority in these cases and the vets that are affected SHOULD fight it every step of the way.

WOW,

that's more than I expected!

I'll try to fill in the blanks so you guys can be more specific in your answers.

"Are you rated for pension or compensation?"

Compensation.

"How long have you had the same PTSD rating?"

3 years.

Have you had the same PTSD rating for 5 years or more?

No changes since the award, 10-2003 / retro of one year.

Has any competent doctor stated that there is no likelihood of improvement?

Yes.

Are you more than 55 years old?

54.

"The RO is clearly exceeding its authority in these cases and the vets that are affected SHOULD fight it every step of the way."

If anyone wishes to examine my records for examples of VARO Dirty Tricks we can set up an appointment in St. Louis.

The RO has lied, lost my records, rewritten my records, ignored my records and has sent me on several wild-goose-chases.

Of late, my MRI has been cancelled, unknown reason why.

(I have several service-connected physical problems.)

My medications are being cancelled again.

(OH Well)

This new exam is actually the second one that the RO has scheduled for me that's related to P&T PTSD.

The first exam was a cluster, if you know what I mean.

"the worse case scenario is if a vet felt they did not have to report to a C & P and failed to show up-"

I always present myself to the examining agency at the specified time and place.

What are we supposed to do when the RO schedules a C&P on a day that the specialty involved is not around?

And, then denies the claim because the vet did not get examined at the appointed time and place.

Or, x-rays are ordered but not taken.

The doctor goes home while ya sit in the x-ray waiting room.

The actions of the RO have been consistently against me and they use every illegal trick in the book to deny my claims.

My claim was awarded by the Tiger Team in Washington, not by the RO in St. Louis.

The RO has scheduled the new exam for THEIR OWN REASONS.

I feel that the RO can't stand to have a case pulled out from under them and awarded behind their backs.

Before the award the RO was just getting started messing with my new lawyer.

Some records that the RO should already have are being sought by my lawyer at this time.

The court will not take my case because the RO and BVA have not 'ARTICULATED' their reasons for denying my claims. (12 years retro are due but not received)

(Anytime they want to they can pick up the ball and go home.)

By not telling us 'WHY' the RO has effectively, constructively shut down my appeal.

My lawyer filed an NOD.

The SSOC is still not here after 2 years.

It is at the discretion of the Secretary -- not the courts or the claimant.

Isn't this fun?

Where is Zorro when ya need him?

sledge

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WOW,

that's more than I expected!

I'll try to fill in the blanks so you guys can be more specific in your answers.

"Are you rated for pension or compensation?"

Compensation.

"How long have you had the same PTSD rating?"

3 years.

Have you had the same PTSD rating for 5 years or more?

No changes since the award, 10-2003 / retro of one year.

Has any competent doctor stated that there is no likelihood of improvement?

Yes.

Are you more than 55 years old?

54.

"The RO is clearly exceeding its authority in these cases and the vets that are affected SHOULD fight it every step of the way."

If anyone wishes to examine my records for examples of VARO Dirty Tricks we can set up an appointment in St. Louis.

The RO has lied, lost my records, rewritten my records, ignored my records and has sent me on several wild-goose-chases.

Of late, my MRI has been cancelled, unknown reason why.

(I have several service-connected physical problems.)

My medications are being cancelled again.

(OH Well)

This new exam is actually the second one that the RO has scheduled for me that's related to P&T PTSD.

The first exam was a cluster, if you know what I mean.

"the worse case scenario is if a vet felt they did not have to report to a C & P and failed to show up-"

I always present myself to the examining agency at the specified time and place.

What are we supposed to do when the RO schedules a C&P on a day that the specialty involved is not around?

And, then denies the claim because the vet did not get examined at the appointed time and place.

Or, x-rays are ordered but not taken.

The doctor goes home while ya sit in the x-ray waiting room.

The actions of the RO have been consistently against me and they use every illegal trick in the book to deny my claims.

My claim was awarded by the Tiger Team in Washington, not by the RO in St. Louis.

The RO has scheduled the new exam for THEIR OWN REASONS.

I feel that the RO can't stand to have a case pulled out from under them and awarded behind their backs.

Before the award the RO was just getting started messing with my new lawyer.

Some records that the RO should already have are being sought by my lawyer at this time.

The court will not take my case because the RO and BVA have not 'ARTICULATED' their reasons for denying my claims. (12 years retro are due but not received)

(Anytime they want to they can pick up the ball and go home.)

By not telling us 'WHY' the RO has effectively, constructively shut down my appeal.

My lawyer filed an NOD.

The SSOC is still not here after 2 years.

It is at the discretion of the Secretary -- not the courts or the claimant.

Isn't this fun?

Where is Zorro when ya need him?

sledge

It's sounds like you're still doing a lot of work on your claim, which gives the RO more lattitude to order C&Ps:-( The RO shouldn't order a C&P for a P&T case without having some reason to review your file....this doesn't mean they have the right to order you to a C&P exam, but I'm sure they will try to justify it by something you have sent them or the appeals you are trying to get through.

I wish there was more I could suggest other then the typical, "call your senator/lawyer/VA secretary/etc", but I'm sure you have and it's gotten you nowhere. I guess you could try a real civilian lawyer because your case is, from the same of it, beyond the BVA stage, but lawyers tend to be just as useless as SOs when it comes to vet issues.

P.S. - If you give more specifics about what exactly the BVA is denying and why, one of us may be able to suggest a course of action like CUE, but I don't really know enough at this point to recommend one.

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  • HadIt.com Elder

Jay

Stretch is a perfect example of what I am talking about.

The VARO can do just about anything they feel like doing, if they are so inclined. Some are like that, some are not. I think it depends basically on two people: The VARO Director, who sets the tone; or the SCM if the Director is laissez-faire, or abdicates his responsibility.

You can try every legal avenue in the book, and they can still screw over you. You can't even hire a lawyer, until you get past the BVA, and it is easy for them to delay that for years and years.

Sometimes the ONLY thing you can do, is to find a VARO that is more honest, and move there. Even then, some VARO's will refuse to forward your records, until they have finished processing any claims or appeals you have started at their VARO.

The problem is that honest, caring people find it difficult to believe the lengths to which dishonest, self centered, uncaring people will go, to push their agenda, and to mess up people within their authority.

You've learnt how bad and useless GWB is, figure that every Director/SCM at the VA is just as bad.

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Again, I completely understand just how much power these idiots have and what lengths they will go to to deny claims (even if it means ignoring their own regulations), but this doesn't mean that we shouldn't point out that what the RO's are doing is wrong, nor should it preclude members of hadit from telling others to fight it.

I stand by what I said 100%...the RO CANNOT order reexaminations for P&T cases without sufficient cause. This doesn't mean they don't or won't order said examinations, but it is clearly against both the current regulations and, more importantly, congress' intent. As I have suggested all along, if a veteran is P&T and the RO schedules an examination for NO REASON, then said vet should fight it all the way (even before the scheduled exam)...this doesn't mean the RO will change its mind, nor does it guarantee victory upon appeal, but to suggest that a vet should throw their hands up because it's "just the RO doing what it always does" just doesn't sound right with me.

With that said - The reason the RO's are the way they are is due to two factors:

1) There is no oversight of the secretary of the VA. Even the CoVA is VERY limited in what it can and cannot do to a BVA decision.

2) The regulations are written by the VA for the VA. VA regs need to be far more concrete and binding and the VA should not be able to change any regulations without congressional hearings.

My plan for fixing this problem - Congress needs to step in and take control of the VA. Essentially, the VA is part of the executive branch without the normal controls that come with legislative oversight. The president should only have the power to appoint the members of the VA and congress should be in direct control of the regulations (IE - legislation).

Congress should also take a few steps to ensure fair treatment of veterans:

1) Congress should rewrite the regulations in a manor which is most beneficial to the veteran and not the veteran's association.

2) The regulations should be written in stone. The secretary will have no ability to change any regulations without congressional consent and can only propose changes ONE regulation at a time (so that the secretary, or any one congressman, cannot sneak in changes in large rewrite bills). Any changes proposed should be given proper hearings and public oversight (the legislative branch was the only true democratic branch of our government for a reason).

3) Judicial oversight should focus on congress' intent rather then the "secretary's" interpretation.

4) The discretion of the secretary should be limited to matters which "benefit" the veteran and not the VA (to use this thread, the secretary should not be able to use discretion in an attempt to "lower" a veteran...only to "raise" the level of compensation). Also, discretion should be very limited in benefit's issues in general. Being that the VA is an executive organization, the secretary should have broad discretion pertaining to administrative issues like budget, employees, infrastructure, etc, but should not be able to use discretion in a means that supersedes the intent of congress (IE - regulations pertaining to benefits).

Until the system is overhauled to provide better oversight/management, as I have suggested, the VA will continue to treat veterans as lying criminals out to steal government money.

My two cents......

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Guys,

Ya can't say both ways in the same reply.

ie: They can't, But they will anyway.

This here is not new,

"I stand by what I said 100%...the RO CANNOT order reexaminations for P&T cases without sufficient cause.

"They can't, But they will anyway."

BTW, I'm naturally sarcastic and abrasive, don't take it personally.

I believe we have to find a champion for our cause before anything substantial takes place.

There are a few good guys and gals in congress but not enough.

We have several new vet's orgs that know what they are doing, most of the time anyway, but they are swamped with the regular stuff.

Somebody with enough cash to finance an overhaul of the stupid stuff needs to step forward.

I'm still waiting on my retro, no help here.

Ya'll may not like any of Hanoi Jane's friends and I don't either.

So who was left on the ballot the last time?

I was not excited over either dude myself but, I'm a Nam vet.

Kerry sucks. Pure politician!

Don't try to change me cause I can't remember where I stand from one day to the next.

Floggin a dead horse.

I got a copy of my next appointments today.

The PTSD exam is listed as a C&P.

Yes hon, I'm still P&T.

The RO normally sends us to more exams so the new exams can function as a fishing trip.

If the examiner opines in our favor we get yet another exam.

This crap can go on for 12 more years cause I have many more opinions in my favor than the RO has in theirs.

I can get 6 more exams before the judicial weight is balanced. (equipoise)

At 2 years between new exams that's 12 more years before the RO has me beat.

And they will never articulate their reasons for denial because that would let the court come in and bail me out.

I do have a lawyer on my team.

His help got us the favorable decision in the first place after the DAV refused to help me because my file is too big. (Life Member)

So far the government has paid him over 10 grand in fees for his help, help before I could legally hire him.

Paying him for his time is much less costly than paying my retro.

Don't ya just love how this works?

Screw the vet, nobody cares, what's the big deal?

My lawyer has quoted chapter and verse in the NOD's that we have filed.

No answer.

sledge

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Guys,

Ya can't say both ways in the same reply.

ie: They can't, But they will anyway.

This here is not new,

"I stand by what I said 100%...the RO CANNOT order reexaminations for P&T cases without sufficient cause.

"They can't, But they will anyway."

BTW, I'm naturally sarcastic and abrasive, don't take it personally.

Actually you can and it happens all the time in the VA and in life in general. A cop cannot beat someone without cause, nor can they shoot someone unless they can prove their life is in danger, but they do all the time and get away with it for the most part. If a law forbids someone from doing something then they CANNOT do it "under the law", but when you deal with people who ignore law and uphold lower decisions in a sort of "good 'ole boys society" then what cannot be done is done anyway.

The RO cannot order you to a C&P exam for your P&T PTSD without a reason. Now, either they will make a reason up (like citing evidence from a seperate issue that you provided them) or they will just ignore the regulations and hope they stand up in court.

The reason I am so passionate about this issue is that it is a VERY profound one to ALL veterans with P&T. The accepted thought on P&T is once you get, provided you leave the RO alone, you will not be bothered again. The RO's are exceeeding their authority by issuing C&Ps, but they know that you have to attend them even if they break the rules (plus they anticipate that any appeal you make about the C&P will take years)......after you attend them and provide them with new evidence it really doesn't matter if they broke the regulation or not because you're dealing with "new and material evidence". It is a catch 22 that needs to be stopped before it becomes common-place in the VA.

Unforetunately, the only way to stop this is to get someone with power on your side to force the VA back into line on this particular subject. We need a SO to step up or a senator to take action.

Few extra points:

1) If one assumes that the RO can ignore the regulations regarding P&T and reexaminations then they can also ignore the regulations regarding reasonable doubt and can easily take away your rating regardless of how many favorable opinions you have (not out of the norm for those people). This is why we need to draw a line in the sand. P&T means your disorder is of a PERMANENT nature....it defies all common sense (and regulation) to order periodic exams for something that is static in nature. Either the RO needs to remove your P&T status or honor...they can't have it both ways.

2) You mentioned several other problems you have...what are they and what are the ratings? Are you sure your PTSD is P&T or could another disorder be P&T? Just because you are P&T for say a physical injury does not mean that your PTSD is static as well (nor does it mean that your PTSD could be high enough to be P&T).

3) Have you contacted the Ro and sentors, SO, etc about the exams in particular and cited the regulations behind reexaminations and P&T? If so, what are the responses?

Please keep me posted...not only do I care deeply about this topic for veterans in general, but my wife is P&T with an exmanination scheduled for 2007 (I am at the DRO level AND I have a CUE filed on the matter...also have a sentor working on it along with a congressman). I can't use a lawyer yet because I have not exhausted appeals.

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The RO normally sends us to more exams so the new exams can function as a fishing trip.

If the examiner opines in our favor we get yet another exam.

This crap can go on for 12 more years cause I have many more opinions in my favor than the RO has in theirs.

I can get 6 more exams before the judicial weight is balanced. (equipoise)

At 2 years between new exams that's 12 more years before the RO has me beat.

And they will never articulate their reasons for denial because that would let the court come in and bail me out.

sledge

That really isn't the way the system works, nor how the 5 yr rule is applied. The RO only needs two exams to prove you have "sustained" improvement and to justify lowering you. The 5yr rule only protect you against any ONE exam showing material improvement......if one exam confirms a prior exam then they have established sustained improvement. Of course that ignores the laws behind TDIU and several other factors, but it isn't as simple as 6 in your favor and 5 against you......you can have 15yrs of ratings in your favor and have your compensation revoked in a matter of months (a C&P that shows improvement followed by another a few months later that shows sustained improvement).

P.S. - The VA is supposed to schedule future exams at least two years in the future, but, like with reexaminations and P&T, if they can show cause to order one earlier they can and will. (hell, they'll order one without cause)

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That really isn't the way the system works, nor how the 5 yr rule is applied. The RO only needs two exams to prove you have "sustained" improvement and to justify lowering you. The 5yr rule only protect you against any ONE exam showing material improvement......if one exam confirms a prior exam then they have established sustained improvement. Of course that ignores the laws behind TDIU and several other factors, but it isn't as simple as 6 in your favor and 5 against you......you can have 15yrs of ratings in your favor and have your compensation revoked in a matter of months (a C&P that shows improvement followed by another a few months later that shows sustained improvement).

P.S. - The VA is supposed to schedule future exams at least two years in the future, but, like with reexaminations and P&T, if they can show cause to order one earlier they can and will. (hell, they'll order one without cause)

HMMMMM,

"3) Have you contacted the Ro and sentors, SO, etc about the exams in particular and cited the regulations behind reexaminations and P&T? If so, what are the responses?)

I say again,

My lawyer is in on this crap and nobody knows why I need to have a C&P.

All of the appropriate rules, regulations, statutes and examples have been cited in the NOD.

The RO, DAV and my elected reps have no intentions of helping me.

In fact they are against me, all of them!

They all said so to my ear.

Cut me some slack guys.

"That really isn't the way the system works"

DUH?

Everybody here knows how the VA system is supposed to work/help vets.

And equally how the VA system does not help us.

"2) You mentioned several other problems you have...what are they and what are the ratings? Are you sure your PTSD is P&T or could another disorder be P&T?"

High Blood Pressure, Residuals of a leg injury and Fibromyalgia, all at 10%.

The PTSD is the only one rated as P&T. (PTSD is 80% schedular)

I have an NOD in on the effective date of the PTSD award.

I filed it in 1990 and continuesly prosecuted the claim until the Tiger Team awarded it in 2002.

The Tiger Team placed all of my claims in the directly service connected status.

They sited that the evidence of my various disabilities existing goes back to my service.

Chronic while in the service and continuously chronic afterwards.

Why would I need to be examined to determine if the condition existed earlier than the 2002 rating states?

VA says 2002, Tiger Team says 1972 (while inservice) and SSA says 1993.

My records say 1970 (while inservice).

By the way,

I was never informed of my appeal rights until fairly recently.

The actual date of becoming informed isn't important because it came 'after' all of the denials.

After the formation of judicial review in 1988.

According to the CAVC, a complete lack of appeals information, to be supplied by the RO to the Veteran claimant, is grounds to vacate a decision.

That means all of my effective dates are the earliest dates that I filed each claim, but only since 1988.

Now that I'm completely confused, how are you catching this stuff?

sledge

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Guest Namvet6567

Sledge - it is impossible to have an 80% rating for PTSD. PTSD/mental disorders are rated 0%, 10%, 30%, 50%, 70% or 100%.

HMMMMM,

"3) Have you contacted the Ro and sentors, SO, etc about the exams in particular and cited the regulations behind reexaminations and P&T? If so, what are the responses?)

I say again,

My lawyer is in on this crap and nobody knows why I need to have a C&P.

All of the appropriate rules, regulations, statutes and examples have been cited in the NOD.

The RO, DAV and my elected reps have no intentions of helping me.

In fact they are against me, all of them!

They all said so to my ear.

Cut me some slack guys.

"That really isn't the way the system works"

DUH?

Everybody here knows how the VA system is supposed to work/help vets.

And equally how the VA system does not help us.

"2) You mentioned several other problems you have...what are they and what are the ratings? Are you sure your PTSD is P&T or could another disorder be P&T?"

High Blood Pressure, Residuals of a leg injury and Fibromyalgia, all at 10%.

The PTSD is the only one rated as P&T. (PTSD is 80% schedular)

I have an NOD in on the effective date of the PTSD award.

I filed it in 1990 and continuesly prosecuted the claim until the Tiger Team awarded it in 2002.

The Tiger Team placed all of my claims in the directly service connected status.

They sited that the evidence of my various disabilities existing goes back to my service.

Chronic while in the service and continuously chronic afterwards.

Why would I need to be examined to determine if the condition existed earlier than the 2002 rating states?

VA says 2002, Tiger Team says 1972 (while inservice) and SSA says 1993.

My records say 1970 (while inservice).

By the way,

I was never informed of my appeal rights until fairly recently.

The actual date of becoming informed isn't important because it came 'after' all of the denials.

After the formation of judicial review in 1988.

According to the CAVC, a complete lack of appeals information, to be supplied by the RO to the Veteran claimant, is grounds to vacate a decision.

That means all of my effective dates are the earliest dates that I filed each claim, but only since 1988.

Now that I'm completely confused, how are you catching this stuff?

sledge

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Namvet,

I have no control over the ratings or the numerical percentages.

Given the RO's past track record I would not be surprised to see a rating of 75% and have to wait 5 years to see if the number is rounded up or down.

I have nothing to gain by bad-mouthing the RO.

It's just that in my case the RO jerks know exactly what they are doing and to what vet they are doing it to.

Why else would they change a highly respected expert opinion so that the opinion would become a negative piece of evidence instead of a positive?

6 times?

Another one 4 times?

Another one twice?

Another 8, one examiner at a time.

Why have I not been sent to a 'doctor' for a C&P examination of the vet the last 4 times?

Or to an examiner who at least knows how to spell the disease that the vet is supposed to have, or not?

That last clown asked me if I knew the procedures and findings because he had NEVER examined ANYONE for that disease? (Fibromyalgia)

I already had a 10% rating for Fibromyalgia before that exam based upon an examination by a specialist in 1995, specialist means 'doctor'.

I'll betcha the 10% gets dropped to zero as the result of that last C&P.

I'll give you 5 to one odds.

At the very least the last examination will cause another 2 years delay in the adjudication of my claims.

Then another 5 years waiting for the RO or the Board to 'articulate' the reasons and basis for the denial.

I have read where others here have stated that the RO people do not have the time or the inclination to single out 'certain' vets for mistreatment during the protracted adjudication procedure.

OK!

But I have seen the 'notes' that they leave for each other in my c-file.

They sent them to me twice.

sledge

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Namvet is probably correct...my guess is that you are 80% combined schedular and not 80% PTSD (it's 70% and 100%, nothing inbetween). It seems to me that you are still in the process of NOD'n your PTSD claim, which gives the RO more latitude to order C&Ps and it sounds like they have indeed targeted you for a potential reduction (yes, I do believe RO's single people out if they can smell blood in the water).

To be honest, you are fairly safe in that you are TDIU and P&T. My advice would simply be to establish a GOOD civilian psychiatrist with excellent credentials and use this psych for primary, recurring treatment. Continue what you are doing and keep excellent records...I believe you are safe as long as you don't start working or something:-)

P.S. - What are the reasons behind them denying an earlier SC date and what is your proof that you deserve said date? (I ask because I am wondering if a CUE may be in order, but you would have to show some sort of regulation violation and not merely a difference of opinion)

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Namvet is probably correct...my guess is that you are 80% combined schedular and not 80% PTSD (it's 70% and 100%, nothing inbetween). It seems to me that you are still in the process of NOD'n your PTSD claim, which gives the RO more latitude to order C&Ps and it sounds like they have indeed targeted you for a potential reduction (yes, I do believe RO's single people out if they can smell blood in the water).

To be honest, you are fairly safe in that you are TDIU and P&T. My advice would simply be to establish a GOOD civilian psychiatrist with excellent credentials and use this psych for primary, recurring treatment. Continue what you are doing and keep excellent records...I believe you are safe as long as you don't start working or something:-)

P.S. - What are the reasons behind them denying an earlier SC date and what is your proof that you deserve said date? (I ask because I am wondering if a CUE may be in order, but you would have to show some sort of regulation violation and not merely a difference of opinion)

I put some of the info in the CUR post reply started by fla viking.

My quote below,

"What would a cue claim look like if the VARO mentions the records but does not 'discuss' them?

An example from my case,

The VARO was asked to get my SSA Disability file in 1996.

SSA had sited fibromyalgia and PTSD together as totally disabling in 1993.

(No changes since then)

The RO has mentioned my SSA file but never discussed why the 1993 dates do not apply in the VA claim.

1993 was also the year that I started getting outside opinions.

The RO has mentioned several of them but never explained why the information did not apply.

They mentioned them in 2002.

My win's Effective Date is 03, 2002.

THE COURT has remanded my effective date claim because of the lack of explanations."

Your question,

"It seems to me that you are still in the process of NOD'n your PTSD claim, which gives the RO more latitude to order C&Ps and it sounds like they have indeed targeted you for a potential reduction (yes, I do believe RO's single people out if they can smell blood in the water)."

None of the particulars of my win, Diagnosis or degree of disability, are being contested by me.

The continuing claim, or NOD, is on the 'effective date' ONLY.

The Tiger Team awarded the claim based upon the entire record.

They threw out some of the more obvious RO BS in their award.

They connected my PTSD to certain events that happened to me in 1971 and 1972 and 1973 and 1974.

Death, Destruction and Abandonment.

They sited a continuous trail of PTSD symptoms from the time period of my service to the 'current date'.

They mentioned the fact that I have several other ratable disabilities that are yet to be service connected.

(Fibromyalgia has been awarded 10% since then) .

Have you seen the TV show called, "I should have died" ??

I missed some real good opportunities to croak and they were not accidents.

The Tiger Team made the award but left the effective date up to the RO.

By the law and my records I should have been 50% in 1985 and 100% in 1990.

What the hey, it's only my reputation, sanity, dignity and self esteem.

sledge

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