(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!

 

 

 

[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

[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

[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