Bva remand for loss of use under smc

[Mr cue]

Now here is another example of the bva try to delay and develop evidence to denied. After a cavc remand.

Ok I have a claim for smc r higher level in home care.

Now I denied get a bva decision on that and see how it say higher level smc.

So now I will not get a decision for smc r until my case is send back to the board. This is crazy.

Now smc and increase rating are two different thing. Smc is Based on the record and effective by the record.

Well my only hope to get pass all these delays is my petition.

My petition was expidate by court due to my need of in home care. And the cavc case that remand it the bva.

Do u see how the judge stated that my effective date for smc. Are downstream issue. And I have not disagree so the board doesn't have jurdation.

How is a cavc remand issue a downstream issue. Lol 

See when u do the nod now you will get a new docket number.

U will not have the cavc remand docket which is to be expidate.

This is how the bva and ro hold cavc remands. And there no longer in the system as a cavc remand. Not legal.

If I had not done the petition or understood. I would have been waiting years for them to address this.

I am venting again.

Oh and I did denied the exam. These qtc ppl are crazy. They will not tell me when it will be send back.

So now a outside company has add months to the claim process because they don't return exam or claims back to ro.

Smh now I got to fight qtc to return my issue back to ro

 

 

 

[Mr cue]

If you read the bva remand order it state it remand so the examiner can give and opinion for loss of use.

When the law state not to do this.

Now I am fight with a private company to return my stuff because I refuse there general medical exam. Smh.

 

 Responsibility for Determining LOU The responsibility for determining whether there is loss of use (LOU) of an extremity

• rests with the rating activity, and

• cannot be delegated to the examining physician.

c. Information to Request From an Examiner to Determine LOU When requesting an examination to determine LOU of an extremity, ask the examiner to furnish a

• detailed objective description of remaining function

• quantitative assessment of strength for each extremity involved, and

• description of any pain that affects use.

Do not request that the examiner

• determine LOU, or

• express an opinion as to whether there is, or is not, LOU of an extremity or extremities.

Note: If LOU cannot be determined upon review of an examination report, request an appropriate specialized examination.

References: For more information on

• considering functional loss due to pain in claims for SMC, see Tucker v. West, 11 Vet.App 369, 374 (1998), and

• requesting a specialist examination, see M21-1, Part III, Subpart iv, 3.A.6.

d. Determining the Extent of Examinations in Claims Involving SMC Under 38 U.S.C. 1114(l) Through (n) Exercise considerable care when requesting examinations in connection with claims involving SMC under 38 U.S.C. 1114(1) through (n).

Example: A prior examination clearly established LOU of both lower extremities at a level preventing natural knee action. Do not request a complete medical examination if the only issue in question is the extent of involvement of one or both of the upper extremities. Instead, request an examination with a notation that the examination be restricted to the degree of functional impairment of the upper extremities.

 

 

 

 

 

 

 

 

 

 

[Mr cue]

Since July I have had 3 exam cancel by qtc. They tell the va I canceled the exam. But tell me they can't do a medical opinion with out a physical exam.

well the board say I can refuse the exam. And make a opinion on my record.

 

Well I got a irs answer which stated my record was send to the bath va hospital. Sept  For the medical opinion to be done.

I never been to bath va I am in the buffalo ny va.

Be at least it at a va hospital now.

I have over 25 years of record of loss of use.

I been to 8 or 9 comp exams for loss of use under smc since 2019.

The remand even stated about my loss of use.

I refuse to go to anymore exams

The One bad report they are looking for will never out weigh my record.

? Anyone had a medical exam at bath are they quick

I use to be able to call buffalo and they would set the exam right up.

because the report is been done at va hospital now I should be able to see the report on va.gov.

Well we will see.

 

 

 

[broncovet]

you posted:

Quote

it state it remand so the examiner can give and opinion for loss of use.

When the law state not to do this.

No.  But you are splitting hairs.  The law stated it could not be DELEGATED to the examiner, but it does not say the examiner can not render an opinion.  

There are some special rules here.  The doctor gives an opinion.  The rating specialists review the applicable "(medical opinion's)" AND they rater decides "what weight to give each opinion", if any, especially if there are conflicts of medical opnions.  A single medical opinion may or may not have all the necessary information for the rater to render a rating.  For example:

1.  The medical opinion may or may not give an etiology.  If there is no etiology, then another opinion which gives an opinion of etiology, is usually necessary.  

2.  The medical opinion may or may not document symptoms, necessary for rating.  

3.  The medical opinion may or may not document a start date (for effective date purposes) as to when you became disabled.  

4.  Generally, the medical opinion must include a 'medical rationale" for why such an opinion is rendered.  Example:  THE doctor opines that its at least as likely as not that the PTSD (SC) caused sleep apnea.  The doctor must give medical reasons as to why he rendered such an opinion, or VA may not accept it.  

[Mr cue]

 

I never say that a examiner can't give a medical opinion. I have 6 comp exam with opinions.

The board Address one the favorable specialized loss of use exam.

If u read why bva are remand it state the doctor need to make the determination   the rater so read the remand.

Smc is to be based off of your record and effective by the record.

The examiner can't make a determination.

This is why I had 4 exam cancel and been waiting on them to send it somewhere else

The rating  specialist is to make the determination not the examiner.

All my  exam are favorable.

 

I can't even get them to denied it.

You ever seen were the va will not denied a claim were a veteran will not go to a exam.

This is a cavc remand.

 

So now waiting for the judge to rule on my petition for extraordinary relief.

 

 

 

 

 

 

 

[Mr cue]

On 10/5/2021 at 12:38 AM, broncovet said:

 

 

[Mr cue]

Man this remand is crazy.

Now the va hospital in bath and buffalo cancel the medical opinion.

They stated they can't make that determination.

Now it back in the national queue again.

This is what bath hospital told me.

I can't even withdraw this because the board put my smc r and o which was  remand by the court with this.

I am really upset with all this.

I fought all the way to the court.

And now the effective dates which were remand by the court.

Are in the new appeal system I never opt in never check the box.

But now a cavc remand is been try as a new appeal. With a July 2021 date smh. They refuse to return it back to the board under the cavc remand docket.

The board put on the remand I had to do a new va form 9 to continue my appeal for my adjustment disorder which was remand by the court.

Now its been treated as a new appeal. 100000 in line with a new docket.

They refuse to return my issue back to the board under the cavc remand docket.

The court remand smc r and o the board remand loss of use and refuse to address the r and o.

My petition for extraordinary relief has been with the judge for 3 weeks.

Lol

Than to top it all off my case was advance by the board 2018 because of my need of in home care.

The court advance of my case because of my need of in home care.

 I can't even get a bva decision on  smc r or o because the board. Has it listed with the loss of use  remand

Even after the court remand it to be Address.

 

I just had to venting again after I found out they cancel it again.