Kowalski V Principi-

[Guest Berta]

http://webisys.vetapp.gov/isysquery/irl8d00/16/doc

Tried to post it from clipboard but got error message-

you legal beagles might find this as a very interesting recent decision--

[Guest Morgan]

Berta,

Where do you find the most recent Court decisions? Can I subscribe to receive them automatically somewhere?

This is interesting in light of my husband's having to cancel his exam (for the acceptable good cause mentioned by the Court in this case) and the VA denied all of his claims because of it. Said they didn't have enough evidence to rule favorably. Well, yeah, after they wrongly knocked down two private IMOs.

They fully accepted and granted his claims last year from these same doctors' IMOs, same format. Both doctors referenced their previous IMOs and added further statements. They granted his claims last year, without an exam because the IMOs were indisputable. This time the rater referred to those IMOs and said he "allegedly" has the conditions that were granted last year. What the heck does that mean! I think it means, they wanted to (and did) ignore good solid evidence and were going on a "fishing expedition" by ordering an extensive exam, which we told them from the onset he is not able to go through--and he submitted medical evidence to prove that. I think they set him up. We received a letter telling him to expect a complex exam to be prepared to stay several hours and it could require multiple days to complete. Seemed odd to me when veterans complain a lot about how inadequately short the exams are. I think they are mad because the senator's rep got involved.

For my husband, it's not a matter of being able to wait up to a year to do the exam later, he might not make it that long. We explained his condition and asked them to cancel the exam and expedite the claims based on evidence on file. They knocked down all the private medical evidence and then said his VA record is conflicting and inconclusive.

With two IMOs and treatment records that clearly show he meets the specific ratings criteria for the claims, wouldn't that mean he has prepondrance of evidence supporting his claim, or at least, shouldn't they have applied the rule of benefit of doubt? Or do those two issues apply only to a service connection?

The main claim involves SMC R2. I base his meeting that criteria on the skilled care he is receiving and his enrollment into the Home Based Primary Care team because he can no longer utilize the OPC services. He is monitored daily through the new Health Buddy device and I talk to the VA nurse practitioner/Care Coordinator over that program three or four times a week because his heart rate is going from 19 to 146 at rest. I am with him around the clock. They set up the VA respite care for him, but I can't bear to leave him when his heart rate is so erratic. He developed this new heart problem after the VA doctor's error, but the rater said he cannot be rated for the new condition because he's already 100% for his heart. He is being scheduled now for a biventricular pacemaker. We hope to hear something this week. He also has home health and physical therapists coming in from a private agency. They rated him at SMC M last time, but we filed a claim to correct that because of all of this. I think it should have been granted.

Thanks again for posting this case, I found info there that will help me put the NOD together.

Carrie

Edited February 12, 2006 by Morgan

[Stretch]

I couldn't get it. Just got page can't be found error.

Edited February 13, 2006 by Stretch

[Guest Jim S.]

Morgan:

Since your husband won his claim for SC, I assume you are only NODing the Rate at witch he is paid SMC?

Alos that your reason for him not to attend a requested C&P exam, was due to his medical condition?

It appears that with the arguement, that he is indeed unable to attend the exam and it is backed by

medical evidence from an attending Dr., he has met one of the reasons given a lagitable excuse, then the

it is apparent that the VA has no argument to disallow the claim to proceed and to let you know, if their

any other sort of evidence that may be used to support his claim. One comes to mind and that being a

social study and Field examination of the Veterans at home. This type of examination is covered in the VA

M21-1 manual on types of examinations. These type of examinations can be given to the housebound

Veteran along with care giver, to substantiate the Veterans Social and Industrial capabilities. Also It could

be shown as to his ability to withstand a lengthy C&P exam.

It may be possible to request such an examination in lieu of an exam at the C&P examiners location.

Anyway, having a medical reason to not attend a C7P is one of the reasons for not attending one.

Jim S.

[Guest Morgan]

Yes, he should have a higher SMC level. They rated him twice without an exam last year. This time (a different rater?) they say "not enough evidence to rule favorably," although the SMC claim is based on the same evidence that already has been adjudicated.

He is rated at the SMC M level and has been awarded entitlement to Specially Adapted Housing. And he has other disabilities combined at 60%. Which I think should be at least another half step, even if they don't ever grant the correct R level.

The M21-1 says granting SAH entitles the veteran to be assigned the corresponding SMC level, which in his case would be the M level. He got A&A with his first 100% SC rating, and later, SAH with his second 100% SC rating. So he qualifies for SMC M and SMC L 1/2, which equals SMC O. And with need for regular aid and attendance (already awarded) that converts to SMC R1. He is in the two special programs for severely disabled veterans and requires daily skilled care to keep him alive and out of the hospital or nursing home, so that means he needs a higher level of skilled care and that care. This is what is so frustrating. All the evidence is already there. An exam could add nothing to substantiate this further, so why penalize him for being unable to do it?

Edited February 13, 2006 by Morgan

[Dorothy Kansas]

[url=http://webisys.vetapp.gov/isysquery/irl9641/1/doc]http://webisys.vetapp.gov/isysquery/irl9641/1/doc[/ur i like the part where they can't order examinations to rebut favorable opinions.l]

Edited February 13, 2006 by Dorothy Kansas

[Guest Morgan]

Dorothy,

Could you post that link again? I couldn't get it to work. Thanks.