Develop to Deny Congressional Request Response

[pointer123]

The following is the Va Regional Office response to my Congrint regarding the VA developing to deny in my audio increase claim.  The VA response challenges any common sense reading of their submission to the Congressman.

Dear Congressional Representative:

Thank you for your inquiry regarding Mr. XXXXXXXXXX.

The VA examination for hearing loss on March 6, 2018 was consistent and sufficient as the Veteran had only claimed an increase in the left ear.  The hearing loss examination ordered on July 24, 2018, was unnecessary, however it was ordered, and evidence received from it needs to be considered. 

A request for clarification exam for the claim for entitlement to an increased evaluation for left ear hearing loss was requested April 11, 2019.

The reason it was requested is because the findings from March 2018 and the findings from August 2018 are significantly different and the examiner is asked to review and explain.  That request is normal procedure when there is a significant disparity between the results in two sets of testing relatively close to each other. 

Unfortunately when we requested the clarification in April 2019, that was not completed and so we again asked for the review and clarification in the July 8, 2019 deferral.  For some reason VA ordered another hearing loss exam on July 10, 2019, but still did not request clarification about the two previous examinations. 

Mr. XXXXX mentions the exam in August 2018 was highly probative but, for the claim for increase for an already service connected left ear, hearing loss probative value is not at issue.  The Veteran refers to the third exam in his letter as “development to deny”, which is not the case, but it was wrong to get another exam and for that we apologize for the confusion and inconvenience.  What we requested in April 2019 was clarification and this clarification has not been received.  We are following up on that request now.  Once this clarification is received, the Veteran’s claim for increase will be reviewed.  

I hope this information is helpful.

Sincerely
Manchester, NH Regional Office

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Here is my response to the congressional Representative regarding the Regional response to their inquiry. The bold are my annotations regarding the real facts that I inserted into their response.

Thank you for your inquiry regarding Mr. XXXXX

The VA examination for hearing loss on March 6, 2018 was consistent and sufficient as the Veteran had only claimed an increase in the left ear. { The hearing loss exam on March 6, 2018 was for a different claim that was completed with a decision date of 23 March 2018 and was considered "final and binding".  Several issues were awarded and several were denied in this previously rated claim. Within this claim, I notified the VA that they did not rate my diabetes disability contention even though I submitted private treatment records the day I submitted the claim. Lo and behold, Manchester discovered "late flowing evidence" regarding this "final and binding" claim and tried to "fix" the diabetes omission by creating an EP 020 claim to rate this omission. As part of this EP 020 claim, the Memphis Regional Office, during review of the claim cited several mistakes made by Manchester.  Attached is a copy of the Memphis directive to Manchester.   Because Manchester had my private medical records in their possession when they rated my claim, but did not use them in their decisions, this created problems in the adequacy of the C&P exams used to rate the claim.  Additionally, Memphis told Manchester that they did not request all VA medical records that may pertain to my claim and they must do so. The Memphis concern was correct and Manchester was missing available VA medical records due to their error.  Because Manchester did not provide all medical records to the examiners to review in determining my previous claim, this raised serious  C&P exam adequacy issues because the ENTIRE medical file must be reviewed by the examiner in an adequate C&P exam.  The Manchester fix to this was to follow the directive of Memphis and send me out for new C&P exams for rerating my hearing, eyes, and several arthritis and leg pain issues. They put all of these contentions as "increases" in the new EP 930 claim.  Because the examiners now had access to all my medical records, this solved potential exam adequacy issues for non-availability of records. VA Manchester never gave you this background which is germane to the entire situation.}

The hearing loss examination ordered on July 24, 2018, was unnecessary {as above, it may have been required due to incomplete records used in the previous hearing exam and the cure was to do a new C&P exam once the records were placed in the C-file.}, however it was ordered, and evidence received from it needs to be considered.  A request for clarification exam for the claim for entitlement to an increased evaluation for left ear hearing loss was requested April 11, 2019. {When I saw this request for clarification in the VA eBenefits system, I called the contractor, VES, and requested information regarding this clarification request. VES told me, which I confirmed at multiple sources at VES, that VA Manchester told them to ignore the request for clarification. VA told them that they had everything they needed and it was "good to go".  What VA Manchester did not tell you was that it was not completed because VA Manchester told VES not to do the clarification.   The reason it was requested is because the findings from March 2018 and the findings from August 2018 are significantly different and the examiner is asked to review and explain.  That request is normal procedure when there is a significant disparity between the results in two sets of testing relatively close to each other.  Unfortunately when we requested the clarification in April 2019, that was not completed {At VA Manchester request based on information provided by VES.} and so we again asked for the review and clarification in the July 8, 2019 deferral.  For some reason VA { A reason is required for any C&P exam; this supports my contention for "develop to deny".} ordered another hearing loss exam on July 10, 2019, but still did not request clarification about the two previous examinations. {This sentence is incongruent with the previous sentence. The previous sentence states they requested review and clarification on 8 July, but then goes on to state the VA ordered a new exam on 10 July, "but still did not request clarification". It appears VA Manchester wants to have it both ways.} 

Mr. XXXXX mentions the exam in August 2018 was highly probative but, for the claim for increase for an already service connected left ear, hearing loss probative value is not at issue. {Probative value is always an issue in the comparison of exams between 2 different examiners. The experience and capability of one examiner may be clearly superior to another. My review of the experience, education, and training of the examiner for VES and the examiner for VA Boston showed the the VES examiner's was far superior to the examiner who conducted hearing exam at VA Boston in the previous claim.} The Veteran refers to the third exam in his letter as “development to deny”, which is not the case, {This statement appears to be an opinion not based on a foundation of fact. They had everything to rate the claim, yet ordered a new exam.  This is the essence of developing to deny.} but it was wrong to get another exam {Because that would be development to deny.} and for that we apologize for the confusion and inconvenience.  What we requested in April 2019 was clarification and this clarification has not been received. {Because they told VES not to provide it and everything was" good to go".}  We are following up on that request now.  Once this clarification is received, the Veteran’s claim for increase will be reviewed.  

I hope this information is helpful.

Sincerely,                                                                                                            

Manchester, NH Regional Office

 

 

 

 

 

 

 

 

 

[vetquest]

The congressman's response is typical VA smoke and mirrors.  It allows the congressman to say they looked into it for you and they let the VA off the hook since they wrote a nice letter.  

I once had a congressman's vet rep that went to the wall for me and started getting good results at the VA.  Unfortunately he was voted out and the new vet rep told me "The VA has to do nothing for you".  He then told me I was only a peacetime vet and that his sub had sailed through the Persian Gulf and he was a war vet.  Hopefully your congressman's vet rep is good.

Keep us posted as your case moves through the system. 

[kanewnut]

5 hours ago, vetquest said:

"The VA has to do nothing for you".  He then told me I was only a peacetime vet and that his sub had sailed through the Persian Gulf and he was a war vet.

What an A-hole!!

[Richard1954]

I can tell you from multiple years of experience that contacting a congress critter is 99% of the time a waste of time.  I can't remember how many times I contacted a congressman or senator for assistance with the VA and each and every time the VA has a mouthpiece that tends to discredit anything I had said. In fact, before I finally gave up on Congressional assistance ,  I would actually write in my letters that I already knew that VA would attempted to discredit anything I said. Even in cases where I had documented proof that they were liars they would  still try to make me look like the bad guy. Very few elected officials will actually take an interest in any request for assistance from a veteran.  I will even go as far to say that most request for assistance are likely never brought to the attention of the congress critter by their aids to begin with.  I think unless you can prove beyond all doubt  that your side of an issue is true, you wasting your time and effort  writing these people. They are so complacent that they really care less about  any voter that is until election time rolls around. 

 I made similar complaints when the VA required me to have three hearing test before rendering my most recent denial.  ( each hearing test showed different results for the word recognition test. )  The va has the unquestionable  authority to request a C/P examination each and every time they request one . They justify the request simply by saying things like " our duty to assist" , "or not enough medical evidence to make an informed decision."  or "  the medical evidence received is inconclusive "   I've been there and I am especially sympathetic to those of us that have problems with hearing.   It is my opinion that the hearing test conducted solely for disability ratings are  in fact geared toward denial of a claim of hearing loss.   The VA even lays out how to skew the word recognition test  so that veterans hearing claims are denied based on this test alone.   I learned this through my own research because I have been denied a compensable rating since 1986 at least 8 different times.   And while we are at it,  why does an eye test require us to wear glasses during a  C/P exam,   unlike the hearing test which does not require us to wear hearing aids for a c/p exam.  The VA is not consistent in the way C/P exams are conducted not only from disability to disability but from examiner to examiner.   My newest claim for hearing loss has been in the system for two years, and just made it to the BVA.  I just don't understand how  hearing can be so bad that  one requires hearing aids, yet its not bad enough to receive a compensable rating.  A 0% rating for hearing loss defies all logic, is frustrating and is probably the most misunderstood rating of all ratings a veteran can receive because along with the 0% rating comes a new  set of hearing aids every five years.   And for those of you that do not have a hearing loss,  In my opinion, hearing aids do not in any way improve the understanding of the spoken word, they just increase the volume sometimes making the problem worse.

 If you don't understand what I am saying ( about the skewed test )  read the  items I have attached to this entry ( the second document comes directly from the Handbook 1170.02 so you don't have to read the entire document ) .   

 

 

Handbook 1170.02 VHA AUDIOLOGY AND SPEECH-LANGUAGE PATHOLOGY 30 Jan 2019.pdf Hearing test requirements.pdf handbook 1601E.01 CP exams 3Apr 2006.pdf

Edited July 21, 2019 by Richard1954
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[Vync]

I have had some mixed results requesting Congressional help. If it was for a critical issue, they were most helpful in soliciting a response from the VA. However, if it was for a non-critical claim issue, you never know.