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Va Non Compliance With Remand

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broncovet

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Berta posted:

I have advised here to vets to follow the remand yourself in many situations.... meaning ,don't depend on VA to do what the remand calls for....

That worked for me in 2009 and I got a favorable decision within a few months after rebutting a C & P they remanded for and I ordered another IMO.

The award came before I even received the 4th IMO because I rebutted successfully and sent the rebuttal and more evidence directly to the BVA.

If BVA remands for more info from NARA, private doctors, any DOD or Military department, etc etc, it is always possible that the RO never complies fully with the remand.

Yet in the time a BVA remand can take we all have time to follow up on what BVA says the claim still needs.

end Berta quote.

Thanks, Berta, for that advice.

Yes, I find the VA's non compliance with remands more than a little frustrating. I mean, think about it. You file for benefits, they are denied. You appeal and get a remand, so what does VA do? Oh, yes they ignore what the BVA tells them to do.

I do like Berta's idea of using this to the Vet's advantage, but am not sure exactly how to do this and will humbly ask Berta what to do. Of course, you can send VA letters, but they usually do not respond to those, either.

I guess Berta is suggesting sending the "evidence" direct to the BVA. In my case the BVA said the VA had to do a C and P exam for IU, which, after 2 years they have not done. I guess Berta is suggesting I write to BVA and ask them why the RO did not comply?

Thanks for your input.

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Great..... it always helps to read VA lingo verbatim.....

Remands , these are examples of what I meant by following the Remand ourselves:

"Accordingly, the case is REMANDED for the following action:

1. Obtain the audiological testing data from the Veteran's audiological examination conducted by the VA in November 2012 and February 2013."

http://www.va.gov/vetapp14/Files5/1443658.txt

This case had other issues but for the HL claim, and the other reasons for the remand , this appeared to be the sole evidence the BVA remanded for.

regarding the veteran's Hearing loss claim.

The veteran can obtain the audio records themself and send them to the BVA, who will hopefully hold them until the claim comes back to the BVA.

In any event (those records should have been part of the med recs anyhow) the veteran, if VA says those records dont exist ( they told me that a few times on stuff

that did exist) the veteran has copies of those records him/herself, which are obviously probative to the hearing loss claim.

==========================

In this next case, some contentions were denied, a few were awarded and the case was remanded for this:

1. Obtain a complete copy of the VA treatment records since August 2012. If the records are not available, or if the search for the records yields a negative result, that fact should be clearly documented on the Veteran's electronic claims file that has been uploaded to the Veteran's electronic Virtual VA claims file, and the Veteran notified of the efforts made to obtain such records.

2. On completion of the above, schedule an appropriate a VA examination to determine the current severity of his diabetic retinopathy. The claims folder should be provided to the examiner for review of pertinent documents. The examination report should reflect that such a review was conducted. All necessary tests and studies should be accomplished and all clinical findings reported in detail.

The examiner should also provide an opinion concerning the impact of the service-connected diabetic retinopathy on the Veteran's ability to work.

A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question"

.http://www.va.gov/vetapp14/Files4/1427642.txt

This veteran hopefully has a complete copy of his VA medical records, to send to BVA the part they are missing or hold onto until the C & P results are done.Particularly the records since Aufgust 2012......why are they sending BVA partial med recs????

He might even have private optamology records VA didnt consider.He might not be able to follow the remand himself at this point until he gets that C & P results and I hope he has realised he might need an IMO to rebutt it.

========================================

As this next case states:

"A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question"

I was remanded for another C & P. BVA had ordered a cardiology opinion. I snooped aropund and found out who, at my local VAMC< was doing the exam,.

it was a PA and not a cardio doc. I alreadty knew I would be able to rebutt his opinion.

BVA agreed and it was too speculative.

Had I not followed the remand,I might have thought the C & P was from a cardio doc and never rebutted it. BVA threw his opinion out.

-------------------

Surviving spouses, unfamiliar with VAOLA can have one hell of a time

The BVA remanded 479 DIC claims so far in 2014.

The widow in this case filed the 21-534 form for DIC in 2003.

The RO violated the VCAA. They did that to me in 2003 too and I asked BVA to remand and they did:

"Given the appellant's detailed application for DIC benefits, reflected in the October 2003 and November 2010 VA Form 21-534s, the Board finds that VA has a duty to provide notice tailored to the claim. As neither the October 2003 nor June 2010 letters provided such notice, the issue of service connection for the Veteran's cause of death must be remanded to provide the appellant with adequate VCAA notice.

38 U.S.C.A. § 5103(a); Hupp, 21 Vet. App. at 352-53."

http://www.va.gov/vetapp14/Files5/1441261.txt

This is absolutely absurd, as they violated VCAA twice in this widow's case.

This decision is dated 09/16/14, 9 YEARS after her first DIC application and she gets another remand......ridiculous.

I wrote myself a made up VCAA letter , using the HUPP decision.and sent the BVA what I thought it should ask me for.

The RO never sent me the proper VCAA letter at all but my evidence rendered their legal error moot.

The widow was repped by Florida Department of Veterans Affairs.They should have caught the VCAA violation right away but didnt.

If they or the widow had, this claim might be resolved by now....even if the widow has had all of the evidence she needed for DIC since 2003, she had another long wait...

Absolutely absurd.

===========================

This case was remanded for multiple addendum opinions fro C & P docs.....

http://www.va.gov/vetapp14/Files1/1409959.txt

The veteran could stop all this BS in a heartbeat with a strong IMO regarding all of the faulty C & P exams.

Sometimes the best way to successfully follow a remand is to get a strong IMO from a real doctor with expertise in the specific field , that cuts to the nitty gritty and stops the hamster wheel from spinning again and again..

Feel free to copy my links and comments here from this reply if you want to send it with your email to Secretary McDonald, as to how frustrating the remand situation has become..... Tell him it is from Berta Simmons, veteran;s advocate NY.....I am quite sure he knows who I am by now.........

Cases memorialized at the BVA as well as the CAVC show the true picture of VA failures to use proper VA case law and regulations and also the RO's ability to only address and send partial records, not to mention the remands needed ,because C & P exams are often completely deficient.

The Sec needs to hear from all of us.

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"Feel free to copy my links and comments here from this reply if you want to send it with your email to Secretary McDonald, as to how frustrating the remand situat".....

after I can read the remand.......

There might well be something in it that you could do yourself.

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