Copies of C&P Exam Results Must Now Be Requested from Your RO?

[lotzaspotz]

This is interesting and unfortunate, if true.  My husband had another C&P exam yesterday. It was at a VA office in town dedicated to these exams, but not at the VAMC.  While it was going on and I was waiting in the lobby, I asked the receptionist for the form to complete to get a copy of it, as I've always done.  She replied, and the examiner later concurred when I asked him the same thing, that the VA nationwide has implemented a new policy.  Copies of exam results must now be requested directly from the RO, and will not be available until after a claim is decided.  VAMC's will no longer provide copies to veterans.  You can guess what's going to happen (or more likely, not happen) if veterans have to jump through this brand new hoop to get medical information that rightfully belongs to them in reference to their claims and appeals.

Has anyone else heard this?  I'm wondering how the HIPAA laws impact this.  Our Congressman is also an M.D., and I'm ready to contact him, but I'd first like to get my facts straight.  I asked about accessing the information on ebenefits, but they told me to expect a change in that, but they didn't know how that was all going to shake out.  

 

Edited April 8, 2016 by lotzaspotz

[broncovet]

Its also a question of fairness.  Why should some Vets get their exams prior to the decision while others do not?  Is that not an unfair advantage for "priveledged" Vets who get their exam and have an opportunity to fix it.?  

To eliminate this unfairness, the exam should be immediately released to the Veteran upon completion and cosigning.  (Some exams have a "cosigner"...an experienced doc who is often teaching a rookie examiner, and must "cosign" the c and p exam).  

 

It simply makes sense that the Veteran be given an early opportunity to fix errors in the C and P exam at the earliest possible time, and this may well prevent homelessness!!!   The difference between getting benefits 2 months from now, and 3 years after going to the BVA could well be the difference between homelessness and not homeless.

Many people just can not hang onto their home without a good paycheck.  No paycheck, no house payments, no home.

Im not talking a hypothetical, here.  I applied for benefits in 2002 and did not get them until 2005, which was too little to late to save my home from foreclosure.   

Edited April 8, 2016 by broncovet

[Buck52]

I know its good to send in any new evidence to help with the decision of your claim (Allison Hickey) it helps get your claim adjudicated much faster.'' during the claims process it helps your claim to move.

As for as  not getting your C&P Report until a decision is made on the claim in question.

I was wondering if a veteran  can appeal  this question??

 It's an in-just  not be able to NOT receive  a veterans C&P Report before the decision is made to use this vauable information that the veteran can further Improve his/her claim

Here is the way the Appeals process works! After it leaves the RO, Most of us know this  I'm just putting this out again for the Veterans that don't know.

Appeals at the Board of Veterans’ Appeals

Once the board receives your appeal, it assigns a docket date based on the date VA received your Form 9. This date is important: under the law, the board must work appeals in docket order. Currently, the median, or middle, docket date of appeals the board is working is July 2014. Some newer appeals can be pushed to the front of the line: those from older Veterans and survivors, those who are terminally-ill or those who have documented financial hardship, etc. It’s important to know that if the board remands (returns) your appeal to the regional office to gather more evidence, you won’t lose your place on the board’s docket.

Just like in the regional offices, several Veterans service organizations are located at the board. If you choose not to have a hearing before the board, your representative will write a legal argument on your behalf. The board will consider that argument when it conducts its own de novo review of your claim. If you choose to have a hearing, your representative will help you explain your case at that hearing. VA will transcribe the hearing and put it in your file. The board can do one of three things: grant your appeal, deny your appeal or send (remand) it back to the regional office for more action.

If you disagree with the board’s decision, you may pursue an appeal to the Court of Appeals for Veterans Claims (CAVC). If the CAVC denies your appeal, you can appeal to the U.S. Court of Appeals for the Federal Circuit. If you lose the appeal there, you can petition the U.S. Supreme Court for review. The Supreme Court grants review in very few appeals. Generally, the Court of Appeals for the Federal Circuit and the U.S. Supreme Court review only legal matters in an appeal, not agency decisions.

[iceturkee]

please correct me if i am wrong but what can a veteran do with his or her exam before adjudication, other than knowing what the examiner opined? they can't file a notice of disagreement or start a different appeal process beforehand.

 

i agree it isn't fair that some veterans can get their results before others. but i strongly disagree that they should have it beforehand. i disagree with the va on many things but this isn't one of them. my 2 cents. if you don't like it so be it.

[broncovet]

The Veteran has options on an unfavorable exam.  He need not wait for an unfavorable decision.  A RO decision wont likely be better than the C and P exam.  A bad exam will almost always result in a bad RO decision.  

  Instead, its in the interst of expediency of his claim to act quickly, as soon as the C and P exam errors are noticed.    For many Veterans, the "when will I get my benefits" is critical to whether or not they can keep their home.    First, if there are errors, he can file to have the errors corrected prior to adjutication to prevent an even larger delay for his benefits.  See 38 CFR 1.579, below.    These errors could be from missing records, or miscommunication between the Veteran and his examiner.  Sometimes, the examiner actually mixes up one Veterans records with another.   If the errors can be corrected soon enough it could prevent an unnecessary denial.  

Another option is to immediately get an IME/IMO to refute a bad exam, prior to adjutication.  

Still a third option would be for the Veteran to submit PRIVATE medical exams already on file which refute the unfavorable C and P exam.  

Here is how the Veteran can correct (amend) errors in his records:

CFR 1.579 - Amendment of records.

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§ 1.579 Amendment of records.

(a) Any individual may request amendment of any Department of Veterans Affairs record pertaining to him or her. Not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date or receipt of such request, the Department of Veterans Affairs will acknowledge in writing such receipt. The Department of Veterans Affairs will complete the review to amend or correct a record as soon as reasonably possible, normally within 30 days from the receipt of the request (excluding Saturdays, Sundays, and legal public holidays) unless unusual circumstances preclude completing action within that time. The Department of Veterans Affairs will promptly either:

(1) Correct any part thereof which the individual believes is not accurate, relevant, timely or complete; or

(2) Inform the individual of the Department of Veterans Affairs refusal to amend the record in accordance with his or her request, the reason for the refusal, the procedures by which the individual may request a review of that refusal by the Secretary or designee, and the name and address of such official.

(Authority: 5 U.S.C. 552a(d)(2))

(b) The administration or staff office having jurisdiction over the records involved will establish procedures for reviewing a request from an individual concerning the amendment of any record or information pertaining to the individual, for making a determination on the request, for an appeal within the Department of Veterans Affairs of an initial adverse Department of Veterans Affairs determination, and for whatever additional means may be necessary for each individual to be able to exercise fully, his or her right under 5 U.S.C. 552a.

(1) Headquarters officials designated as responsible for the amendment of records or information located in Central Office and under their jurisdiction include, but are not limited to: Secretary; Deputy Secretary, as well as other appropriate individuals responsible for the conduct of business within the various Department of Veterans Affairs administrations and staff offices. These officials will determine and advise the requester of the identifying information required to relate the request to the appropriate record, evaluate and grant or deny requests to amend, review initial adverse determinations upon request, and assist requesters desiring to amend or appeal initial adverse determinations or learn further of the provisions for judicial review.

(2) The following field officials are designated as responsible for the amendment of records or information located in facilities under their jurisdiction, as appropriate: The Director of each Center, Domiciliary, Medical Center, Outpatient Clinic, Regional Office, Supply Depot, and Regional Counsels. These officials will function in the same manner at field facilities as that specified in the preceding subparagraph for headquarters officials in Central Office.

(Authority: 5 U.S.C. 552a(f)(4))

(c) Any individual who disagrees with the Department of Veterans Affairs refusal to amend his or her record may request a review of such refusal. The Department of Veterans Affairs will complete such review not later than 30 days (excluding Saturdays, Sundays, and legal public holidays) from the date on which the individual request such review and make a final determination unless, for good cause shown, the Secretary extends such 30-day period. If, after review, the Secretary or designee also refuses to amend the record in accordance with the request the individual will be advised of the right to file with the Department of Veterans Affairs a concise statement setting forth the reasons for his or her disagreement with the Department of Veterans Affairs refusal and also advise of the provisions for judicial review of the reviewing official's determination. (5 U.S.C. 552a(g)(1)(A))

(d) In any disclosure, containing information about which the individual has filed a statement of disagreement, occurring after the filing of the statement under paragraph (c) of this section, the Department of Veterans Affairs will clearly note any part of the record which is disputed and provide copies of the statement (and, if the Department of Veterans Affairs deems it appropriate, copies of a concise statement of the Department of Veterans Affairs reasons for not making the amendments requested) to persons or other agencies to whom the disputed record has been disclosed. (5 U.S.C. 552a(d)(4)) (38 U.S.C. 501)

 

Edited April 8, 2016 by broncovet

[broncovet]

Buck.   

   I dont know if this has been tested in court, but, yes, I think its a violation of due process to deny the Veteran access to his or her C and P exam prior to adjutication.  In Macklem, the court found the VA can not require another set of signatures to the claim, without the Veteran knowledge or opportunity for a hearing on the matter.  The decision declared that EAP = CUE and is here:

http://thomasandrewslaw.blogspot.com/2010/08/macklem-eap-equals-cue.html

If you read this, the problem is that the Veterans due process rights were violated.  In a similar way, IMHO, denying the Veteran access to his medical records, to give him an opportunity to corret applicable errors is a due process violation.  

[lotzaspotz]

First let me clear something up -- this has nothing to do with a psych claim.  It's for strictly physical issues, no shrinks involved here.

The exam was ordered (again) because the Board's questions in the previous remand were not addressed by the examiner in the previous exam.  He did not follow the directives in the remand, which when I got the copy, I realized and immediately contacted the Board t dispute the exam.  The Board eventually agreed.  So, we received another remand and waited for a new exam.  The same examiner.  In fact, he told me he thought he opined in my husband's favor the last time and was surprised to see him return.  I saw no purpose in telling him he was mistaken, that he opined against my husband.  What was the point?  He was supposed to have reviewed the claims file.  Does it sound to you like he did?

You have to scrutinize the context of the exam, make sure it follows the DBQ, make sure it follows the Board's or Court's instructions if there's a remand involved, and determine the credentials of the examiner.  Do you want a podiatrist conducting an endocrinology exam?  An N.P. conducting a psych exam?  There's a lot more to think about here than an up or down decision.  Veterans have the right to a thorough and contemporaneous exam, and also the right to review the documents the examiner submits to the RO to make sure the exam fits those parameters.  Often enough, they clearly do not.