Undergoing Development with an appeal claim

[JFizzle]

Good day good people of Hadit.com.... I checked E-benefits today and got the following status on my Work in Progress link:

Undergoing Development : The Board has requested a medical opinion concerning a question involved in your appeal. You will receive a copy of this opinion and will be provided an opportunity to respond.

Obviously the board is asking for a medical opinion on my appeal, but I was wondering if anyone else had this status and to give any insight on what to expect. Thanks in advance.... 

 

JFizzle

 

[Berta]

Chris Attig, a  great veterans lawyer, and hadit member , has this take on when the BVA requests a medical opinion;

https://www.veteranslawblog.org/va-medical-opinion-letter/

I am sure you mean a VHA opinion.

Not all VHA opinions, however, deny a claim:

In September 2015, the Board remanded this matter for additional development, to include obtaining an opinion as to the etiology of any current psychiatric disorder.  Thereafter, the Board, in August 2016, requested a VHA opinion as to the etiology of the Veteran's current psychiatric disorders and their relationship to his period of service.  The requested opinions were obtained in October 2016.  Subsequently, in March 2017, the Board requested an addendum to the October 2016 VHA opinion.  The requested addendum was provided later that month.  The requested development has been completed and the matter is ready for appellate review.  

It is noted that the Veteran's representative, as listed on the cover page of this decision, is retained per a May 2016 VA Form 21-22 under the limited circumstances of 38 C.F.R. §  14.630  (Authorization for a Particular Claim) and attested that "no compensation will be charged or paid".  In other words, the representative has agreed to not charge the Veteran for any services rendered with regard to his VA compensation claim. 
 
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The veteran was awarded their claim

https://www.va.gov/vetapp17/files4/1722634.txt

One thing about a VHA opinion is that it wil probably be requested from an expert in the field of the disability, which might well be far above the expertise  of the C & P examiner whose opinion denied the claim.

Personally- this is a different type of issue but the OGC requested a VHA opinion on my wrongful death claim.

The VHA opinion came from a cardio specialist and garnered a settlement conference right away.

I had no IMO at all but I  spent a llot of time studying cardiovascular disease and going over my dead husband's VA medical records and his autopsy and knew the VA  could not alter the medical facts of the case.

(they tried but to no avail)

 

 

I am sure you can find decisions at VA that were both denied and awarded due to VHA opinions.

Chris's reference to a  specific case in his vet blog link above shows how bizarre the VA can be.( and how capricious and arbitrary they can overlook estabished VA case law.

If you feel your claim is strong I would not worry about this yet.....

are they trying to find an opinion tyhat goes against a IMO/IME opinion you have?

 

 

Edited April 10, 2018 by Berta

[broncovet]

While I agree with Berta, Im guessing the BVA is asking for a medical opinion prior to adjutication, and I have not yet seen that...only on remand, like Berta says.  

This COULD be a good thing...for the BVA to ask for a medical opinion instead of denying or remanding if the claim is lacking some evidence, such as a nexus. 

In the past, the BVA is not proactive, and they decide the claim on the available evidence, and sometimes remand it if they think there is a good chance that evidence will result in an award

[Berta]

Does the BVA letter actually state  they are remanding the claim?

They can remand ( send it back) to the RO for another medical opinion (I assume you already had a C & P exam that denied the claim and that is the reason you appealed, and an additional opinion that might alter the outcome or maybe just clarify the initial C & P exam. Did you question the exam in the appeal? Or provide them with an IMO/IME?

Or they can remand the claim ( as they did in my AO DMII claim) for an additional opinion (I had 3 strong IMos , they had two against the claim and I rebutted the medical opinion they remanded for, as soon as I got a copy of it.

BVA agreed with my rebuttal and awarded.

I was poed at first because my evidence was overwhelming but then again- they had 2 against and wanted 3 against (because I had 3 IMOS- one was two brief sentences, a freeby) to even the score for Benefit of Doubt.

The link I gave said 'remand' ---but I think BVA ordered a VHA opinion -I need to read that case again-

Can you give us any more info as to whether the BVA letter actually said Remand?

 

 

[Berta]

My point is that a VHA opinion is different from a remand to the RO, to get another C & P exam:

In part those guideine state:

"Department of Veterans Affairs Veterans Health Administration Washington, DC 20420 VHA DIRECTIVE 1602 Transmittal Sheet February 19, 2016 MEDICAL REVIEW ASSISTANCE TO BOARD OF VETERANS’ APPEALS CASES 1. REASON FOR ISSUE: This Veterans Health Administration (VHA) Directive defines the Department of Veterans Affairs (VA) process by which VHA provides medical reviews for the Board of Veterans Appeals (BVA) cases that require expert advisory medical opinions."

(expert advisory medical opinions-)

If you google BVA and VHA medical opinions

it will be the first pdf that pops up..

I think they are often requested by BVA for extraschedular consideration.

 

[JFizzle]

Thank you Berta and Broncovet for the timely answer and thoroughness... and my apologies for getting back to this just now. 

My claim is a remanded claim, as I was only awarded partially almost a year ago for the complete claim. (Sorry for the confusion, I was thinking a remanded claim was encompassed with the term appeal and didn't know there was difference.) The claim went from with VLJ to undergoing development, which confused me because I have never seen anyone have this status nor could I find it in the search (google or hadit). 

[broncovet]

Ok.  I will be happy to explain.  When you first apply for benefits, you apply at the VARO.  If denied, you can appeal to the BVA.  The BVA can:  Award, Deny, or Remand.  A remand means that the appeal is "sent back" to the RO for "further development" and usually "instructions" compelled by the BVA.  

The RO is then required to comply with the remand and re adjuticate the claim, according to the BVA instructions.  

Again, the VARO, upon remand, can award or deny.  (There is no "RO Remand"..the BVA remands it TO the RO).  

The Veteran may then appeal to the BVA AGAIN.  Again the BVA can award, deny or remand.  If the board denys, the Veteran can get an attorney and he can appeal to the CAVC.  (you probably want an attorney at the CAVC).  The CAVC, likewise, can award, deny (they sometimes call it "affirmed", which means the CAVC agrees with the Board denial), or Remand.  

YOU CAN NOT APPEAL A REMAND.  However, sometimes the board may do something like this:

1.  The board awards the Veteran hearing loss. 

2.  The board denies the Veterans claim for depression. 

3.  The Board REMANDS  the Veterans TDIU claim for further development (and sometimes a  C and P exam)

     This means you can, in the above example, appeal the denial of depression, and you can also appeal the "effective date" of the Veterans hearing loss, but you can not appeal TDIU as it is not finally adjuticated.  You may only appeal a finally adjuticated claim and a remand is not finally adjuticated.  In other words you can appeal part of the BVA decision and not appeal other parts.