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Sec. 3.326 Examinations.


allan
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[Code of Federal Regulations]

[Title 38, Volume 1]

[Revised as of July 1, 2008]

From the U.S. Government Printing Office via GPO Access

[CITE: 38CFR3.326]

[Page 249] TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS PART 3_ADJUDICATION--Table of Contents Subpart A_Pension, Compensation, and Dependency and Indemnity Compensation

Sec. 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.

© Provided that it is otherwise adequate for rating purposes, a statement from a private physician may be accepted for rating a claim without further examination.(Authority: 38 U.S.C. 5107(a)) Cross Reference: Failure to report for VA examination. See Sec. 3.655.[60 FR 52864, Oct. 11, 1995, as amended at 66 FR 45632, Aug. 29, 2001]http://edocket.access.gpo.gov/cfr_2008/julqtr/38cfr3.326.htm

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I have interstitial lung scarring from gunsmoke, asbestos pipe covering,breathing dust, fungus, animal droppings etc, arthritis and degenterative disc from sleeping in mud & snow. I submitted xrays and reports from Private doctors and the U.S. Civil service medical board all have declared me totally disabled and I have not worked for many years. I am a former Combat Medic with three battle stars and filed for compensation. The Arizona Regional Office refused and denied me a medical exam and the claims were denied. I filed a complaint and the answer given from Arizona Regional Office for denying exam and compensation is there is no record in the service medical records....Wow!!! The National Records states there are NO MEDICAL RECORDS as they were destroyed by fire in St. Louis, MO in 1973. There are no xray machines at Battallion Aid Station and for back ache, head ache, stomach ache etc. APC's and get back to your fox hole is standard rule. Combat medicine and hospital medicine are ahem!!! different. I have been refused and denied-----What can I do??? Or what should I do??? Any help or input is really appreciated. Should I just give up?? Am I just wasting my time?

1s1j5z4

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I have interstitial lung scarring from gunsmoke, asbestos pipe covering,breathing dust, fungus, animal droppings etc, arthritis and degenterative disc from sleeping in mud & snow. I submitted xrays and reports from Private doctors and the U.S. Civil service medical board all have declared me totally disabled and I have not worked for many years. I am a former Combat Medic with three battle stars and filed for compensation. The Arizona Regional Office refused and denied me a medical exam and the claims were denied. I filed a complaint and the answer given from Arizona Regional Office for denying exam and compensation is there is no record in the service medical records....Wow!!! The National Records states there are NO MEDICAL RECORDS as they were destroyed by fire in St. Louis, MO in 1973. There are no xray machines at Battallion Aid Station and for back ache, head ache, stomach ache etc. APC's and get back to your fox hole is standard rule. Combat medicine and hospital medicine are ahem!!! different. I have been refused and denied-----What can I do??? Or what should I do??? Any help or input is really appreciated. Should I just give up?? Am I just wasting my time?

1s1j5z4

First welcome aboard Hadit.

I am guessing from your post that it has been a number of years since your service and the submission of your claim. If I am correct claims such as yours have tend to pose problems as you will need a steady stream of medical evidence showing continuity of symptoms. Along with this you will need a current diagnosis and the most important thing you need is to have medical evidence providing a NEXUS between that diagnosis and your military service.

Although you stated that you have provided a multitude of medical evidence It appears that none of it provided such a nexus along with a strong medical rationale for that nexus.

Although we no longer have to submit a claim that is "well grounded" we still have to submit one that VA can not claim "there is no reasonable possibility that assistance would aid in substantiation".

Now in order for a veteran to insure that his/her claim does not fall into this category and to dictate that the VA must comply with the VCAA and provide a C&P exam the claim must contain: a current medical diagnosis or evidence of persistent or recurrent symptoms of a disability and indicate that the disability or symptoms of a disability may be associated with your military service.

So as you can see if you have medical evidence providing a current diagnosis and a nexus to your service you have met that requirement. If not you are more than likely going to receive a denial due to no nexus to military service.

Now the medical evidence route is the best situation, keep in mind that as I posted above you can also meet this requirement with continuity of symptoms (no dianogsis needed - simply evidence (medical or lay) of persistent or recurrent symptoms of a disability will do).

Bottom line is as you can see it is a crap shoot when it comes to exams as it will depend on the rater doing the inpertation of your evidence. We can argue, argue, argue for years (as can be seen here on Hadit) but it all comes down to what the rater thinks.

Now for the real bottom line (after all that ranting) is you are going to need medical evidence with a diagnosis or continued symptoms WITH a nexus (tie to) your military service. This should cause your need for an exam to reach the undebateable level and make the dummies schedule one.

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1s1j5z4,

Welcome to Hadit.

You will get more answers and responses if you start your

own thread in our Claim/Research Section.

carlie

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