(CAVC|BVA) Remands & (10) year rule in effect.

[Oakley]

I've been mediclally retired since June 27,2012 with the same disabilities I have today been 100℅ unemployable P&T AND THEN 100℅ Schedular from :(June 27,2012) and "housebound in fact,"  which is the SMC (S-2), from    (June 27,2012).

 

So the (10) year rule is in effect, if that even means anything, the VA will do what the hell it wants and break every rule on the way as they laugh about it,let's face it. 

 

So I couldn't get anything successful on my claims at my local VARO they just deny,deny,deny without even considering the evidence in front of them. So I appealed to the BVA which after a year granted everything (8) different contentions ALL  "GRANTED,"                      NO  "REMANDS, I was very excited about this, but the only concern was  the effective dates were way off, by years!

 

So, I filed with the court of veterans appeals or CAVC, about correcting the effective dates and the judge at CAVC agreed with me and ordered that it be "remanded," back to the BVA to correct the "Effective Dates," that are more consistent with his decision.

 

So here we are, the LOCAL VARO, denies everything I've asked to be awarded, several times over, I then send in the same disabilities, with same amount of evidence, that my local VARO had this whole time, and the "Judge" at  the "BVA grants" everything,  and the BVA judge also finds a "CUE,"  on the local VARO for not awarding me or even considering the  SMC (S-2) with effective date : (June 27,2012). Then the judge at CAVC agrees that the effective dates need to be corrected and order it remanded back to the BVA to correct this to be more consistent with this decision.

 

So the next part is where In have some issues with BVA GRANTS ME EVERYTHING THAT LOCAL VARO DENIED, THE CAVC JUDGE AGREES THE DECISION IS CORRECT BY THE BVA FOR AWARDING ME BUT MUST BE REMANDED BACK TO BVA TO CORRECT THE EFFECTIVE DATES, THEN ONCE THE BVA GETS THE REMAND, THE BVA JUDGE, NOT THR SAME JUDGE WHO MADE THE ORIGINAL GRANT OF ALL MY CONTENTIONS,  BUT A DIFFERENT BVA JUDGE, THIS WAS  (2) WEEKS AGO BY THE WAY WHEN IT WAS COMPLETED,  DOESN'T EVEN MENTION MUCH ABOUT CORRECTING THE EFFECTIVE DATES, WHICH WAS THE WHOLE  REASON FOR WHY THE  CAVC JUDGE REMANDED, IN THE FIRST PLACE, BUT THE BVA JUDGE WANTS ME TO GO THRU ALL THE EXAMS AGAIN FOR AID AND ATTENDANCE, AS HE DOESNT LIKE THE NOTES OR RESULTS FROM MY MEDICAL RECORDS?? 

 

SO THE BVA JUDGE THEN "REMANDS A REMAND,"  ALL THE WAY BACK TO THE VARO, TO CORRECT THIS, BUT KEEP IN MIND, THIS ALREADY AFTER A BVA JUDGE GRANTED EVERYTHING WITH THE EVIDENCE IN FRONT OF HIM, THEN A CAVC JUDGE, AGREES WITH THE BVA AWARD, BUT REMAND BACK TO THE BVA TO CORRECT THE EFFECTIVE DATES, THEN THE BVA JUDGE ON REMAND DOESNT MENTION MUCH ABOUT CORRECTING THE EFFECTIVE DATES, WHICH WAS THE WHOLE REASON FOR THE REMAND BY CAVC IN THE FIRST PLACE, BUT THEN BVA JUDGE REMANDS, IT BACK LOCAL VARO, TO HAVE ME RETAKE ALL THE EXAMS "AGAIN"  ON A DECISION THAT A JUDGE AT THE BVA ORIGINALLY GRANTED AND A CAVC JUDGE AGREED THAT THE DECISION WAS CORRECT BUT TO CORRECT THE EFFECTIVE DATES.

 

So as of right now the local VARO has the remand/appeal from the BVA.

  So is this legal? 

 

Whats your thoughts on this?

 

"(10) -year rule in Effect"

 

Thanks!

 

 

 

[broncovet]

The "10 year rule" actually applies to "severance of service connection".  

Severance of service connection differs from "a reduction in disability rating".  

Quote

§ 3.957 Service connection.

Service connection for any disability or death granted or continued under title 38 U.S.C., which has been in effect for 10 or more years will not be severed except upon a showing that the original grant was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge. The 10-year period will be computed from the effective date of the Department of Veterans Affairs finding of service connection to the effective date of the rating decision severing service connection, after compliance with § 3.105(d). The protection afforded in this section extends to claims for dependency and indemnity compensation or death compensation.

The 5 year and 20 year apply to reductions:

https://www.law.cornell.edu/cfr/text/38/3.951

and

https://www.law.cornell.edu/cfr/text/38/3.105

https://www.law.cornell.edu/cfr/text/38/21.414

 

 

 

[Marine Corp 69/70]

Oakley  You can go to your private doctor and have him or her fill out a DBQ that is good enough for ratings purpose, you have to make sure it meets the rating criteria, and then you can tell the VA that you want your DBQ to be used Instead of going to their C&P exam, then you are good to go.

[john999]

If you want to talk about delaying tactics the VA just made High Blood Pressure presumptive for AO after more than 50 years.  If you have AO induced High Blood in 1975 you would be long dead by now.

[asdf]

Most high blood pressure is controlled by medicine. I deal with veterans everyday with it dating back to the 60s and 70s and I guarantee they are not long dead.

[john999]

I guess I am talking about uncontrolled HBP.  You don't know you have it unless you get an exam.  Mine is not controlled well by medication. I am not just talking about AO and HBP.  I am talking or thinking about all the other AO diseases that were not service connected for 40 years such as heart disease, Parkinson's and diabetes. Plus there are about 20 cancers that were not connected for decades.  You could not even use the VA until the 90's when Clinton opened it up to all vets, and not just service-connected vets.

[Rattler]

On 9/6/2022 at 7:24 PM, Marine Corp 69/70 said:

Oakley  You can go to your private doctor and have him or her fill out a DBQ that is good enough for ratings purpose, you have to make sure it meets the rating criteria, and then you can tell the VA that you want your DBQ to be used Instead of going to their C&P exam, then you are good to go.

Use this format to waiver.  I have two questions? 1.  The BVA decision  No. 1 should have been a final decision baring the CAVC chaining something. So where they Final decision?  Questions No. 2 how can another BVA (BVA no. 2) Change a Final decision by the CAVC? It would appear to be a major QUE error to me for BVA No. to try and over rule the VAVC order. (See attached waiver to stop from having to take the C & P Exams.)

 

Challenge to C & P examiner competency.pdf DBQ Election, Duty to Assist Waiver, & C & P Decline Notice to VA Regional Office.pdf

Edited October 24, 2022 by Rattler767 (see edit history)

[pacmanx1]

 

8 hours ago, Rattler767 said:

Use this format to waiver. 

Rattler here we go again, you failed to redact your SSN which falls between 8258 and 8315.

Edited October 19, 2022 by pacmanx1 (see edit history)

[broncovet]

Lemuel posted:

Quote

Do the examinations.  I made the mistake of not doing the examinations because they were not ordered as remanded by the DRO.  That is just causing a delay in getting back to the BVA without a new remand for the examinations.

Lemuel joins the ranks of people who regret not attending c and p exams.  Some people learn the hard way.  As the police sometimes say, "we can do this the easy way or the hard way".  In Va benefits, the hard way is trying to get VA to excuse you for refusing exams.  While this is possible, its not the easy way.  

 

Thank you, Rattler, for your "DBQ Election" form above, which voices your interpretations involving M21 Mr and other regulations. 

The safest route is still to attend applicable exams.  Reason: 

Chevron deference means that VA gets to interpret its own regulations in a manner they see fit, unless Scotus determines its "arbritrary and capricious". 

And, VA has made clear their interpretation, that, "if a VA designated employee" orders an exam, that person has the decision making ability to determine if an exam is needed, not the Veteran. 

Veterans are compensated for attending C and p exams through travel pay.  And, Veterans do not get compensated for travel pay to an exam unless they attend the exam. 

Veterans also get compensation for disabilty benefits, but the VEteran is expected to cooperate and provide the necessary information required to determine benefit eligibilty. 

VA is NOT requred to compensate Veterans who refuse to file, or who fail to provide adequate information to verify their eligibility. 

Instead, VA is required to deny Veterans benefits to Veterans who do not meet applicable requirements, such as the Caluza elements. 

VA evidence is sorted into 2 parts:  "Medical evidence", supplied by a medical professional, and "lay evidence" supplied by the Veteran. 

Lay evidence is insufficient on its own to grant benefits, a diagnosis, nexus, and symptom documentation needs to be provided by a medical professional.  Veterans can not self diagnose their illnesses, and self provide a lay nexus that is sufficient for benefits. 

Instead, medical evidence is required in Caluza. 

While a Veterans lay evidence can not be dismissed "solely on the bases that he is an interested party", he still must have medical evidence to win his claim. 

While a DBQ "signed" by a medical professional may suffice to provide medical evidence, the decision maker in the claim has ordered a c and p exam, which makes the judgement call that there is insufficient medical evidence to grant the claim. 

Many many Veterans have been denied benefits because they did not attend a c and p exam.  Lay evidence is insufficient to document the diagnosis, the nexus, the symptoms, or the effective date. 

Simply attending the required c and p exam is the fastest way to obtain benefits, refusing an exam and submitting a DBQ is less likely to achieve the desired result, and more likely to put the Veteran on a hamster wheel of remands, that can continue until the Veterans death. 

This is why most Veterans advocates advise Veterans to attend c and p exams, and not to refuse them.  Its faster, easier, and more likely to produce a favorable result than refusing an exam. 

I can not, in good conscious, advise a Veteran to refuse medical exams, "even if" they provided a copy of your lay interpretation as to why a DBQ should suffice. 

"If" a Veteran thinks he is being sent to un necessary exams, in order for VA to "develop to deny", then he should simply attend the exam, then, if denied, he can enlist the services of an attorney who may elect to argue the VA was "developing to deny", where a judge will determine if that is the case.  The lay opinion of the Veteran on legal interpretation is likely insufficient, instead, the judge will review the regulations in their entirety, as well as case law and make a determination if this applies to you. 

Yes, you can voice your "lay opinion" that VA was developing to deny by ordering multiple exams, but that determination will be made by a judge, not by the Veteran. 

Refusing an exam is a "straight shot" to a denial or a ticket to a hamster wheel of remands, both of which are highly unfavorable to the Veteran. 

Some of the Veterans advocate firms who highly recommend the Veteran not refuse an exam are here:

https://cck-law.com/blog/va-rating-without-cp-exam/

Its also explained you could lose your benefits for not attending an exam:

https://cck-law.com/veterans-law/can-i-lose-my-va-benefits-if-i-don-t-attend-my-cp-exam/

Another firm agrees:

https://vaclaimsinsider.com/what-not-to-say-at-c-and-p-exam/

Still another:

https://www.veteranslaw.com/do-i-have-to-have-another-cp-exam-if-my-claim-is-denied/  

 

[Rattler]

12 hours ago, pacmanx1 said:

 

Rattler here we go again, you failed to redact your SSN which falls between 8258 and 8315.

OK I went out and looked at the redacted doc I posted with the above. I see nothing in it that has an SSI. Try putting a link to what you are talking about.

[Rattler]

broncovet

I agree with you in part and disagree in part. My experience is you need to dictate who they send you to and its ok to do that. If they are send you to an NP or Internist.  LHI tried to send me to a NP for complex orthopedics issues. I ask them to send me to an orthopedics surgeon they had none. The closest thing they had was an  Internist MD 120 miles away. They wrote it up so I got denied on the secondary connections for hips and the other knee connected to the bad one. They only gave me 10% on the bad knee.  Than 4 mo. latter the community care doc did a total knee replacement on. (mim. 100% for 13 mo.) I am go for an IMO & DBQ's this Friday with an orthopedics surgeon to correct the bad C & P Exam at my expense. Not everyone can afford to do this. I do agree if you don't show up for a C & P exam they will deny your claim for a no show. It is much easer to have them send you to the right doc. You can also request that the VA send you to an orthopedics surgeon at an VA medical center. 

Edited October 24, 2022 by Rattler767 (see edit history)

[Rattler]

broncovet

I also have to challenge anything that have to do with the VA Claims insider.  They use uncertified Claims Agents. Than the contract you sign with them requires vet to pay them thousand of dollars out of there back pay above and beyond what a certified claims agent or attorney would charge even if you don't win.  

[pacmanx1]

1 hour ago, Rattler767 said:

OK I went out and looked at the redacted doc I posted with the above. I see nothing in it that has an SSI. Try putting a link to what you are talking about.

Why should I make things up? Read your attachments again and again until you see it. I will not post it or give someone else access to it; also, how could I know that your last four is between the numbers of 8258 and 8315?

Edited October 20, 2022 by pacmanx1 (see edit history)

[Lemuel]

2 hours ago, Rattler767 said:

OK I went out and looked at the redacted doc I posted with the above. I see nothing in it that has an SSI. Try putting a link to what you are talking about.

On your document attached earlier to one post removed as were some of my attachments, I pointed out that you had not redacted the last 4 of your SSN.

Why do you think the VA and other civil hospitals have you stand back so you cannot hear other people securely identifying themselves.  The more we let out the less the scammers need to complete our identity to raid our bank accounts, get credit cards in our names, use our ID for medical care, etc.

Simply put, as pacman posts, the less we put out here on the public internet forums the more likely we will avoid one of those problems.  Getting identity theft insurance from our credit card company or bank is not enough.  We have to pay more attention as neither you nor I did in posting our attachments. 

I see what the forum controllers are trying to do.  Protect HADIT from getting a red flag warning such as you will find on auction.com when you try to look at a foreclosure property.  A recent experience I had looking to help my brother find a property to move off his mountain cabin nearer to his daughter.

I would like to continue to use HADIT to help myself and others.  I do not want it red flagged.

 

[broncovet]

I think maybe I know what is causing the discrepency between Pacman's suggestion that the ssn was not redacted, and others suggesting it was redacted:

There are several varieties of .pdf files.  Each has "differences":

Here are a few of them:

n Detail: The Different PDF/A Standards

• PDF/A-1: (ISO 19005-1:2005) PDF/A-1 is the original PDF/A standard, the most commonly used today, and the most restrictive. ...
• PDF/A-2: (ISO 19005-2:2011) ...
• PDF/A-3 (ISO 19005-3:2012) ...
• PDF/A-4 (ISO 19005-4:2019) ...
• Level b (Basic) ...
• Level a (Accessible) ...
• Level u (Unicode.   

Additionaly, I use "open office" for PDF files, which is still  different than Adobe Acrobat pdf files.  

The variances of the many .pdf files could well mean differences in what we see. 

Finally, many times files are converted both to and from other files to .pdf files, and what ever software converts them, also varies.   

[pacmanx1]

6 minutes ago, broncovet said:

I think maybe I know what is causing the discrepency between Pacman's suggestion that the ssn was not redacted, and others suggesting it was redacted:

There are several varieties of .pdf files.  Each has "differences":

I hope I am wrong, but I think that the poster missed redacting it. I say this because I can see where certain information is redacted but when it comes to what I posted on there is no redaction.

[Lemuel]

15 minutes ago, pacmanx1 said:

I hope I am wrong, but I think that the poster missed redacting it. I say this because I can see where certain information is redacted but when it comes to what I posted on there is no redaction.

I saw it the same way and noted on my first post after looking at it that the last 4 had not been redacted.  I use Acrobat Pro DC which redacts very well and is acceptable in the courts without being locked.  After that our attachments were deleted on your recommendation.  Thanks for looking out for us and conversely, HADIT.

The courts did allow the last 4 and YOB to be not redacted the last time I filed.  But now, I redact both in any filing.  Why bother with just half.  In rattler's case the first six digits of the SSN were xxx out leaving only the last 4.  I suppose that was on the court's securing requirements.

Some of my bank and credit card statements use the xxx's to blank enough of the account number to minimize mail theft id theft.  Mostly I get statements online where they do the same.

Even the credit score companies do the xxx with ID information or your credit reports.

 

[pacmanx1]

6 minutes ago, Lemuel said:

I saw it the same way and noted on my first post after looking at it that the last 4 had not been redacted.

This is something different and I can see the entire number. I worked in Personnel Administration for at least two decades and a half and I know when I see one.

[Lemuel]

7 minutes ago, pacmanx1 said:

This is something different and I can see the entire number. I worked in Personnel Administration for at least two decades and a half and I know when I see one.

I only saw what appeared to be xxx xx nnnn which is the format for an SSN partial on my medical records.

My BVA case has been assigned a series of letters and numbers for me to respond to by FAX. It could be something like that you are referring to.

I assumed Rattler's attachment was from the VA and the number at the top of the page in that format was the last 4 of the SSN.  Of course, it could be something else.

[Rattler]

On 10/19/2022 at 11:30 PM, pacmanx1 said:

Why should I make things up? Read your attachments again and again until you see it. I will not post it or give someone else access to it; also, how could I know that your last four is between the numbers of 8258 and 8315?

Unless you are removing the blocked area to read the SSN I see none. The document posted above is posted for people to cut and past into there own filing. It was provide to me by a third party. Where you are getting "numbers of 8258 and 8315" from I have no idea as they are not mine. It could very well be the version of pdf editor that the person was using.  When I redact something I have software that will erase the info out of the Doc.

[Rattler]

The second issues is if you are still talking about the doc Tbird removed it was posted by mistake.