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

[Mr cue]

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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[broncovet]

Unfortunately "the law" is that the VA has "discretion" on whether or not to require a c and p exam.  Their discrection, not yours.  And, if you dont comply, (with the c and p exam they deemed necessary), you will likely be denied.  

https://cck-law.com/veterans-law/can-i-lose-my-va-benefits-if-i-don-t-attend-my-cp-exam/#:~:text=If you miss your C%26P,immediately and ask to reschedule.

Have you actually read your medical file and "know" that your loss of use "is" documented?  

Its not enough that "another part" of VA says you have loss of use (indepedent living), they have different criteria than VA benefits.  If the criteria for Independent living was identical to benefits, then everyone with benefits would get independent living.  

Did it occur to you that VA could have lost some/all of your evidence of loss of use?  

If that happened, I promise you would not be the first that ever happened to.  (It happened to me).  

TO SHORTEN A very long story, the burden is on the Veteran to establish proof he or she is disabled, that burden is not on the government.  This has been going on for decades, and, indeed is explained in 38 CFR 3.156, when records are lost then found.  

However, there is nothing that says what happens when these records dont exist.  That is because, unless you have PROOF you dont get benefits.  You must have the caluza elements, and, for SMC you must have evidence of the applicable criteria.  

I dont know if you have evidence in your file for SMC loss of use.  You may, or may not...the evidence may be there, but it may not be in VA's possession.  

OR, in some cases the evidence is there, but VA does not read it. 

There is no penalties for a VA employee not doing their job.  One way is called "top sheeting".  They look at the top 2 or 3 sheets in the file, then say, "nope.  No evidence.  Denied."

Now, the burden is ON YOU, to come up with the evidence VA says isnt there, because some va employee was too lazy to read your file.  

I can even sympathize with them.  Ok, they have to do a quota.  Lets say they have to complete 1 claim per day.  (Its actually much more).  So, your file has 3500 pages, like mine, and some rating specialist has to read 3500 pages in a day.  Except for some of the fastest speed readers, that can not be accomplished in an 8 hour period.  That is reading 400 pages in an hour.  Im a fast reader, and I can read maybe 40 pages in an hour.  So, they dont read everything.  This is a systemic management fault.  But, some have figured out a work around.  

They do a search for terms like, "at least as likely as not', OR "PTSD"...TO SEE IF YOU HAVE A PTSD diagnosis or a nexus.  In other words they dont always have to read 3500 pages, they depend on computer software to scan and look for key words.  

So, if the computer does not have those terms, its an easy denial.  Next.  

One problem with this:  Many of my records are "hand written".  Well, the software does not read doctors hand written notes well.  That is why when you go to the doc nowadays, the va doc types your stuff right into the computer.  There is no paper, in the docs handwriting, that says stuff.  

But, the software does a poor job of reading handwriting.  So, your loss of use could either be handwritten, or, it could be lost in cyberspace, or, deleted (on purpose or accident, it does not matter).  

Do you even remember why or if you deleted stuff on your computer?  I know I cant always find stuff I thought was on my computer.  

In a tug of war stubborness contest with VA, you are unlikely to win.  If you get tired, they put in a new fresh employee, who is young and not tired.  

[broncovet]

"The law" is somewhat stacked against Vets.  Chevron Deference, a US Supreme court decision, basically says "the agency" (va) gets to interpret their own regulations.  

This means the law gives VA a rope to hang us with.  Allow an example.  

"Benefit of the doubt".(BOD)  That is in the regulations.  But, what does it mean?  Does it mean what WE think it means?  Nope.  It means what VA says it means.  

They think "BOD" means we have to prove every word, every time and get denied, and, if "one thing" the VA wants is missing, you havent proved it and denied.  

Chevron deference needs to be overturned.  https://www.law.cornell.edu/wex/chevron_deference

[Mr cue]

I respect your opinion on what the va can and can't do.

But nothing you stated has anything to do with what I am explain to other veterans.

If you feel the va can do what ever and veterans shouldn't fight that your thing.

I will be posting the remand to help other veterans who may not understand how to fight for there benfits.

Last what does a caluza elements have to do with smc benfits.

That is for service connection.

If your read they are saying I have loss of use but they need to do exams again to see if it worse or got better.

Like I said this is a cavc remand

I have posted the court case.

That explains a cavc remand isn't a do over for dva and can't be used to introduce new evidence against the veteran.

I understand that you have never fought a case at the court.

But it's not about evidence it about the law.

I refuse the exam and I still can't get denied.

 

 

 

 

 

 

[Mr cue]

Here is the loss of use remand from June 29 2021.

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

 

 

 

 

Ok here is the bva remand after the cavc remand it.

Let's brake it down.

The judge is claim my cavc remand issue downstream appeal. 

To not address them  smh.

not one word in the remand that  this is a cavc remand lol

See how the judge say I have no exam that determent if i have loss of use.

The examiner is not to make  determination the rater is. This law

The judge speak of the loss of use specialize exam and refuse to accept it.

Because the examiner didn't make the determination.

Do u see he took a va video appointment note from March 2021 and try to say my condition is better.

So they need to order more exam.

The judge even understood I was going to refuse any more exams.

 

But he state after the exam the examiner should make the determination than. Smh

Now look at the ssoc does it have anything about loss of use on it.

So we're did all this go.

I guess it just will not get a decision until they are able to find a doctor to put in a unfavorable medical opinion.

And now they will not even return the smc r or o  back to the board again.

Ok after today I will not be sending anything else about this I will let it sit.

And start the fight to the cavc and I am put a motion to advance my case again at the court next week.

I still have the petition at the court and it's been with the judge  for over a month.

So the fight continues.

Something that really get me is that no person working on a veteran case has to ever call or have one conversation with the veteran.

This need to change.

 

 

 

 

[pacmanx1]

1 hour ago, Mr cue said:

See how the judge say I have no exam that determent if i have loss of use.

Your June 29, 2021, BVA Decision states that in order for them to make an accurate decision, they need to determine the severity of your disability. So, you need to have updated medical notes that support your claim for loss of use and that your July 2019 Examination failed to give a Medical Rationale. Due to the fact that you are requesting additional benefits, the VA can and normally do request a Medical Opinion and a Medical Rationale. Based on your post, you have multiple records that prove you meet this higher level of SMC so one negative Medial Opinion and Medical Rationale will not hurt your claim, you would still win on appeal which you are already in. Not playing devil’s advocate but by refusing to an updated Exams only makes the Board think that something is off in your request. I am not here to tell you what to do but the simplest and the fastest way to get your benefits is to provide the new evidence. You say that you need these funds so you know, do what you have to do so you can live a little better and move on. The decision will still have to be returned to the CAVC if you disagree.  

[Mr cue]

YeA it sounded good but I ain't going to no more exams.

My report has a rational and state it is due to my neck elbow/hand.

There rational is that the doctor didn't make a determination of loss of use.

The examiner isn't to make that determination the rater is.

It's a game I don't feel like playing anymore

They have all type of evidence even advance my case due to the evidence.

They can just denied it.

I been playing this game for 4 years 9 comp exam and he address only one.

 

We will see what they do next.