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I would never tell a veteran not to go to a exam


Mr cue

Question

Ok let me start here u should go to any exam the va orders. 

Now are there times when the va is just ordering exam for no reason. Yes.

I am not just stating this

 the va inspector general has done reports on this.

Now let get to the my belief and the law I feel backs it up.

I am only base this on smc benfits and if you have a Cavc remand

I will use my case.

I apply for smc benfits and the va order 5 different exam loss of use and increase exam and a@a exams

Then they defer it two times.

I withdraw the increase rating at the hearing with the dro.

On appeal I was send to 3 more exams and even a specialized loss of use exam.

I was granted smc l from when I apply for smc benfits.

I continue the appeal to the court.

It was remand to address smc r and o and the effective dates of smc s and l because the va  never address any time period before I apply.

Ok let look at smc benfits laws

b. 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.

Ok so based on this the rater is to make the determination not the examiner.

So the rater should use your record to make this determination.

Ok in my case the bva judge denied my 25 years of evidence and my specialize loss of use exam.

Because the examiner didn't state i have loss of use.

Here is the law

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

Ok there not following the law and ordering unnecessary comp exam.

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

I had the specialize exam.

Ok so they didn't accept the specialize exam because it was favorable.

Ok here is more laws for veterans.

 

Exercise considerable care when requesting examinations in connection with claims involving SMC under 38 U.S.C. 1114(1) through (n).

I had over 8 comp exam for smc and the specialize exam.

I guess that would not be call considerable care.

Ok after the court remand it I wasn't going to anymore exams.

Why because of this.

Someiano v. Principi, 17 Vet.App. 305, 312 (2003) (Court noted that it would not be permissible for VA to undertake further development if purpose was to obtain evidence against appellant’s case)

Adam v. Principi, 256 F.3d 1318 (Fed. Cir. 2001), (in which the court stated that it would be improper for the Veterans Court to remand a case to the Board to give the DVA another opportunity to develop evidence needed to satisfy an evidentiary burden it had failed to satisfy the first time, i.e., to “attempt to introduce new evidence sufficient to make up the shortfall” in the agency’s proof. Id. At 1322.”

And the bva judge still remand it for a medical opinion.

Now should a veteran press the issue about all these exam I say yes

But some say just let the va do what they feel and hope for the best.

I am not from that school.

Ok now that we got that part.

Let look at ordering increase rating exam when a veteran apply for smc.

Medical providers within or outside of VA may complete VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, to provide evidence that a claimant is in need of aid and attendance (A&A) and/or housebound benefits.

 

 

Notes:

• Statements by medical providers on VA Form 21-2680 which meet the requirements of 38 CFR 3.326(b) and 38 CFR 3.159(a)(1) are acceptable for rating purposes.

• Statements by medical providers or other clinical evidence contained in the VA Form 21-2680 may be accepted as a claim for increased evaluation for an existing SC disability if worsening of the disability is shown.

Ok I see may be used  as a increase rating if the disability worse.

For an increase rating.

Now if a veteran disabled can't get an increase any higher or does want and increase of his rating claim.

Or feel they may play with his rating or whatever reason.

Can he withdraw it. And the va still have to process the smc benfits.

Yes.

Now I am 25 year protected so yes I refuse exams.

I have a 25 year record over 6 bva decisions and two court cases.

That are part of my record.

Use that.

I post this and hope it can help others understand.

The law

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Some good points there, but you mostly cited M21-m.  That isnt a law, its "procedural GUIDE for adjudication".  

 

   Its okay to cite M21-m in your appeal.  Go ahead.  But its like citing a BVA decision in your appeal.  

    You see, BVA decisions are "non precedential" mean the VA does NOT have to do things the same with every BVA decision, in no small part because the facts of each case are different, and part of the job of the BVA is to "fact find" and they often cite "Findings of fact", that they determine from the evidence.  

     Dont conflate M21 Mr with "the law" because it isnt. Its a "guide" written by senior VA employees who often have little or no legal experience.  Its for raters.  

    The VA is doing a rewrite of M21, and there are some good reasons for them doing so, and you probably just pointed out a good one.  

    For more info on understanding the differences between 38 CFR, USC, and M21-m, as well as fast letters, you can look here:

http://www.nd.gov/veterans/files/resource/Chapter 3 - Reference Materials.pdf

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Not exactly.  Here is what the CAVC does say about M21-m:

Quote

The M21-1 is an internal manual used to convey guidance to VA adjudicators. It is not intended to establish substantive rules beyond those contained in statute and regulation.

source: Federal register:  https://www.federalregister.gov/documents/2007/11/27/E7-22983/va-adjudications-manual-m21-1-rescission-of-manual-m21-1-provisions-related-to-exposure-to

The bold portion, is pretty much what you did.  Neither the 38 CFR's nor the USC code said anything about it, but the "guidance" in M21 did, so you conveyed the M21 guidance for raters "as if" it is the law.  It isnt.  

ONE problem with referring M21 "as law", is that its under constant change, subject to the whims of the VA employee(s) who author the M21, and thus the author's opinion has yet to be confirmed by case law.  

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On 7/31/2021 at 7:06 PM, Mr cue said:

 

 

 

 

 

 

 

I have no problem debating law.

I also use to do it with Carlie and Berta.

When I was fighting for my 8 year retro under yulooking and it really help me.

Put it in the search.

Now back to if the va manual meaning anything to the court.

 

I am not about to post the whole Case.

And the case was done just for the reason you just stated the va feel the va manual mean nothing but it is there rules for there employees.

That effect us veterans and our claims.

 and the court agree

 

The Federal Circuit addresses 
whether it has Jurisdiction to Review 
the Provisions of the VA Adjudication 
Procedures Manual M21-1 
By Catherine Vel
Reporting on DAV v. Sec’y of Veterans Affairs, 859 
F.3d 1072, 2017 U.S. App. LEXIS 10528, 16-1493 (Fed. 
Cir. June 14, 2017). 
In this case the U.S. Court of Appeals for the Federal 
Circuit (Court) refused to review, and dismissed for 
lack of jurisdiction, a petition challenging aprovision of the M21-1 Manual, holding that the

Manual is not subject to judicial review

 

The Court nonetheless noted that a veteran 
adversely affected by an M21-1 Manual provision can 
contest the validity of that provision as applied to 
the facts of his case under 38 U.S.C. § 7292.

 

Now once again will the va follow the law that a different story

 

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I dont want to debate Any thing.  My ex used to love to debate, and I have had my fill.  Knock yourself out..use M21 for cigar wrappers, fire starter, or to cite for your claim.  Im gonna stick with 38 cfr, case law, and USC.  I know that works.  

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Well today I founfd out why I don't have a bva decision on my smc r and o and loss of use.

I think lol.

 so I get two letter in the mail. One date Nov 12 saying I got 30 days to replie lol.

Doesn't say what will happen if I didn't respond. Smh 

So are they holding it a extra 30 days for the mail stuff.

Than  I got the ssoc denied the smc o and r and I guess the loss of use dated nov 16.

Nothing is on it not one piece of my evidence. Smh

Ok this is the thing this is a cavc remand.

The board and va one to put a unfavorable medical opinion in my record so bad they don't even want to let it go back to bva.

So I guess I will never get a decision because I will not do there exams.

They refuse to address my record or anything to do with it. This crazy.

Well I guess this cavc remand will never get a decision

I still have the petition to the court 

And the new appeal to the court for the other two issue that were part of the cavc remand.

Here go the letter and ssoc

That a really great ssoc with nothing on it. Lol.

All I can make of all this is maybe I have to wait 30 day to have it return to the board.

Plz don't ask why I refuse the exam I have been to over 9 exams and I have a 25 year record of loss of use.

I receive in home care and the hospital pay for it because if my loss of use.

I am in the ch 31 independent living program for loss of use

So no I am not going to anymore exams.

They can denied it but they will not because it not legal. To do this to a cavc remand

And the court will address it.

So I guess we are at a stand off lol.

This is crazy and the va process is to be veteran friendly. 

I will be posting the bva remand for all this dated June 29 2021.

That started all this

The court remand is from January 2021.

A whole year and I got two ssoc one in may and this one in Nov.

And they still will not return it to the board for a decision.

Thought they denied your claim when you refuse a exam.

 

 

 

 

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