"thorough And Contemporaneous" C & P Exam

[vaf 4]

I don't know how to best explain this, but here goes:

1. My husband appealed an initial rating of two separate disabling conditions in

1994. His initial date of claim was August 1993. These conditions were deemed

service connected, it's the percentage we are appealing.

2. These were remanded by the Board back to the VARO in 2001 and 2003. In October

2005, the Board remanded these same claims to the AMC for the first time, and

in March 2008 for the second time, without a decision.

3. My husband has received several C & P exams for both conditions between 1994

and 2003, however, the VARO never issued a decision during that time.

4. In August 2006, unrelated to the two disabling conditions discussed in #1

above, my husband was awarded 100% schedular rating, P & T, effective July

2003. We are seeking a 100% schedular rating effective upon his initial date

of claim with the two conditions discussed in #1, which is August 1993.

5. The most recent remand in March 2008 forced us to file a Writ of Mandamus with

the Court in April 2008. We asked for an immediate rating decision based on

the evidence already accumulated in the claims file.

6. On May 1,2008 the Court ordered the AMC to provide an update within 30 days.

7. The AMC issued a status report, saying that the claims file was at the VAOGC's

office regarding a separate Court appeal, and that the AMC would develop the

claim as soon as the claims file was returned.

8. The Court found the status report lacking in detail, and on June 19, 2008, gave

the AMC another 30 days to respond with a more specific update.

9. The AMC responded with a chronological record that mostly described delays

among the VARO, the Board, the AMC, and the VA OGC regarding the transfer of my

husband's claims file. The AMC indicated that my husband's other Court case

pending (unrelated to this one) was the sole reason for the delays since

October 2005. No discussion took place regarding the delays that occurred

during the period between 1994 and 2005. The AMC added that they were now in

possession of the claims file and would develop the claim as soon as possible.

10. My husband received a letter yesterday from the AMC stating that he would be

hearing from the local VAMC regarding a C & P exam to be scheduled for the

disabling conditions discussed in #1.

11. Today, July 30, 2008, the Court ordered that the AMC provide another status

report on this remand within 30 days.

Question: 38 CFR states that a C & P exam is to be "thorough and contemporaneous." How can a current-day C & P exam be considered "contemporaneous" but applied retroactively to a period over ten years ago? I don't understand how an exam conducted in 2008 can determine the extent of a veterans's disability from 1993 to July 2003. Can someone direct me to a court case or some precedent decision that I can use to challenge this C & P order?

[Pete53 0]

It can't the C&P is another stalling technique. What would happen if you asked the court to require the VA to decide the isssue that you want done and not something that they have dreamed up hoping that you will go away.

Good Luck

[Berta 4,215]

I commend you again for getting the Court to honor the Writ-

Mandamus writs are denied 98 % of the time (if not 99%)

The OGC ?

Does your husband have a FTCA matter?(malpractice?)

I had stuff at the OGC but at the same time 2 claims in progress at the VARO-

One claim hinged on the FTCA matter I had-

but even after the OGC FTCA was resolved the RO denied one of the claims again (Sec 1151) and I had to call the General COunsel to get them to straighten it out.

My point is that if there is an OGC matter pending -this should not be holding up the other claims-

has the VA stated that it is contingent to the other claims?

This concerns me as to what you are saying here-

because-

I have 2 other matters pending now at the VA OGC and spoke to the VA attorney Tuesday-

the attorney asked me if I was fully complying with any deadlines whatsoever on my pending VA claims and not depending on the OGC matter to be instrumental in their resolve.

I assured this attorney I have been very proactive in making sure I have done all I can to get the RO to read my medical evidence,for my AO death claim,

and also that my I-9 on another matter is being sent in this week-in plenty of time-

Obviously the OGC matter your husband has should not be impacting on the RO or the AMC-

it could in the long run- but with limited info here on that-I dont see why it would stall a proper resolve of the claims-

and as the VA OGC attorney told me, they dont want me to wait for my OGC matter to be resolved without fully continuing to support my RO claims-

and past experience I had showed me these were two separate VA entities and each had their own job to do-

Have you considered or already sent to VA an Independent Medical Opinion?

[vaf 4]

Thanks for responding and good morning!

No, there's no FTCA suit involved.

The OGC got involved for two reasons. First, my husband has four Court appeals on record. Two are closed (first one dated 5/9/01, the second dated 11/8/05). We have a separate Court appeal currently pending dated 3/27/08 that is unrelated to the writ request. We filed the Writ of Mandamus request to the Court on 4/22/08 regarding a remand that involved two claims appeals that were first appealed at the VARO in 1994, were Board remanded back to the VARO in March 2001, again in June 2003 (without action), and then again to the AMC in October 2005 and again in March 2008 -- we filed the writ request in April 2008.

The AMC is telling Judge Lance at the Court that the Court appeals over the years have required that the VAOGC receive the claims file to prepare the VA's case (I guess for Designation of Record?). This reportedly prevented the VARO from developing the remanded claim because the claims file was elsewhere (like I said, there was no discussion regarding what prevented the VARO from making a decision from 1994 through 2000). Now, the AMC is telling the Judge that the claims file was with the VAOGC due to the fact that a mandamus writ request was filed, thus again preventing the AMC from developing the remand in a timely fashion. They just recently received the claims file back, and that's about when my husband received notice from the AMC that they will ask the local VARO to schedule a C & P exam I discussed earlier in this thread.

We've sent a letter to Judge Lance asking how an exam that is required to be thorough and contemporaneous according to 38 CFR can be applied retroactively to the initial appeal date of the initial rating for these two conditions, over ten years ago.

We already sent an IMO in, the conditions are already service-connected, we are arguing percentages, and also the fact that they neglected to issue a separate initial rating for a severe abdominal scar that resulted from several service connected surgeries.

[Berta 4,215]

Yes -this is a good point you raised and I recalled after I replied that you had an IMO.

GEEEEEEZ why is it that some of us have so many rigamorales with the VA?

When I look at my past claims- it took them years to do what could have taken months- and that was before the big backlog

But my problems were nothing compared to this long standing claim-that your husband has-

The CAVC web site:

http://search.vetapp.gov/search/ has many cases that include "thorough and contemporaneous exam"

but I see exactly what you mean- dont know if there are any cases there that would help you but Webster's Dictionary would ,in order to rebutt their idea with this type of exam-and the definition on contemporaneous-

it doesnt make sense-regarding the past ratings

Edited July 31, 2008 by Berta

[Berta 4,215]

Maybe this would help -did the VA leave this part out?

"the fulfillment of

the duty to assist requires a "thorough and contemporaneous" medical

examination that considers the veteran's prior medical examinations and

treatment to complete the record. Green v. Derwinski, 1 Vet.App. 121, 124 "

This is how the CAVC tied this exam in with the veteran's past medical evidence.

No. 01-2137

Tonya J. Cartwright, Appellant,

v.

Anthony J. Principi,

USCAVC