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develop to deny
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pointer123
I dropped off the following is the letter at the Regional Director's Office regarding "develop to deny" in my claim that has been pending over a year and a half. Think it will have any effect?
---------------------------------------------------------Letter text follows......
Formal objection for "development to deny" by the VA regarding a current pending claim dated 1 January, 2019 under EP 930 for an increase in disability for audio hearing loss due to the VA scheduling a new duplicate audio exam for the same pending claim as of 11 July, 2019. I have included the existing VA audio exam for this claim as attachment 1 below.
Background:
The facts of this objection are simple. As part of the VA claim development process for my pending increase in hearing disability, I was scheduled for, and attended, a VA audio Compensation and Pension(C&P) exam on 13 August, 2018. This examination was highly probative and conducted by an audiologist contracted by Veteran Evaluation Services(VES) for the VA. On 10 July, 2019, I received a telephone call from VES stating the the VA wanted them to schedule a new audio exam for the same claim.
VES submitted the C&P exam report to the VA on 14 August, 2018. Conversation with VES and a review of my C-File indicates there were no sufficiency problems with the VES exam. All tests performed by the VES audiologist met and/or exceeded VA requirements. Based on the foregoing, there was no legitimate reason for another medical examination or opinion. Clearly, there must be compelling reasons for the VA to reschedule a previous VA exam and it must be related to the sufficiency of the previous exam. As stated above, there were no sufficiency concerns with the 13 August, 2018 audio exam. I met my responsibilities in reporting to the VA Audio Exam conducted by VES on 13 August, 2018 and the exam meets the requirements for an increase in my hearing disability rating.
It should be noted that the compelling reasons regarding sufficiency apply to previous VA examinations and not private medical examinations. My previous audio exam was a VA exam, and, as such, compelling reasons with regards to sufficiency must be identified and presented prior to scheduling. The previous VA audio exam is adequate for rating and current regulations admonish regional offices not to request an examination solely to confirm evidence.
The VES exam was clearly in favor of an increase to my audio disability rating. Additionally, the VES exam was far more probative than a VA audio exam that was conducted by the VA Hospital Boston in the previous claim that generated the current EP 930 claim. The VA Boston audio exam only measured puretone threshold and the Maryland CNC test.
The VES exam was far more detailed and, in addition to the puretone threshold and the Maryland CNC test, VES conducted additional tests that Boston did not conduct. These tests included air conduction, bone conduction, and acoustic immittance tests.
Based on the foregoing, ample VA evidence exists to determine my hearing increase disability claim and an award should be made without a subsequent and redundant VA audio exam which constitutes development to deny and is arbitrary and capricious.
Based on the foregoing, the VA should cancel any new VA audio exam for this claim and rate the claim using the existing and sufficient VA audio exam performed by VES on 13 August, 2018.
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GBArmy
That is a well thought-out letter and it states your position clearly. I see no reason that it should be not be seriously considered by the RO. The only thing I could recommend for now would be to req
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