Loss of use more VA games to watch for

[Mr cue]

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.

[Mr cue]

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)

[USNDW]

I did get loss of use for right leg. My rating is 60% following a failed replacement. 60% is the highest rating allowed per lower extremity and I had my treating physician respond to questions like "is there any left beyond what a prosthetic would provide"?

I did not have any exams after stating 60% was the max rating, even for amputation. Maybe I got lucky and had a sane VA rating officer

[Mr cue]

Ok my ? Is if you have loss of use of one leg.

Why wasn't you give smc m for loss of use.

[Mr cue]

Posting to give other example of developing to deny. Example of why I refuse any more exams in my case

Ok in my case I have had 5 comp for loss of use of upper extremity for smc.

I even had specialized loss of use to be order if the rater can't make the determination. With the evidence of record.

Well they denied the claim and didn't address anything or my record or any of there 6 comp exam.

Reason and base give You don't have loss of use equal to a amputation.

 

That ain't how it work I post the cfr

Ok I appeal to the cavc. I won

they remand it back to bva.

The bva judge remand it back to VA again the  reason this time Because the examiner has never made a determination of loss of use.

Ok the judge understood I was going to refuse anymore exam.

Judge state on the remand order if veteran refuse a exam. Examiner should make a determination on the medical record.

Ok we address by law the examiner is to make the determination.

Cfr state don't ask the medical examiners to make the determination.

So now because I refuse there exam again

 they wouldn't denied the remand just keep hold all my issues. For 7 months

Shopping for a medical opinion qtc lhi to get a different medical opinion.

They wouldn't give a medical opinion without a exam.

So i withdraw the remand an stated it not a legal remand and VA is refusing to address my evidence. An are hold my other issues remand by the court.

I wasn't going to just sit there. I withdraw the remand.

 

Back to the cavc a 2 nd time the cavc remand it again this time saying the withdraw shouldn't have been accepted.

An basically they did address my favorable evidence.

Now it back a bva again. Do you think I am going to play the exam game. No.

I have in home care pay for by the VA hospital. For my loss of use.

they will not address my 25 year record over 5 bva decision that are part of my record that address my loss of use.

So this is why and when I feel a veteran can refuse a exam. 

If you are applying for benefits the first time I think ever veteran understand.

They need a comp exam.  An refusing it with no evidence or medical opinion in your record. Will get you denied

But if they keep ordering the same exam over an over. You have the right to refuse. You don't have to stay on the exam rollercoaster.

But now you will never get a copy of the exam to see if it was favorable.

So they can keep ordering them.

This is my opinion and experience.

 

 

[Whodat]

I do see your point. People see things differently. 

I do understand the game that is being played. VA knows or should I say that the RO knows that if they order a new exam, it might be unfavorable. That's the exam that they will use.  But here is the problem, the examiner says they have reviewed the vets smr and filed. Bold face lie. Isn't past c&p exams are in the medical records? If it's and outsourced contractor, how could they review smr if the VA don't send all records. But they stated that they have reviewed it. 

 

 

[pacmanx1]

Here's the thing a veteran can claim the VA is doctor shopping, but it is still up to the VA/BVA/CAVC to make the decision that no new C & P exam is needed/warranted. A veteran can say that the VA should have enough evidence in his or her records to make the decision but even that may not be true, especially if it is a remand, that should tell the veteran something is missing, the BVA and or the CAVC already reviewed the file, and a new/updated exam is needed. Again, even if the veteran gets a new unfavorable exam the BVA/CAVC could still make the decision based on in relative equipoise of the records but if it is not enough evidence then the claim will most likely be remanded. Past exam may be outdated and not necessarily relevant, if an appeal is going on for over a years’ time the VA will most likely request a new/updated medical opinion.

Now for reviewing the records, one of my last LHI C & P exams that I had, I took all the relevant medical evidence to prove my request for an EED, but the examiner refused to look at or take the copies. What the examiner did do was take the dates that I was referring to and went into multiple different VA systems and pulled all the documents up and then wrote an excellent medical opinion that my symptoms were treated by the VAMC, and I won my EED. So, in this day of everything being electronic it is possible for them to review the veteran’s records. Now with all that said, I can say this because I was sitting right in front of the computer that was facing me and I saw the examiner opening each different system. From what I gathered she was in the VARO, VAMC and the Community Care system where I got my last favorable DBQ right before the VA sent me to the last C & P exam. Now I am quite sure that all examiners may not do this, but the VA do give them the access they need to make a proper medical opinion.

Edited September 30, 2022 by pacmanx1