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Duty To Assist? Is This Still Required?


10thFO

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I had the reg for VHA Directive 2000-29 which was the directive mandating that VA dr's had to give a written opinion if asked on your disability effects on employability and such. I noticed in my research to print said directive out that it expired in November of 2005. Is there a new Reg ?

I've got an appointment with my PTSD psych on Thursday and was going to request that she give me this, as I'm getting ready to finally follow through with my TDIU. I was SC with PTSD at 50% in the spring of '05. I have yet to NOD or CUE as I had a claim in Voc Rehab, and they want my dr's to state on my employability. I'm 70% total with PTSD and DDD.

Currently I'm in a lurch financially and need some good advice on which route to go that will get me the money the fastest. I need to file for an increase now, as DDD and Nueropathy have worsened and I have MRI's and EEG tests to prove this. I don't know whether to NOD, or file for an Increase, or just file for TDIU. My SO is an idiot so I need to have all this stuff layed out when I take it to the VARO. I'm gonna give my SO a copy, but the VARO is only 30 minutes from my house, so I'm dropping it off their as well. I stopped by Voc. Rehab today and saw my counselor, who would never return my calls for 4 weeks, and she told me that she thought I was already getting TDIU, and that's why she hadn't done anything with my file.

Ughhhhhhhh. These people are gonna kill me yet. I really need to get a statement from my Psych though as the lady that did the testing for Voc Rehab, outside contractor, told me that she didn't think I was employable but she was sending for letters from my docs. Evidently she didn't or they didn't respond. I plan on using the Psychs statement at the same time this week when I apply for SSDI.

Edited by 10thFO (see edit history)
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10thFO: You write, "I'm in a lurch financially and need some good advice on which route to go that will get me the money the fastest"

Probably given the record of the VA verses SSDI claims awards, your best route would probably be the SSDI claim. You should provide all the evidence of your VAMC records, your C-File, any Medications you are taking and their side effects, any Records from Privet Dr's or Psychologists or Psychiatrists, personal statements from friends and family that are clsoe to you, of course about what they have observed that effect your daily living and how you relate with others. If they should ask for additional information or clarification, don't hesitate to do so, even if it is only the latest visits to your VA DR's or Psychatrist. I would also let it be known that you are also asking the VA for a TDIU claim and if for some miricle you should be approved for TDIU, I would get that award letter to the SSDI claims officer as soon as possible.

Otherwise you can use the award for SSDI to help your claim for TDIU.

Good Luck

Jim S. B)

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10th FO-

I am using this directive to try to get a local vet an opinion-

I wrote a letter for him to give to his doctors for a linkage but so far- he has been turned down by two VA doctors- one said they didn't want to do it, they felt uncomfortable with it and the other doc said he was not allowed to give a vet a med opinion-

well this vet has two more VA doctors to go-

however I am waiting a call from his vet rep- might have to meet him there today-

we need the vet rep to check out a few other things- he might not even need the med opinion---but

I have found nothing whatsoever that extends this reg or prohibits this reg from continuing so I am still going by what it says-

It is also spelled out in addition to the VCAA of 2000 as an additional directive

If anyone wants to copy and attach President Clinton's actual press sec report on the VCAA and Duty to Assist dated Nov 9,2000 it is at:

http://harrisonheritage.com/adbc/benefits5.htm

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Guest Namvet6567

I know the original was extended, once and I'm thinking it was until 2006 or 2007, but I'm not sure. Haven't been able to locate the original VHA Directive 2000-29, on the web yet.

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  • HadIt.com Elder

http://www1.va.gov/vhapublications/index.cfm

Department of Veterans Affairs

VHA DIRECTIVE 2000-029

Veterans Health Administration

Washington, DC 20420

September 22, 2000

PROVISION OF MEDICAL OPINIONS BY VA HEALTH CARE PRACTITIONERS

1. PURPOSE: This Veterans Health Administration (VHA) Directive establishes nationwide policy requiring VHA health care providers, when requested, and under certain limited circumstances, to provide descriptive statements and opinions for Department of Veterans Affairs (VA) patients with respect to patients’ medical condition, employability, and degree of disability.

2. BACKGROUND: This policy rescinds all restrictions on VA physicians and other medical practitioners, defined in M-1, Part I, Chapter 9, section 9.50. Restrictions on the ability of VA health care providers to provide statements and opinions for VA patients are inconsistent with the goal of VHA to provide comprehensive care and place a serious burden on veterans who depend on VHA for their care. This policy must, however, be implemented in a way that avoids inappropriate VHA participation in the claims adjudication process that determines eligibility for VA disability benefits. It is anticipated that this policy area will be the subject of future notice and comment rulemaking.

3. POLICY: It is VHA policy to remove restrictions on the ability of VA health care providers to provide statements and opinions for VA patients.

4. ACTION: Medical facility Directors are to implement this directive immediately. Use the following guidelines:

a. Support by Treating VA Practitioners of VA Benefits Claims

(1) Veteran patients may request descriptive statements regarding their medical conditions and/or opinions concerning the “possible cause(s)” of an existing medical condition for VA disability claims purposes. VHA health care providers shall provide a statement or opinion describing a patient’s medical condition. If the health care provider is the veteran’s treating physician, and is unable, or deems it inappropriate, to provide an opinion or statement, such physician shall refer the veteran’s request to another health care provider for the opinion or statement.

NOTE: For purposes of this policy, a note in the consolidated health record containing a statement such as, “in my medical opinion the currently existing medical condition is ‘related to,’ ‘possibly related to,’ or ‘at least as likely as not related to’ an injury, disease, or event occurring during the veteran’s military service” constitutes a sufficient supportive statement. The injury, disease, or event can be something described by the veteran or shown in other records, but should be identified as such by the health care practitioner in the health care practitioner’s statement. A statement to the effect of, “I am unable to determine whether a relationship exists” between the present disability and a described injury, disease, or event occurring during military service, is also acceptable.

(2) When providing medical statements and opinions, the veteran patient must be informed that decisions concerning VA compensation and/or pension benefits are:

(a) Decided by VA regional office adjudication officials based upon the law, regulations, and the totality of medical evidence pertaining to the disability claimed, and

(b) Not controlled by the physician providing the veteran’s care or the medical facility furnishing treatment.

b. Medical Opinions for Non-VA Purposes. Veterans may also ask VA health care professionals for medical opinions to assist them in filing claims with other agencies, e.g., the Social Security Administration (SSA). These opinions may be provided in the same manner and under the same restrictions as opinions furnished for Veterans Benefits Administration (VBA) claims processing purposes. NOTE: This does not include completion of Social Security Administration (SSA) forms for examinations where SSA would pay a private practitioner, but is prohibited from paying other Federal agencies such as VA (see Title 38 Code of Federal Regulations (CFR) 17.38 (a)(1)(xiv)).

c. Requirement for Disclaimer. In all instances involving VA determinations, the veteran patient must be asked to sign a statement indicating the veteran’s understanding that the opinions of the VA physician do not constitute an official VA determination of service connection, degree of disability, or eligibility for VA benefits. The disclaimer documented below is being added to VA Form 10-5345, Request for and Consent to Release of Medical Records Protected by Title 38 United States Code (U.S.C.) 7332, to facilitate its use. In the meantime, for releases of information covered by this directive, incorporate a statement like the following, signed by the veteran, in the Consolidated Health Record:

“I understand that the VA health care practitioner’s opinions and statements are not

official VA decisions regarding whether I will receive other VA benefits or, if I receive

VA benefits, their amount. They may, however, be considered with other evidence when

these decisions are made at a VA Regional Office that specializes in benefit decisions.”

5. REFERENCE: None.

6. FOLLOW-UP RESPONSIBILITY: The Office of Patient Care Services, Forensic Medicine Strategic Healthcare Group (11F) is responsible for the contents of this directive.

7. RESCISSIONS: M-1, Part I, Chapter 9, section 9.50 and VHA Directive 98-052 are rescinded.

This VHA Directive expires September 31, 2005.

S/ Frances Murphy, M.D. for

Thomas L. Garthwaite, M.D.

Under Secretary for Health

DISTRIBUTION:

CO:

E-mailed 9/22/2000

FLD:

VISN, MA, DO, OC, OCRO, and 200 - FAX 9/22/2000

EX:

Boxes 104, 88, 63, 60, 54, 52, 47 and 44 - FAX 9/22/2000

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Guest Namvet6567

Wings, I found something on the web that states VHA Directive 98-052 was essentially codified but unable to find where. I'm thinking probably in VCAA 2000.

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  • HadIt.com Elder
Wings, how do I find historical directives?? That link only goes back to 2001. I'm looking for VHA Directive 98-052. Thanx!

I e-mailed them at VHAPubsManagers@hq.med.va.gov <VHAPubsManagers@hq.med.va.gov> and asked for a copy of VHA Directive 98-052. I'll let you know. I also asked how I'd find "historical directives". HUGS!!

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  • HadIt.com Elder

----- Original Message -----

From: Lynch, Sherwin C

To: Silver Wings

Sent: Wednesday, January 18, 2006 9:01 AM

Subject: RE: Historical Directives

From: "Lynch, Sherwin C" <sherwin.c.lynch@va.gov>

Attached is the requested directive. For future reference, launch the Publication website at <http://www1.va.gov/vhapublications/> and click on "Archives." Do a search on either the number or title of the document. After the title of the document appears, just click on it to bring the document in view.

My Response: Thank you! I went to the website at http://www1.va.gov/vhapublications/ and could not find the "archives". Can you send me a live link to the archives? Thanks again.

Veterans Health Administration

Washington, DC 20420 November 18, 1998

MODIFICATION OF RESTRICTIONS ON VA PHYSICIANS TO PROVIDE OPINIONS FOR VA PATIENTS

1. PURPOSE: This Veterans Health Administration (VHA) Directive establishes nationwide policy permitting VHA healthcare providers, when requested, to express opinions and to complete forms for Department of Veterans Affairs (VA) patients with respect to patients’ health, employability, degree of disability, and requirements for licensing such as for the operation of motor vehicles.

2. POLICY: This new policy modifies the restrictions on VA physicians defined in M-1, Part I, Chapter 9, section 9.50. Restrictions on the ability of VA healthcare providers to express opinions and to complete forms for VA patients are inconsistent with the goal of VHA to provide comprehensive care and place a serious burden on veterans who depend on VHA for their care. The new policy must, however, be implemented in a way that avoids conflict and ambiguity with the role of VHA in the official process that determines eligibility and the extent of disability for purposes of VA claims adjudication.

3. ACTION: Medical center Directors will implement this policy change immediately.

a. Medical Opinions and Form Completion for Non-VA Purposes. Veterans may ask VA healthcare professionals to assist in completing forms that require a medical professional's opinion. Examples of these forms include but are not limited to:

(1) Family Medical Leave Act forms.

(2) Life insurance application forms.

(3) Social Security Disability forms.

(4) Department of Education forms for loan repayment exemptions based on disability.

(5) Non-VA disability retirement program forms.

b. Support by Treating VA Physicians of VA Benefits Claims. Veteran patients may request statements and/or opinions concerning their medical condition from their personal physician to support their claims for VA compensation or pension. VHA healthcare providers may now provide such opinions concerning the patient's medical condition. The veteran patient must be informed that decisions concerning VA compensation and/or pension benefits are:

(1) Decided by VA regional office rating specialists based upon the law, regulations and the totality of medical evidence pertaining to the disability claimed, and

(2) Not controlled by the physician providing their care or the medical facility furnishing treatment.

c. Requirement for Disclaimer. In all instances, whether for VA or non-VA based applications, the veteran patient must be asked to sign a statement indicating the veteran’s understanding that the opinions of the treating VA physician do not constitute an official VA determination of service connection, degree of disability, or eligibility for VA benefits. The disclaimer documented below is being added to VA Form 10-5345, Request for and Consent to Release of Medical Records Protected by 38 U.S.C. 7332, to facilitate its use. In the meantime for releases of information covered by this directive, incorporate a statement like the following, signed by the veteran, in the Consolidated Health Record:

I understand that my VA doctor’s opinions are not "official" VA decisions regarding whether or not I will get other VA benefits. They may, however, be considered with other evidence when these decisions are made at a VA Regional Office that specializes in benefit decisions.

4. REFERENCE: None.

5. FOLLOW-UP RESPONSIBILITY: The Office of Patient Care Services, Forensic Medicine Strategic Healthcare Group (11F) is responsible for the contents of this directive.

6. RESCISSION: This VHA Directive expires September 30, 1999, and may not be extended.

S/ by Thomas Garthwaite, M.D. for

Kenneth W. Kizer, M.D., M.P.H.

Under Secretary for Health

DISTRIBUTION: CO: E-mailed 11/20/98

FLD: VISN, MA, DO, OC, OCRO, and 200 - FAX 11/20/98

EX: Boxes 104, 88, 63, 60, 54, 52, 47 and 44 – FAX 11/20/98

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  • HadIt.com Elder
Wings, I found something on the web that states VHA Directive 98-052 was essentially codified but unable to find where. I'm thinking probably in VCAA 2000.

Namvet, I'm sure I read about this in the Federal Register. What is the question exactly, I'm kinda lost LOL! I can search congressional legislation if you tell me the search terms! ~Wings

Edited by Wings (see edit history)
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  • HadIt.com Elder

[Federal Register: August 29, 2001 (Volume 66, Number 168)]

[Rules and Regulations]

[Page 45620-45632]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr29au01-25]

[[Page 45620]]

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AK69

Duty To Assist

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

-snip-

(4) Providing medical examinations or obtaining medical opinions.

(i) In a claim for disability compensation, VA will provide a medical

examination or obtain a medical opinion based upon a review of the

evidence of record if VA determines it is necessary to decide the

claim. A medical examination or medical opinion is necessary if the

information and evidence of record does not contain sufficient

competent medical evidence to decide the claim, but:

(A) Contains competent lay or medical evidence of a current

diagnosed disability or persistent or recurrent symptoms of disability;

(B) Establishes that the veteran suffered an event, injury or

disease in service, or has a disease or symptoms of a disease listed in

Sec. 3.309, Sec. 3.313, Sec. 3.316, and Sec. 3.317 manifesting during

an applicable presumptive period provided the claimant has the required

service or triggering event to qualify for that presumption; and

( C) Indicates that the claimed disability or symptoms may be

associated with the established event, injury, or disease in service or

with another service-connected disability.

(ii) Paragraph (4)(i)© could be satisfied by competent evidence

showing post-service treatment for a condition, or other possible

association with military service.

(iii) Paragraph ©(4) applies to a claim to reopen a finally

adjudicated claim only if new and material evidence is presented or

secured. (Authority: 38 U.S.C. 5103A(d))

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

[Federal Register: July 23, 2001 (Volume 66, Number 141)]

[Rules and Regulations]

[Page 38158-38159]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr23jy01-17]

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 20

RIN 2900-AK52

Rules of Practice: Medical Opinions From the Veterans Health

Administration

AGENCY: Department of Veterans Affairs.

ACTION: Interim final rule with request for comments.

SUMMARY: This document amends the Department of Veterans Affairs' (VA)

Appeals Regulations to clarify that the Board of Veterans' Appeals

(Board) may obtain medical opinions from health care professionals in

VA's Veterans Health Administration.

DATES: Effective Date: This interim final rule is effective July 23, 2001.

Comment Date: Comments must be received on or before September 21,

2001.

ADDRESSES: Mail or hand-deliver written comments to: Director, Office of Regulations Management (02D), Department of Veterans Affairs, 810 Vermont Ave., NW., Room 1154, Washington, DC 20420;

or fax comments to (202) 273-9289; or e-mail comments to OGCRegulations@mail.va.gov.

PART 20--BOARD OF VETERANS' APPEALS: RULES OF PRACTICE

Section 20.901(a) is revised to read as follows:

Sec. 20.901 Rule 901. Medical opinions and opinions of the General

Counsel.

(a) Opinion from the Veterans Health Administration. The Board may

obtain a medical opinion from an appropriate health care professional

in the Veterans Health Administration of the Department of Veterans

Affairs on medical questions involved in the consideration of an appeal

when, in its judgment, such medical expertise is needed for equitable

disposition of an appeal. (Authority: 38 U.S.C. 5107(a))

Edited by Wings (see edit history)
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