I Think Not

[63Charlie]

 

Instead of developing evidence for the feet and ankles claims I recently filed (neuropathy, secondary to my service connected pes planus and arthritis), the VA now wants me to have a General Examination by QTC.

Makes no sense at all to me.

I'm not interested in having the VA open all my P&T disabilities to scrutiny because I filed these new secondary claims.

Anyone have some solid advice to offer?

 

 

 

[63Charlie]

https://community.hadit.com/messenger/77823/

Link to "supposed" VA employee brokensoldier244th personal message to mine me for my personal info on this board as proof of my allegations.

We all should know by now that the rules don't apply to VA employees.

Only veterans.

How now brown cow?

Edited September 20, 2022 by 63Charlie

[Lemuel]

4 minutes ago, 63Charlie said:

Does anyone know if there is a precedential opinion by the CAVC or Fed. Circuit pertaining to unnecessary VA C&P exams?

I'd like to cite the relevant opinion to the VA when I submit my formal statement.

The only thing I have seen in regard to C&P exams is "Affirmed" on the part of a BVA decision to affirm a decision to deny a claim on the basis of not doing the examination.  I do not remember seeing an affirmation of a reduction in a rating because of not doing an examination except in the case of a temporary rating.

I can search on Fast Case if you like but it is not the best search for cases based upon the issue of the case.  Takes lots of time to weed out the unrelated cases which I do not have right now.  Maybe next week.

I never downloaded those cases because I did not think they were relevant to my case, and I only subscribe to CAFC decisions.  To see CAVC decision go to the CAVC website and research their decisions.  Once you have a case name then Fast Case can locate the CAFC appeal if there is one.

[Mr cue]

These are the closest decision that I have found but they only address the bva handling of a cavc remand.

The Court reminds the Board that “[a] remand is meant to entail a critical examination of the justification for the [Board’s] decision,” Fletcher v. Derwinski,

1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in accordance

with 38 U.S.C. § 7112.

Mariano 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)

Might also look at:

Adams 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.”

Now the thing is for me is to get the bva to follow the law this time on my cavc remand.

 

 

 

 

[broncovet]

I agree with Tbird.  "NOT attending a c and p exam" is a perfect excuse for VA to deny you.  Even if you were able to win this on appeals, do you really want to add years to your claim by refusing a one hour exam?  I dont.  Its a no brainer.  VA calls for an exam, you go.  

"Fighting VA" on exams is unlikely to be productive.  They have sole discretion on whether or not to order an exam, we dont get a say in that.  

While I may be criticized for "not fighting", I limit my fights to those I get paid for.  Or at least might get paid.  

The risk/benefit ratio of not attending an exam is NOT in the Veterans favor.  THERE is a high likelyhood of a denial, and a low likelyhood of anything favorable happening by refusing an exam.  

If this is about "fear of reduction", then address that fear by reading, again , the regulations about all the stuff VA has to do to reduce you, "especially" when You are P and T or over 5 years service connected.  

The VA cant reduce you, "unless" you have "actual improvement under ordinary conditions of life"..

source:  https://www.law.cornell.edu/cfr/text/38/3.344

Sometimes "fear of reduction" makes us make bad choices, like skipping an exam.  

Skip a c and p exam at your own risk.  I dont recommend skipping an exam "unless there is a compelling reason" and you can reschedule the exam.  

[63Charlie]

4 minutes ago, broncovet said:

I agree with Tbird.  "NOT attending a c and p exam" is a perfect excuse for VA to deny you.  Even if you were able to win this on appeals, do you really want to add years to your claim by refusing a one hour exam?  I dont.  Its a no brainer.  VA calls for an exam, you go.  

"Fighting VA" on exams is unlikely to be productive.  They have sole discretion on whether or not to order an exam, we dont get a say in that.  

While I may be criticized for "not fighting", I limit my fights to those I get paid for.  Or at least might get paid.  

The risk/benefit ratio of not attending an exam is NOT in the Veterans favor.  THERE is a high likelyhood of a denial, and a low likelyhood of anything favorable happening by refusing an exam.  

If this is about "fear of reduction", then address that fear by reading, again , the regulations about all the stuff VA has to do to reduce you, "especially" when You are P and T or over 5 years service connected.  

The VA cant reduce you, "unless" you have "actual improvement under ordinary conditions of life"..

source:  https://www.law.cornell.edu/cfr/text/38/3.344

Sometimes "fear of reduction" makes us make bad choices, like skipping an exam.  

Skip a c and p exam at your own risk.  I dont recommend skipping an exam "unless there is a compelling reason" and you can reschedule the exam.  

 

To sum this up, I submitted new claims for distinct and separate disabilities from my currently rated static disabilities.

 

I am NOT asking for an increase for any of my static disabilities.

 

There is no medical evidence supportive of sustained improvement for any of my static disabilities.

 

I won't subject myself to a general examination as it is my right to keep the VA from scrutinizing my static claims.

 

If the VA denies my new claims just because I don't go to their general C&P exam, so be it.

 

I'll fight if the need arises.

 

Your opinion is noted.

 

 

 

 

 

[broncovet]

Do as you please..its your benefits.  

 

Others have refused exams, and Im unaware of a single Veteran who has gotten additional benefits by refusing exams.  If any have, please post your results.