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Clinical Practice Guidelines


Guest allanopie

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  • HadIt.com Elder

The VA sure is not following the guidelines for DMII. I think the VA rule is just ignore the problem until the vet files a claim or dies.

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Guest fla_viking

Dear Fellow Veterans & Friends.

Getting the clinical facts straight is the real battle ground the VA is fighting in. In the old days they could take psychotic paitents and slap on personality disorder on them and the vet would have no right to C&P examinations and the VA would ignor all other mediclal data that would support the claim.

The court of veterans claims has chastized the VA over and over again for fraudlent, indadiquite examinations. This is where the VA reallly trys to set the vets claim up for failure and this is where the vet really has to fight to keep there claims alive. There are good rulings from the court regarding examinations however the VA fudges on thoses laws all the time.

I would say all other VA delay tactics and law violations are just smoke and mirrors compared to the delibert attempts to un document a vets disablity.

To protect yourself from C&P fraud. Get a copy of your C&P orders from the VA before you go to your examination. Make sure the examination is for the right issue, Bring copys of just the information that proves your claim with a brief description of why they are important. Give a copy of them to the examiner with a brief explination to why they are important.

It was in the news that examiners were complaining there was not enough time to review our C files. We need to prove our claims by giving the examiners the information on a silver platter. It would be nice if we could be passive and the examiners would ask the right questions. Experence is showing the RO's are rigging the process by having the examiners look for the worng issues and if it is the right issue they got orders to look at. The RO gives them stupid questions to ask that are meaningless to obtaining service connecton for your injurys.

Treat your examination as a mini trial and you must prove your claim as if the examiner is a judge.

In the end even with solid eveidence before the examiner. The examiners dont belive in the VA law and will write illegal findings. Thats when independant medical examinations are helpful.

One trick the RO uses when you have a good examination and I personally experenced this. The examiner listed accuratly all my disablitys and also listed the disablitys I did not have. The RO ignored the list of problems I had and focoused on the ones I did not have and ruled because I did not have them I was not disablited enough. I appealed that is was unfair for the RO to require me to have every disablity the DM4 listed so the RO could not pick one and take away my compensation. I won that case.

Just remember what ever the RO rules. They are doing it just to agravate and confuse you. It dont get real until your at the BVA level.

Terry Higgins

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I think a lot depends on what your C & P exam is for and who performs it. A couple of exams my husband had was through one of the specialist departments. Seems everything went well, I hope. Then he had two that he was sent to the general C & P examiner for. Both of these exams were the pits. One tried to tie his claim to a medical problem which he does not have, nor has ever had. The examiner even quoted statements from a department that my husband has never been treated in. The other one, the examiner did not even write up any notes at all to send to the VARO. I can see the picture on the wall now. He will have to undergo these exams all over again. I have already sent a letter to the RO explaining everything which happened and explained how these exams were inadequate to use in deciding my husbands claim. I also stated that we did not want this examiner or his associate performing any exam which may need to be rescheduled. Of course, this leaves us with who they will set up to perform these exams.

I guess I could have waited to respond to the RO until they denied his claims based on these inadequate exams, but I thought why wait. It is just going to prolong the claims that much longer, so I went ahead and sent in the information for them to review before they had a chance to deny the claims based on these exams. Anyone have any thoughts about my doing this?

Thanks. Just another point of view on C & P exams.

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Terry- you sure tell it like it is-

"Getting the clinical facts straight is the real battle ground the VA is fighting in"

They hope they can manuveur the claim by NOT getting the facts straight-

I just read Stegall V West that Allan Opie posted-

This vet had already put years into his claim-and CAVC remanded because he still had not been given apparently- the proper C & Ps- etc-

You are right- the vet needs a copy of the pending blank C & P and then needs to get the VA write-up of it-

as soon as possible-after it is over.

I still feel we claimants should have copies of C & P results attached by the VA to any denial letter which based on that C & P.

But they are counting on many vets out there who never get the actual results.

A blank C & P can be a helpful guide for any doctor who is asked to give an Independent medical opinion too-

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I am a big supporter of civilian treatment. You can always submit a civilian examination instead of going to a C&P and even if they don't accept the civilian examination you will have a better grounds to argue against any pending C&P outcome. My wife uses one of the best pscyhiatrists in the country (has several world-wide awards and specializes in PTSD and anxiety disorders).....RO will have a very tough time refuting her treating doctor's report over a psychologist/NP report from a 30 minute C&P:-) Sure it costs us $200 every two months, but I consider it an investment.

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As far as getting copies of your C & P exam results ASAP after the exam, I did that for my husband's claim. When I looked at the report, I was floored. As I stated before, I wrote a letter and disputed everything that was in the report and backed it up with the documentation to show the dispute. When I took this to the RO, they wanted to know how I was able to get a copy of the C & P exam prior to a decision by the RO. I told them that we went to Release of Information and requested it. He didn't sound happy about this. He stated that since I had the report already and issued this with my complaints to the RO prior to a decision being made, (using this inadequate report) that it could possibly hold up his claim further. I then told him that all I was trying to do was bring to light an inadequate exam before a final decision and that I felt that by doing so I was saving time by not getting a denial that was pretty evident and then having to submit what I had just given them.

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  • HadIt.com Elder

Jay

In my experience not going to a C&P exam is a sure way to have a claim denied.

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  • HadIt.com Elder

MSS

About a year ago, or a little more, the VA changed their own Manual to require that C&P Reports were NOT released to the Veteran BEFORE they were "finalized" by the RO. As is normal with the VA, the word never got to the VAMC in many cases, and they have still been releasing copies.

I think you will find in future, that the VAMC cannot release them to you, the VARO will, eventually, after they have had a chance to tell the examiner what they want changed in the report.

I had a post on the old board when this first became VA policy, because Manila VARO jumped on it immediately, and put it into effect.

John999

You will find that it is not only personal experience that validates that, it is actually VA policy, since 38 CFR says:

§ 3.655 Failure to report for Department of Veterans Affairs examination.

(a) General. When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (:) or © of this section as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. For purposes of this section, the terms examination and reexamination include periods of hospital observation when required by VA.

(B) Original or reopened claim, or claim for increase. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.

© Running award. (1) When a claimant fails to report for a reexamination and the issue is continuing entitlement, VA shall issue a pretermination notice advising the payee that payment for the disability or disabilities for which the reexamination was scheduled will be discontinued or, if a minimum evaluation is established in part 4 of this title or there is an evaluation protected under § 3.951(B) of this part, reduced to the lower evaluation. Such notice shall also include the prospective date of discontinuance or reduction, the reason therefor and a statement of the claimant's procedural and appellate rights. The claimant shall be allowed 60 days to indicate his or her willingness to report for a reexamination or to present evidence that payment for the disability or disabilities for which the reexamination was scheduled should not be discontinued or reduced.

(2) If there is no response within 60 days, or if the evidence submitted does not establish continued entitlement, payment for such disability or disabilities shall be discontinued or reduced as of the date indicated in the pretermination notice or the date of last payment, whichever is later.

(3) If notice is received that the claimant is willing to report for a reexamination before payment has been discontinued or reduced, action to adjust payment shall be deferred. The reexamination shall be rescheduled and the claimant notified that failure to report for the rescheduled examination shall be cause for immediate discontinuance or reduction of payment. When a claimant fails to report for such rescheduled examination, payment shall be reduced or discontinued as of the date of last payment and shall not be further adjusted until a VA examination has been conducted and the report reviewed.

(4) If within 30 days of a pretermination notice issued under paragraph ©(1) of this section the claimant requests a hearing, action to adjust payment shall be deferred as set forth in § 3.105(h)(1) of this part. If a hearing is requested more than 30 days after such pretermination notice but before the proposed date of discontinuance or reduction, a hearing shall be scheduled, but payment shall nevertheless be discontinued or reduced as of the date proposed in the pretermination notice or date of last payment, whichever is later, unless information is presented which warrants a different determination. When the claimant has also expressed willingness to report for an examination, however, the provisions of paragraph ©(3) of this section shall apply.

Source

[55 FR 49521, Nov. 29, 1990; 58 FR 46865, Sept. 3, 1993]

Notes

(38 U.S.C. 501)

CROSS REFERENCES: Procedural due process and appellate rights. See § 3.103. Examinations. See § 3.326. Reexaminations. See § 3.327. Resumption of rating when veteran subsequently reports for VA examination. See § 3.330.

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Jay

In my experience not going to a C&P exam is a sure way to have a claim denied.

Why are you telling me this? I didn't say anything about refusing a C&P exam.......I said one should use a civilian examination in lieu of a C&P exam. I went on to say that "even if they don't accept the civilian examination you will have a better grounds to argue against any pending C&P outcome. "

The regs are quite clear and you can give an IMO in place of a C&P (doesn't mean they MUST accept it though).

Here's the regulation:

3.326 Examinations.

For purposes of this section, the term examination includes periods of hospital observation when required by VA.

(a) Where there is a claim for disability compensation or pension but medical evidence accompanying the claim is not adequate for rating purposes, a Department of Veterans Affairs examination will be authorized. This paragraph applies to original and reopened claims as well as claims for increase submitted by a veteran, surviving spouse, parent, or child. Individuals for whom an examination has been scheduled are required to report for the examination.

(b) Provided that it is otherwise adequate for rating purposes, any hospital report, or any examination report, from any government or private institution may be accepted for rating a claim without further examination. However, monetary benefits to a former prisoner of war will not be denied unless the claimant has been offered a complete physical examination conducted at a Department of Veterans Affairs hospital or outpatient clinic.

P.S. - Honestly, what's with everyone beating on me?

Edited by Jay Johnson
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  • HadIt.com Elder

Jay

I am not beating on you, buddy. I am just saying that if you try and avoid the C&P exam process you have a good chance of having your claim denied. A friend of mine who had very good documentation told the VA to just go with his civilian medical in lieu of a C&P exam. He was denied. A few month later when he finally went for the C&P exam he got 100%. You just have to figure that if the VA is going to award benefits they want their own doctors to take a look at you. It is mostly the same with SSA.

I know the C&P exam process is pretty horrible. I have had at least ten C&P exams over the years. I jus think you erect a barrier to winning your claim when you decline a C&P exam. This is my opinion and not the last word on the subject. Some here have begged for C&P exams to win their claims and the denial of providing a C&P was the cheif reason for denial of the claim (Terry Higgins).

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Jay

I am not beating on you, buddy. I am just saying that if you try and avoid the C&P exam process you have a good chance of having your claim denied. A friend of mine who had very good documentation told the VA to just go with his civilian medical in lieu of a C&P exam. He was denied. A few month later when he finally went for the C&P exam he got 100%. You just have to figure that if the VA is going to award benefits they want their own doctors to take a look at you. It is mostly the same with SSA.

I know the C&P exam process is pretty horrible. I have had at least ten C&P exams over the years. I jus think you erect a barrier to winning your claim when you decline a C&P exam. This is my opinion and not the last word on the subject. Some here have begged for C&P exams to win their claims and the denial of providing a C&P was the cheif reason for denial of the claim (Terry Higgins).

By no means do I advocate NOT going to a scheduled C&P exam, but I believe, quite strongly, that one should use a civilian treating doctor and "attempt" to use the treating doctor's exam in lieu of a C&P. The reason most civilian reports are not accepted is because you need a doctor who is willing to do a thorough report in the VA's language. *If* the VA will not accept the civilian report then report to your C&P as ordered and use the civilian report for reasonable doubt should the VA choose the C&P over the treating doctor's examination.

Again, I am saying that one should use a civilian doctor rather then a VA one and submit said doctor's thorough evaluation a month or so before a scheduled C&P exam.....if the RO will not accept the report then go to the C&P as scheduled, but fight it all the way.

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  • HadIt.com Elder

Actually, if you are going to get an IMO, then the best use for it, if you have a C&P scheduled, is to give a copy of it to the medical 'person' doing the C&P.

If they are lesser qualified than the IMO doctor, (usual case) they are VERY unlikely to go against it.

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