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Loss of use more VA games to watch for


Mr cue

Question

Well I just thought I would bring this up it may help other watch for this game.

Loss of use under smc benfits.

Well the game is the VA will  keep ordering exams stating the examiner need to tell if you have remaining function.

The VA manual even state to use considerable care when ordering exams.

Well in my case I have had 6 comp exams  the specialized loss of use exam.

An they still wouldn't address my case smh .

Just venting a little 

Ok here is the rule on smc .

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)

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.

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  • Content Curator/HadIt.com Elder

I don't know much about loss of use, but it sounds pretty clear that any exam must restricted to just the extremities involved.

Might want to inquire with the VA about why they are going "exam happy" instead of following their own guidelines...

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18 minutes ago, Vync said:

Might want to inquire with the VA about why they are going "exam happy" instead of following their own guidelines...

Man I been trying to do that for a whole year.

I am now at the cavc wait on the decision.

I just be point out there games so other can be aware.

What If I told you the bva judge told the VA if I refuse more exams. Do a ace exam.

Well for 5 month they send it  was return from lhi. Qtc VA hospital.

With no ace exam .

6 month va tell me I have to do a in person exam.

I said  I refuse they just denied my claim an didn't address my  history or anything .

I had to withdraw the loss of use remand at VA to get it return to board because they refuse to return it.

So I am at the cavc the VA lawyer has already ask for remand on the loss of use issue.

I need the court to address all this because I will be doing the same thing on remand again.

The VA will say they need the examiner to say if you have functional loss.

A keep send the file for a exam.

When the rater is to make the determination.

Just be point out there game I learn.

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The rater cannot make a decision / finding without seeing medical evidence (in person C&P exam or ACE process) OR LAY EVIDENCE.  If you've provided a significant amount of lay evidence, the rater has to consider the probative value of that evidence.  However, this is a slippery slope with lots of precedential case law you can research at http://search.uscourts.cavc.gov/.   Generally speaking, refusing a VA medical exam (even though the VA may be "developing to deny" your claim) will work against you.

Good luck.

Chuck

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Many times "I thought" it was documented in my cfile, only to find out it was not.  

If you have loss of use "documented in your medical records", not in your head, and VA continues to ask for exams for "evidence already in there", and you can document THAT, well that sounds like developining to deny.  

Sometimes, some of us have a tendency to "overthink" stuff.  I know I do.  

Instead, my advice is to comply with VA's request for an exam..if it is redundandt, and the evidence is already there, wait for the envelope, and, if denied, appeal it.(again, if necessary).  

Dont "just assume" that the evidence is already there, but instead, read your file to see if its there.  

Often, I have found there is missing evidence.  It never ceases to amaze me how key evidence manages to disappear from our file.  

If that happens, my advice is to "make that evidence" re appear, by resubmitting it as "new and material evidence" under 38 cfr 3.156 b.  If your claim is pending, and it is, if its "all about SMC", and there is missing key evidence in your file, then you should get the effective date "when" the doc documented your loss of use.  There is no "claim date" with Smc, as far as effective dates..the effective date of smc is the date the doc said you became eligible.  

My advice is to review your file, and compare, if possible, what your file says "now", vs what your file said when your claim was denied.  

I think Mr. Cue has an attorney, so he is likely on that like white on rice.  

You can help the attorney, for example, if you review the file, and you notice, "Where is the July 2, 2008 exam, which is in my copy of the medical records, but not in the copy  of my cfile which I ordered in 2010?  

I found it to be rather easy to get an award with 38 CFR 3.156b, "whenever" there was missing key, relevant evidence, as I explained, above.  

Remember you are "up against" res judicata.  Res essentilally says that if a judge has already looked at that evidence, and rendered a decision, then that decision is final, absent new and relevant evidene not in the possession of the judge at that time.  

You cant just go "rater shopping" or judge shopping to find a veteran friendly judge.  But, as you have pointed out, the BVA has to give a reasons and bases for decision.  

And, they need to explain why obvious evidence in favor of the Veteran was not considered.  

That is basically a "reasons and bases remand"...

So, if there is already an examiner that opined you have loss of use, and you were denied, your attorney can appeal based on inadequate reasons and bases as to why this favorable exam was not considered.  

Yes, its a game, unfortunately.  The 500 or so lawyers who work for VA have to show they have been doing something "other than playing donkey kong".  They are hired to represent the VA's interests, not ours.  So, the lawyers think up ways to deny us.  (This is lawyers who work for VA, not lawyers we hire, remember).  

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  • HadIt.com Elder

Does loss of use mean total loss of use? Both my feet are 40% each but I can still use them to an extent.  My left foot is getting worse, but must I have it amputated to get loss of use?

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  • Content Curator/HadIt.com Elder

@john999I found this over at CCK Law which says, "amputation is not required in order to experience loss of use"

https://cck-law.com/blog/va-amputation-and-loss-of-use-ratings/#:~:text=According to VA%2C loss of,to experience loss of use.

 

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See the thing with me on this loss of use thing in my case is the VA bva keep send my record to the examiner to make the determination.

I have a 25 year record over. 10 or 12 comp exam that are part of my record.

They even send me to the specialized loss of use comp exam. 2 times.

An I still can't get a decision.

The bva judge even stated if I refuse another exam to do a ace exam smh.

After 6 month of shopping for the exam. I just withdraw it and stated that I thought this is not legal.

Well it's with the judge to see how see take care of it

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)

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