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Supreme Court denies certiorari in Francway v. Wilkie (Interesting Read)


Buck52
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If the Supreme Court knew the turnover rate of appealed claims where the C&P examiner was at fault, perhaps they would have accepted it.

It makes me wonder if the VA examiner was a NP or PA...

These points below caught me by surprise. It reminds me of last year when the VA did an endocrine C&P via a VA contractor cardiologist...

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Why is Francway v. Wilkie Important?

Although changing the content of "Footnote 1" in the Federal Circuit's opinion is important (see below), an equally important aspect of this decision—which was in the original three-judge panel decision—is that:

  • when the veteran-appellant requests information about the examiner, the VA must respond promptly to this request;
     
  • VA must produce the examiner's curriculum vitae "... and other information about qualifications of a medical examiner";
     
  • this right is required by the VA's duty to assist—this duty comes from a statute passed by Congress and signed by the President,3 not merely a regulation written by the Department of Veterans Affairs.
     
  • the "burden of persuasion" falls on VA to convince the Board of Veterans Appeals that the examiner was competent to provide the expert witness opinion(s) in the case; and 
     
  • the Board must explain in a clear and complete manner whether or not the examiner was competent to provide the opinion(s) and why the Board reached that conclusion.

 

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Great post, Buck.  I had this very issue in (my past) claim.  In a nutshell, I was given a sleep apnea c and p exam by an MD with no experience in sleep medicine.  This doc opined that my sleep apnea was unrelated to MDD.  While I did challenge the competency of the examiner, the VA never responded to my competency challenge, and, worse, later on my attorney consented to "withdraw" my sleep apnea appeal, but eventually won my eed appeal.  

Eventaully, whether or not I am SC for sleep apnea is moot.   It may have even been moot when I appealed it.  You see, sleep apnea SC at an additional 50 percent would have qualifed me for "100 plus 60" SMC S.  

Later, I found out that was probably not correct.  The "100 plus 60" have to be seperate and distinct, and I was basically arguing that sleep apnea was secondary to MDD, so that would render them "not" seperate and distinct and would result in SMC S EVEN IF I was awarded SC for sleep apnea.  

Had I thought it would make a difference, I would have continued in my challenge to the competency of the examiner.  "Being an MD" is insufficient to render a c and p exam BECAUSE the examiner had "0" sleep medince experience.  

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One of the powerful things about this decision is that it forces the VA to verify credibility.  While the presumption of regularity was not completely removed it still forced the VA to say why they found the examiner credible.  To add to that if you submit your own medical evidence it will make it harder for them to ignore your evidence.  Most C&P examiners are NP's  or PA's

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There are lots of things VA "gets away with" and this is one of many.  

For example:

1.   The VA gets to "interpret" their own regulations because of Chevron Deference, aka, Auer defense.  

   (This is one of the worst). 

2.   The VA can take "as long as they want" to copy your cfile and send it to you, even if that means you passed the one year appeal period.  This is bad for Vets.  You often dont know whether to submit new evidence or not, because you dont know what evidence they had.  This hornswaggles Vets, because he must choose, in his appeal either HLR (no new evidence) or SCL (new evidence) as well as the Veteran must specify same in his appeal to the Board.  This is highly unfair to Veterans.  If the Veteran has a VSO "with VBMS acceess" he has a huge advantage over no VSO or a VSO with no VBMS access.  Most competent attorneys have gone through the hoops to get VBMS access.  But not all VSO's have.  

3.  Violations of 38 CFR 3.103 are not just "overlooked" they are encouraged by CAVC.  3.103 says "each Veteran is entitled to a written decision on his or her claim".  However, CAVC has ruled that a claim can be "deemed denied" and not addressed, and then its the Veteran who must figure that out and file an appeal on a claim which has not been adjuticated.  This rubs me raw.  

4.  Benefit of the doubt is an "April Fools" joke.  

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32 minutes ago, broncovet said:

3.  Violations of 38 CFR 3.103 are not just "overlooked" they are encouraged by CAVC.  3.103 says "each Veteran is entitled to a written decision on his or her claim".  However, CAVC has ruled that a claim can be "deemed denied" and not addressed, and then its the Veteran who must figure that out and file an appeal on a claim which has not been adjuticated.  This rubs me raw.  

Hey @broncovet check this out.

When I received my CUE denial earlier this year, I found they used the short form. It failed to explain why the evidence was unpersuasive and failed to address all pertinent evidence and claimant's contentions. In brief, they copied/pasted most of the original rating narrative and reworded it a bit.

However, it is good to know that the VA's own internal rules for preparing decision letters are now publicly available. If you think they shortchanged you with an insufficient narrative, now you can see if they followed their own policies or not.

Aside from the usual sections, the actual explanation can be written as short or long form rating narratives depending on the circumstances or type of claim. For example, CUE and HLR are always supposed to use the long form version.

I think the long form policies were implemented after the VA was scolded in numerous court decisions for not giving veterans sufficient information to properly exercise their appellate rights.

 

M21-1, Part III, Subpart iv, Chapter 6, Section C - Completing the Rating Decision Narrative

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000014206/M21-1-Part-III-Subpart-iv-Chapter-6-Section-C-Completing-the-Rating-Decision-Narrative

Below is the good part from the long form. To see when it should be used, refer to the above linked article.

Quote

III.iv.6.C.7.b.  Adequate Analysis in a Long-Form Narrative Format

The long-form rating narrative format must be used in certain types of claims to more thoroughly and adequately discuss the reason a decision was made.  In general, the narrative should

  • address the decision elements noted in M21-1, Part III, Subpart iv, 6.C.5.a
  • discuss evidence that is relevant and necessary to the determination, including specific treatment details both during and after service
  • clearly explain why that evidence is found to be persuasive or unpersuasive, and
  • address all pertinent evidence and all of the claimant's contentions.

The reason for denial should be based on a review of the available facts and how they relate to the statutory and regulatory requirements for the benefit sought.  The key factors involve

  • the claimant’s stated belief or contentions
  • the pertinent facts, to include those that address the condition or circumstances claimed
  • what we may have asked for but did not receive, and
  • succinct reasoning explaining the elements not present which are needed to award the benefit.
Note:  Cite both favorable and unfavorable evidence without partiality, especially when a decreased benefit is under consideration.  Compare relevant findings at the time of the previous rating with present findings.
 
References:  For more information on

 

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