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free_spirit_etc
On my husband's inital cancer case - he did not SEE the VA examiner. The examiner just issued an opinion.
According to the BVA Handbook -- the veteran is supposed to be notified when a medical opinion is requested --and also is to be given a copy of the opinion and time to respond before deciding a case.
Does this also apply to the RO??
Is it the basis for a CUE if a decision was made without notifying us that an opinion was requested or providing us with a copy? Is not affording a veteran due process the basis for a CUE?
The VA examiner used a C&P exam report -- but my husband never SAW him --and he stated that he was asked to give an opinion after reviewing the medical records.
http://www.va.gov/publ/direc/BVA/BVAHB8440.htm
SECTION V. 38 C.F.R. § 20.903 COMPLIANCE
2.80 RESPONSIBILITY FOR COMPLIANCE PROCEDURES
The Board’s Rules of Practice require that we notify appellants and their representatives when we request an opinion from VHA, AFIP, an IME, or GC. 38 C.F.R. § 20.903. This is a two-step process, and is the responsibility of the Administrative Service.
2.81 STEP ONE—NOTICE THAT AN OPINION HAS BEEN REQUESTED
The appropriate administrative team will prepare a letter for the signature of the Director of the Administrative Service informing the appellant and the representative, if any, that the Board has requested the opinion. Date and mail the notice letter after the Director signs it. File one copy of the letter in the Briefface and, since the applicable VA records folder will already have been dispatched with the opinion request, temporarily store another copy in the Briefface to file in the applicable VA records folder when it has been returned.
2.82 STEP TWO—FURNISHING A COPY OF THE OPINION AND AN OPPORTUNITY FOR RESPONSE
The second step occurs when the Board receives the requested opinion. At that time, the appropriate administrative team will:
File the copy of the initial notice letter that was temporarily stored in the Briefface in the applicable VA records folder. See ¶ 2.81.
If the opinion is a GC opinion, make sure that the Office of the Chief Counsel (01C) has seen the opinion and completed its processing. See ¶ 2.69. If not, send the file to (01C) before proceeding.
Mail a copy of the opinion to the representative, or to the unrepresented appellant, with a cover letter allowing a period of up to 60 days from the date of mailing of the copy of the opinion for response. Also see ¶ 2.83.
File a dated copy of the cover letter in the applicable VA records folder and in the Briefface.
Establish suspense-date control measures.
If a response is received, file the original in the applicable VA records folder and a copy in the Briefface.
After filing the response, or when the time for response has passed, return the file to the Board member(s) to whom the case is assigned.
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