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P&t ?

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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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