Vcaa Question Ref. Private Medical Records

[vaf]

I've got a question about the extent to which the VA is required to help the veteran obtain information from private sources.

The veteran has obtained an independent medical opinion from a physician to support a claim. The physician has treated the veteran for several years, and states so in the IMO. Then, the VA had a specific question on that IMO, but never notified the veteran or the physician, who in writing invited inquiries should anything else be needed. Then, the VA (in this case the Board) denied the claim, specifically referring to the IMO, but stating an apparently minor point of confusion (whether the muscle spasms referenced occurred in the cervical spine, the lumbar spine, or the extremities), which could have easily been cleared up if the veteran or the physician had been notified. In fact, the veteran first heard of it when he received the Board decision.

This all occurred after the implementation of VCAA in 2000. No VCAA notice, and apparently, this conflicts with 38 CFR, Part 3, § 3.159, as well as M21-1 in the discussion referencing developing evidence from non-Federally held agencies (i.e., private medical records). The veteran completed numerous release of information authorization forms, which the VA claims to have never received.

In contrast, the VA is citing 38 C.F.R. 4.2, which says that if VA has a medical examination it regards as inadequate for decisional purposes or in which the diagnosis doesn’t match the data, VA is to return the examination as inadequate, seek another exam or clarification of the initial exam from the VA provider, i.e. this has been interpreted to refer only to VA exams, where VA can compel a re-examination.

Am I wrong in believing that the VA violated the VCAA?

[vaf]

Got it, Vike, I understand.

I'm wondering how common it is for the VA to negotiate for a voluntary remand to avoid a claim going before the Court.

I never heard of it, but that doesn't mean much. I'm not an SO.

Have you?

[Berta]

"Berta or anyone, have you ever had the VA offer to voluntary remand anything pending before the Court? Have you ever heard of such a thing?"

no-never-

On the VCAA question-

"Does a letter asking for medical provider names and addresses, which is information already sent to the VA many times, without being labeled "VCAA" and without being more specific as to the information needed from these providers, in fact, constitute legally acceptable formal VCAA notice"

No- a proper VCAA Notice comes before the initial denial (they are violating that one all the time)

A proper VCAA letter states in underlined or italisized letters a statement specific to the claim as to what exactly is needed.

A proper VCAA letter also has an election notice with it that the veteran makes an election on and then returns to the VA.

The VARO is also supposed to enclose pamphlets explaining with the VCAA Notice what the VCAA is all about.

(the Gov printing office apparently printed up thousands of these-I do not know of a single vet who ever got one-and they wonder why I griped to the IG about this stuff)

Jangrin posted a real VCAA letter here sometime ago and it should be found under the search.

If you read BVA remands - the violations are rampant and the BVA points out the errors and states what the VCAA letter must contain.

I am glad Jangrin posted a real one. I have never received a real one in 4 years.

The VBM has considerable info on this aspect of the DTA regs and cites Pelegrino V Principi.

I complained to the main office of my POA as they kept saying I received proper VCAA notice.

I enclosed copy of VBM NVLSP statement as to what a legal VCAA notice was, pointed out that this was part of my remand due to violation of VCAA, and my POA shut up and stopped trying to say I was wrong.

They have countless remands due to this lack of knowledge over simple VA case law and regs at the BVA. I sent them some hyperlinks -it is disgraceful that these vets have put all this time in thinking they might get a decision from the BVA but most of these cases are remanded due to VCAA violations.

Edited January 17, 2007 by Berta

[vaf]

"...VBM NVLSP statement as to what a legal VCAA notice was..."

Berta, is this available somewhere on the net? I saw the NVLSP website article on VCAA, is that what you're referring to?

Also, can you provide the link to Pelegrin V Principi? I'm having trouble finding it for some reason.

Thanks!

[Guest jangrin]

"...VBM NVLSP statement as to what a legal VCAA notice was..."

Berta, is this available somewhere on the net? I saw the NVLSP website article on VCAA, is that what you're referring to?

Also, can you provide the link to Pelegrin V Principi? I'm having trouble finding it for some reason.

Thanks!

Vicki,

Here is the download of an actual VCAA letter that my husband recieved from the VARO. This was one of three VCAA letters he recieved on his initial comp. claim.

vcaa4.doc

Hope this helps,

Jangrin

Edited January 18, 2007 by jangrin

[Berta]

Pelegrino V Principi-I APOLOGISE! I spelled the name wrong-

Pelegrini V Principi-

Here is a OGC Pres op on this case:

http://72.14.209.104/search?q=cache:mAYclP...=1&ie=UTF-8

And here is the actual CAVC decision:

http://72.14.209.104/search?q=cache:u-N1Ck...=4&ie=UTF-8

I scanned and attached here page 1339 from the 2006 Edition of the VBM-

The VBM has considerable info on the VCAA-

I got this idea from Terry Higgins and owe him a big thank you on this-

I sent copy of this page to the BVA, the VARO and my vet reps to show that my VCAA rights were violated-

The BVA and maybe the RO got it- my vet reps needed more explanation-

Pelegrini- the VA cannot deny a valid claim withou proper VCAA notification-

this is the law but they do it all he time and we claimants have to make sure they do not get away with it .

scan_VBM_page_1339.rtf

[vaf]

Berta, I'm getting a blank page in Wordpad when I open the scanned document. I have trouble opening wordpad documents for some reason, is there something else I can do to open this?

Thanks everyone for all your help. This will come to a head pretty soon, I'll let everyone know what happens.