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

[Rattler]

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 September 29, 2022 by Rattler767

[Rattler]

On 10/14/2022 at 2:34 PM, blahsaysme2u said:

@broncovet

man i appreciate you i really do and please dont take this wrong way- but i dont think i ever said i wasnt going to attend...

delaying by requesting reschedule until the va makes up their mind to either adjudicate or provide adequate answer why a new C&P is needed is completely different from refusing an exam. i also dont tell anyone else what to do or give advice- i am simply saying what im doing and getting input on how it sounds looks etc- instead of quoting regulation that has nothing to do with what i ACTUALLY said and posted about.

really in all fairness i respect your knowledge, and really appreciate everything you post and i hope this is coming across as sincerely respectful as i mean it to be- but i think arguing over a presumed/or misunderstood line of reasoning isnt really fair to the OP or those who come to read the post

That is the point of the waver.  You do not have to take the assigned exam.  My point is this I was ask to do another exam for an IMO with another service other than VHS and the PHD that did 2 DBQ's and an IMO that got me my 70% PTSD and 100% UI. I called and told the new service that I would only do an exam with the PHD that did the good report. They did not have him in there system because the PHD would not work with them because they required him to jump through extra hoops to get paid. (I knew this because I ask him who he worked with.) broncovet is right in that you have to be carful how you you tell them you are not going to attend an exam. But you have the right to stop them from sending you to mutable exams for the same issue if nothing has changed with your condition.

I think the letter you wrote is a good one. It will be interesting to see what happens please keep me posted.

[Dot09]

My advice is always attend the exams unless you can get prior reason from them not to go. By not attending that is always enough reason to deny or reduce for failure to go. Granted we all now by the Va love to imo shop but I still always recommend that you properly get the exam dismissed. That’s my two cents.

Edited October 30, 2023 by Dot09