Jump to content
VA Disability Community via Hadit.com

 Ask Your VA Claims Question  

 Read Current Posts 

  Read Disability Claims Articles 
View All Forums | Chats and Other Events | Donate | Blogs | New Users |  Search  | Rules 

  • homepage-banner-2024-2.png

  • donate-be-a-hero.png

  • 0

VA can not Make you Take C & P Exams with the purpose of obtaining evidence to justify a denial of the claim

Rate this question


Rattler

Question

  • Community Owner

I will open up this can of worms....

 

VA policy: "Decision makers may not arbitrarily or capriciously refuse to assign weight to a claimant's evidence or develop with the purpose of obtaining
evidence to justify a denial of the claim" (M21-1 V ji.3.B.1.a). This prohibition was emphasized in a law review article published by the BV A: "additional evidence should not be procured for the sole purpose of
denying the veteran's claim" (1 Veterans L. Rev. 94 (2009)). Even CAVe has strongly affirmed this policy: "Because it would not be permissible for VA to undertake such additional development if a purpose was to
obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue further development where such development reasonably could be construed as
obtaining additional evidence for that purpose" (Mariano v Principi, 17Vet. App. 312 (2003)).

 

 

Edited by Rattler767
Link to comment
Share on other sites

Recommended Posts

  • 0

You are correct as far as that goes. The issue is not all veterans know what is valid evidence. I recently did this for my own claims (Tinnitus and an increase for migraines). The result? Denial. Expected. Took it to a Higher Level Review, pointed out the appropriate CAVC cases and was granted both. How many veterans know to quote CAVC cases? Not a lot. So while you can quote 'policy', you will still need  to point to the specific CAVC case, 38 CFR or 38 USC law on your specific claim in order to prevail. That can take a lot of research that many veterans are not willing to put the work into. Be careful when you state that the VBA cannot 'make you' go to a C&P exam. What evidence is the veteran submitting? DBQ? Nexus letter? Lay evidence? Is this evidence adequate? Lots of variables to be making such a blanket statement.  

Link to comment
Share on other sites

  • 0
45 minutes ago, Rattler767 said:

I will open up this can of worms....

 

VA policy: "Decision makers may not arbitrarily or capriciously refuse to assign weight to a claimant's evidence or develop with the purpose of obtaining
evidence to justify a denial of the claim" (M21-1 V ji.3.B.1.a). This prohibition was emphasized in a law review article published by the BV A: "additional evidence should not be procured for the sole purpose of
denying the veteran's claim" (1 Veterans L. Rev. 94 (2009)). Even CAVe has strongly affirmed this policy: "Because it would not be permissible for VA to undertake such additional development if a purpose was to
obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue further development where such development reasonably could be construed as
obtaining additional evidence for that purpose" (Mariano v Principi, 17Vet. App. 312 (2003

 

Well glad to see you understand the law.

Link to comment
Share on other sites

  • 0

It's all a good point and I have learned a lot from this thread. Dustoff stated that how can you prove it. 

My question is once you have a c&p exam that's favorable, who does the ordering for a new exam and why? I was in that situation?

Also when a claim is filed with strong evidence, who makes the decision of a DTA? I am assuming VARO so this is why I appealed this time. The VA sent me a roadmap on what I needed to do, I did, first a DTA followed by a new exam with the same examiner. 

Link to comment
Share on other sites

  • 0
13 hours ago, Dustoff1970 said:

Problem is how do you prove the VARO did this.  Only a court appeal review can say yea or nay.

In my case I had two defer and 5 comp exams and a specialized loss of use exam. They didn't address's any of the exams. Because they were all favorable.

I appeal to Cavc they remand the appeal back to the board.

The bva remand it again for a exam I refuse anymore exam.

Judge stated if I refuse a exam get a medical opinion without a exam. Smh.

Qtc send me a letter stating there not give a medical opinion without a exam.

They Try the whole I refuse a exam thing. To denied the appeal.

Well I appeal back to Cavc point out to the cavc that they were developing to deny an are just ordering exam to introduce new negative medical opinions

An point out all the favorable evidence and exams that I have an they refuse to address.

I won the cavc remand back to the bva  to address the favorable evidence.

 

I am not fight a new exam  or medical opinion or anything.

Because I refuse there exam.

I posted the bva judge decision were it stated if I refuse a exam get a medical opinion without one.

I don't make this stuff up.

I think this is how you show it.

 

 

 

Link to comment
Share on other sites

  • 0

see my new post about HERE WE GO AGAIN! i am trying to post question to Ask VA but its down. soon as i get in i am using this along with my evidence and the favorable C&P exam already ordered/completed by the VA by VES. i will then contact the whitehouse line...im done playing their game...time for a ref to step in and call fouls. 

ill keep calling qtc to request rescheduled exam until i get an answer or it gets canceled by the VA....this is my new plan of action for this BS

Link to comment
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
×
×
  • Create New...

Important Information

Guidelines and Terms of Use