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[Guest rickb54]

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Edited February 19, 2007 by rickb54

[Rich T]

Rick;

I've told this several times before. When one of my kids applied for chapter 35 after being several years since the last one applied, the VARO did the same to me. They said if you apply for benefits, we'll re-examine!! My SO said you never can tell when they'll do something like this. I contacted the VARO Directors office NOT the bottom feeders at contact. Believe me when the VARO directors executive secretary (the boss's woman FRIDAY) gets hold of things like this the fur flies. I went into the SO's office, sat with my C file and paper clipped every previous decision that said "No further examines Scheduled”. She had a second level attorney investigate. He came to my home and apologized to me in my bed. The VA wrote a letter saying that they were sorry that an unfortunate event could happen like this.

[Jay Johnson]

The wife was 100% P&T with A&A and, when we moved cross-country, the new RO reopened her file, ordered a C&P and proposed a reduction......my complete story was just posted in the "success stories" thread, so I'll spare you the details, but I can say, with certainty, that this is becoming a common game in the VA in regards to P&T and most people working for the VA actually believe that you CAN schedule future exams when P&T (which is NOT true). The DRO, in my wife's case, spoke to her directly and said the the VA CANNOT schedule futre exams when someone is P&T under ANY circumstance. The only time a P&T person can be reevaluated is if the RO recieves "new and material" evidence that shows an improvement.

In my opinion, this seems to be becoming a big issue among the various RO's and someone should bring it up with our elected officials formally.

[Guest Namvet6567]

Jay, please post any rule, regulation, section or guideline, that confirms what you state about scheduling new C&P's, for claimants rated PT, that we could use, when arguing with the VA. Thanks!

I believe the VA could order a new C&P, if it called a CUE on itsef when, reviewing a transferred c-file.

Edited March 15, 2006 by Namvet6567

[Jay Johnson]

Jay, please post any rule, regulation, section or guideline, that confirms what you state about scheduling new C&P's, for claimants rated PT, that we could use, when arguing with the VA. Thanks!

I believe the VA could order a new C&P, if it called a CUE on itsef when, reviewing a transferred c-file.

It really depends on the person interpreting the law in my opinion. 3.327 clearly states that you cannot order a future "reexamination" for someone who is deemed to be P&T, but it also says that this doesn't limit the VA's authority to order an exam if necessary. What this means is that the VA cannot order a periodic reexamination under any circumstances if they deem one to be P&T, but they can order an exam, in the future, if they meet one of a few criteria, namely new and material evidence or CUE (on themselves). The problem is that some raters are reading the "it will not limit the VA's authority" as meaning they can, in fact, order future exams. The very definition of P&T is that there is no likelihood of improvement and is meant to stop needless examinations for chronic conditions.

The best you can do in this case is cite 3.327 and ask them to follow their own regs. Also, there was an article posted here from the vice-secretary, head of C&P, etc to congress awhile back...I used this article because it said, under title 35 benefits, that one is not eligible for CH. 35 unless they are deemed to be P&T, which means NO FUTURE EXAMS are scheduled......that statement from the top dogs is pretty hard for the RO to argue. Also, in my wife's case, the director told her, directly, that they should not have scheduled a future exam in her case due to P&T (as did the DRO).

The sticky point is that they do have latitude to order an exam (not a periodic reexamination) if they meet the aforementioned criteria...the problem is that they can just lie about meeting said criteria and force you into a C&P in which they can then cite, for certain, new and material evidence...so, even if you prove that they should not have ordered the C&P in the first place, they already have new info on you so the point is moot. It's just another dirty trick to put PTSD folks through the ringer as many times as possible.

The only real way to avoid this is to completely avoid the VA all together.....any time you see a VA doc, go to a VA hospital, file a different claim, etc you open pandora's box. I know this is a horrible way to do things as it isn't fair for vets to have to hide and not be able to use the benefits they deserve, but until they strengthen the laws behind P&T, it seems like the only viable protection:-(

As far as fighting exams that have been wrongly ordered - I would ask for proof of new and material evidence.....without proof of this they have NO right to order an exam on a P&T vet. Also, in cases of TDIU P&T, they need not only show improvement in the disability, but they must also have material evidence that the vet is capable of work (P&T for TDIU means the vet is not likely to ever work again...if there is no proof that the vet is able to work then they have no justification to reopen a claim). With that said, they often reopen claims anyway in the hopes that you won't win your argument before they exam you, which, effectively, gives them a lot more latitude in your case.

I'll try to dig up that old post here about the VA leaders to congress, but it's probably buried pretty deep.

P.S. - I dug up that old post I was speaking of...here's the link to the entire post followed by the specific excerpt in question - P&T TDIU Hearings

>>>>>>Additional Benefits

A total disability rating based on IU can result in

eligibility for additional benefits for a veteran’s

dependents and survivors. Educational benefits for

the veteran’s spouse and eligible children are

available under the Survivors’ and Dependents’

Educational Assistance Program (title 38, United

States Code, Chapter 35). The Civilian Health and

Medical Program of the Department of Veterans Affairs

(CHAMPVA) provides reimbursement to eligible

dependents for most medical expenses, provided that

they are not also eligible for health care benefits

provided by the Department of Defense. To be eligible

for both of these benefits, the veteran’s IU

determination must be considered permanent.

Permanency for eligibility to Chapter 35 and CHAMPVA

requires that there not be a future examination

scheduled.

Edited March 15, 2006 by Jay Johnson

[Guest Namvet6567]

Thanks, Jay, I appreciate the post!!

[Jay Johnson]

Thanks, Jay, I appreciate the post!!

My pleasure:-) That part I quoted from the congressional hearings is a VERY strong quote in my opinion...the VA often uses quotes from the secretary (and other higher ups) when making decisions, especially at the BVA and the COVA level. Everyone who is P&T and gets an order to report to a C&P exam should print the info from those hearrings and use it against them:-)