Request To Revisit A Previous Decision.

[Hoppy]

In the continuing saga of a veteran who I am helping a service officer suggested that I request the RO to revisit a previous denial. I recently obtained a medical opinion from a licensed clinical psychologist who was a staff clinician at a local VA hospital. This clinician stated in her report that she has treated hundreds of cases of panic disorder while working for the VA or the last 15+ years. The clinician also stated that she has performed compensation and pension examinations. The veteran's claim was previously denied without a C&P exam, which forced me to obtain the report from this staff clinician.

The staff clinician summarily stated that the veteran currently has a panic disorder subsequent to a progression of symptoms noted by qualified examiners while serving in the military meeting the DSM IV criteria for panic disorder and the condition was of such prolonged development and lack of treatment resulted in a chronic condition prior to discharge. The full report is three pages long. I intend to submit this report as evidence in support of the claim.

I am upset that this veteran's claim was denied illegally without a C&P exam. I have explained to the service officer that had the VA followed the law the exam that I obtained would have been developed through the C&P process. I told the service officer that the failure to provide a C&P exam was in direct defiance of federal circuit court instructions involving cases whereby the VA determines that new and material evidence is required because the VA has wrongly confused the material facts of a new claim with a previously denied and closed claim.

I am advancing the position that new and material evidence should not have been a requirement and the position taken by the VA that they could not schedule a C&P exam until the veteran obtain a new and material evidence created an illegal and unnecessary delay. This type of delay is atypical in that it requires extensive and sometimes expensive reports and totally circumvents any development of a claim by the VA prior to a denial. This type of decision should be given full and careful consideration. A denial of a C&P exam can create undue hardship and expense. As such, a separate expedited appeal process should be available. The fact that the BVA in many cases is citing the federal circuit court decision and remanding C&P exams on claims that were denied without a C&P by this RO and other RO's should be investigated to determine if the RO's are willfully circumventing the requirements detailed by the federal circuit court. Understanding and implementing the court's decision could be interpreted as an elementary duty of an individual's job. Failure to perform elementary duties of a job has been determined to be gross incompetence. Additionally, due to the fact that the veteran at the time he was notified that he needed new and material evidence was not given any explanation as to his rights to appeal the determination that he needed new and material evidence the claim should now be expedited to put it back on schedule as though a C&P exam had been properly obtained prior to the denial.

Initially the service officer told me there was nothing I could do except appeal the denial. After I got done explaining to her my position as I described above the service officer tells me to advance a request to revisit the claim.

Edited October 1, 2009 by Hoppy

[pacmanx1]

Hey Hoppy, I am new at this so just tell me if I am wrong or if I am off but what about VA regulation stating that it is a requirement for evaluation to have a C & P.

4.1 Essentials of evaluative rating.

This rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran's disability claim may require re-ratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is thus essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history.

Edited October 1, 2009 by pacmanx1

[Hoppy]

The VBM (NVLSP) makes the point that as long as a veteran has stated a claim that could have potential nexus to their service, the VCAA obligates the VA to provide them with an exam.McLendon Vet App at 83-84.

But the VBM adds that if VA does not provide a C & P the VA must give clear concise reasons for that-a rationale reason why a C & P exam could not possibly substantiate the claim.

NVLSP stands for national veterans legal services program, they have a website. The red print above explains the very liberal requirement that the VA schedule C&P exams. VCAA stands for veterans claims assistance act. This act was passed by Congress to cause the VA to make changes including a liberalization of the laws requiring the VA to schedule a C&P exam. Prior to the VCAA a veteran almost have to prove his claim by obtaining medical evidence before the VA would schedule a C&P exam. The Congress intended to put a greater duty on the VA to develop medical evidence rather than burden the veteran with the requirement to obtain the evidence necessary to win a claim.

There are instances where the VA is not required to provide a C&P. However, as stated in red type the VA must explain why an exam was not scheduled.

Claims that have been previously denied and closed require new and material evidence prior to the VA scheduling C&P exams. Claims that have been previously denied and closed are slightly different and lay a heavier burden on the veteran obtain evidence that would justify continued development of the claim.

As a result this veteran received a letter specifically telling him that he needed to obtain medical evidence on his own prior to the VA scheduling any C&P exams. The error occurred because the panic disorder was never previously adjudicated. It seems the RO's are and illegally confusing new claims with previously closed claims and requiring veteran's to obtain medical evidence that goes beyond a stated claim with a potential nexus. Instead the VA requires specific medical evidence. In this case the RO requested that he obtain a medical opinion stating that his symptoms as noted in the military had continued to be chronic after discharge.

I am of the opinion that there are too many remands of the RO decisions whereby the RO should have applied the minimal liberal requirement of the VCAA rather then specific evidence in the form of medical opinions prior to scheduling of a C&P exam. If you type” new and material” into the BVA search site there'll be plenty of cases that were denied without a C&P and the BVA determines that the new claim is different and unrelated to any previous claim and re-mans the RO to schedule a C&P exam.

Edited October 1, 2009 by Hoppy

[Pete53]

My first panic attack occured June 11th 1969 about 2 PM when I was watching a guy mowing the grass next to our mess hall before I went back to work. The attack was full fledged major panic attack and I was rushed less than half a block in an ambulance to our infirmary. I was treated and released over 17 times for panic attacks and was sent to a Hospital for 1 week all in my SMR's Even so the VA denied me until a Doctor with top notch credentials certified me as a classic panic disorder.

The reason I am telling you this is your Veteran deserves to be rated and have a legitimate C&P and when you ask for a review you should also request that the VARO provide a qualified examiner to speak to Panic Disorder and make a fair rating for you Veteran.

Good Luck I think that you are on the right track. Your VA Doc should prove it eaving the VARO no room but to grant the award.

[jbasser]

Hoppy, did the VA verify the stressor?

I have seen them blow off a stressor and issue a snap denial in a couple of other claims without a C@P exam.

J

[broncovet]

Hoppy

Of course you are right on. At the risk of being called a naysayer, however, it just does not seem likely that another type of appeal to "revisit" a decision would be productive. A law that says the VA broke another law, without consequences, is no better than a law where the VA broke one law without consequence.

The solution, of course, is to ACTUALLY ENFORCE the laws.

An example is Interstate 15 passes through a "corner" of Arizona in a rather isolated area between Utah and Nevada. This was an area of very high accidents because it was well known that you could go any speed there. Arizona State Patrol officers had to reside in Arizona, and there was simply no place to live in Arizona on that isolated corner of Interstate 15. Many people died as a result of excessive speed.

A residence "exception" was passed, and now Arizona State Patrol officers live in nearby St. George, Utah and enforce the speed limit. Deaths, and the average speed went way down, when the laws were enforced. This lesson showed us that people dont just necessarily obey the law when there is no penalty for disobedience. At the VA, the employee violating the regulation does not pay the penalty..it is paid by the Veteran who's claim is delayed sometimes for years. From the VA employees standpoint there is no penalty for violating the regs, as the VA employees are "isolated" from the pain and destruction that violating the regulations causes to Veterans and their families.

Edited October 1, 2009 by broncovet

[Pete53]

Wings:

Glad that you are back. You are a research demon and a great asset to Hadit.

Hoppy too

Allan also

And the list goes on.

Thank God that there is a Website that supports Veterans and helps them prepare their claims.