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HERE WE GO AGAIN


blahsaysme2u

Question

here we go again. someone please help me. i know this has been talked about already but serious guys i am so fed up and i dont know what to do!

i have a favoable exam from 2020 showing SC from a C&P exam(by VES) that the VA sent me to.
image.thumb.png.1c68fe327ee230fe5e61c0515b06ad6c.png

 

last year they attempted to have me re-examined over and over again but kept scheduling for my right leg and foot...the claim was for the left leg and left foot...finally the cliam was denied beacuase the last exam i attended after comfirming that the exam was for my left leg with the VA, i found out from the doc upon arrival that it was in fact for the right leg again and was told to leave. the VA said i refused the exam and denied the claim.

i reopened the claim. now they are sending me back for re-exam, when there is already an exam on record, in my favor along with medical evidence showing nexus. 

HELP! this has got to stop! 

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Write a letter and  submit (fax) to your c-file (Janesviile.Wi.) for new evidence. Bring a copy with you in case the examiner hasn't seen it in your file.Go to the exam. Bring your favorable evidence also. If denied, appeal to BVA; don't even bother with HLR. Be cool, you'll win eventually. Just keep the eed date going!

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  • Content Curator/HadIt.com Elder

This seems to be a reasonable CUE with the VA ignoring a favorable C&P (from their own provider) in favor of an exam for the incorrect body part.

I had very similar problem with my heart claim where my "more likely than not" IMO was ignored in favor of the most recent C&P for the wrong condition. I filed a supplemental and simultaneously filed a CUE. The VARO took a look at it, read the evidence -again- and realized, oh gee whiz, we did make a mistake. They ended up granting in my favor based on evidence of record which was already in their possession.

Btw, I sent the supplemental just to keep the claim alive.

Edited by Vync (see edit history)
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4 hours ago, blahsaysme2u said:

last year they attempted to have me re-examined over and over again but kept scheduling for my right leg and foot...the claim was for the left leg and left foot...finally the claim was denied because the last exam I attended after confirming that the exam was for my left leg with the VA, I found out from the doc upon arrival that it was in fact for the right leg again and was told to leave. the VA said I refused the exam and denied the claim.

If your last rating is within 1 (one) year less than 365 days, then you can file a disagreement.

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I am quite sure I mentioned or posted this here on hadit.com but I recently filed two separate claims for EEDs, and the VA scheduled me for two separate claims for increases. I decided long ago to play dumb and ask each examiner why and what my appointment was for and see what the VA was trying to do. Sometimes the VA ask the examiners for the wrong medical opinions. So, both examiners told me that my appointments were for increases in my service-connected disabilities.

I told the examiners that I did not file claims for increases because my ratings were already maxed out for over a decade and that I filed claims for a better effective date due to VAMC medical records that were never reviewed and or adjudicated. I took copies of my medical records that proved my argument/disagreement, and the first examiner reviewed my copies and then wrote a very favorable medical opinion. The second examiner refused to review my copies but went into different VA computer systems and pulled the records up after I gave them to her and then she wrote up a very favorable medical opinion, but my problem is/was that the VA completely ignored their opinions and denied my claims for EEDs.

I then filed my appeals and the BVA already granted one of my EEDs and the second one is pending now. Not really sure if it is really ineptness on the VA’s part or something else but there are times when we have to appeal and let the BVA remand our claims and force the local VA to do the right thing.  

Keep in mind that in relative equipoise means both positive and negative evidence in the record and the veteran wins the benefit of doubt.

Edited by pacmanx1 (see edit history)
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41 minutes ago, pacmanx1 said:

If your last rating is within 1 (one) year less than 365 days, then you can file a disagreement.

they denied my claim- they have never SC my left leg or foot. its such a joke man...i been fighting this for years....they SC my right leg no problem...but my damn left leg they act like im making it up and keep trying to find new doctors to side with them...im so fed up

23 minutes ago, pacmanx1 said:

Keep in mind that in relative equipoise means both positive and negative evidence in the record and the veteran wins the benefit of doubt.

even more reason why i dont understand why they keep denying me...its so frustrating...

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  • Content Curator/HadIt.com Elder

@blahsaysme2uCorrection on my prior post. I did not realize your right leg was already SC. However, based on clear reading of the opinion you posted, it looks like you should get SC for your left ankle. The examiner definitely and clearly stated "left ankle", not "right ankle". Still very likely a potential CUE. 

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depends on which denial you are talking about...i have had several...

the one from 2008(again later i was SC for my right Knee/foot/ankle but not my left)- 

2008/10/15

image.thumb.png.0bb82a5f6aa02a5fed7329d53a03d505.png

2008/12/06

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i didnt try to re-open or fight these claims until 2012 when i was awarded my SC for my right knee, foot and ankle as well as my left ankle but not my foot or knee. 

2012/12/14

image.thumb.png.21299f8670f156d8164902a4a833cf25.png

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for some reason we didnt appeal this denial and keep the trail going- i was working with the DAV at the time and was very confused on the process and they convinced me i won and should be happy...it was not until i found Mr. BEBE at the Virginia VSO that we tried reopening this claim and when i found the new medical records- and obviously there were many in my C-file that were ignored that i printed off and took with me to the exam in 2020. then the VA started playing games with me- they kept sending me to exams over and over...and when i would call peggy i was told it was for my Right leg. after explaining 3x for 3 different rescheduled exams(which btw the excuse i was given for the re-exam for my left leg and foot is because the dbq was too old to be used- i bought this at first-now i know better) i was finally told on the last exam it was for the left leg by peggy and that i could attend and this was all behind me. 

as some of you know the story now- i attended this exam, the doctor explained it was for the right leg and foot again! after discussing with the doctor he told me to leave and he would send the exam back to the VA since my claim is not for the right leg or foot and the exam is not needed and a new exam needed to be rescheduled. next thing i know i receive in the mail the denial

below is the denial from the re-opened claim in December 2019 as a result of "not completing" the exam.

2021/07/30

image.thumb.png.a5efb3023ed4fedf61a4aef13161ee6f.png

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image.thumb.png.a13334cc59deb604be4abeffcbddd986.png

so here we are- and they are trying to schedule me again for more exams- i just dont get it!

Edited by blahsaysme2u (see edit history)
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  • Content Curator/HadIt.com Elder

 

 

On a side note regarding your SC right knee/ankle, keep in mind that if the VA denies SC because they claim your medical records are incomplete, but later grant SC after you found those same records which the VA was in possession of all along, they should grant the effective date of claim back to when you initially filed. Check 38 CFR 4.2, 4.6, and M21-1MR, Part III, Subpart iv, Chapter 2, Section B (4).

X.ii.5.A.1.c.  Identifying a CUE

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000177971/M21-1-Part-X-Subpart-ii-Chapter-5-Section-A-Revision-Due-to-Clear-and-Unmistakable-Error-CUE?query=undefined

Quote

Exception:  A failure to consider VA medical records, which were in VA’s constructive possession at the time of the prior decision, may constitute a CUE, if such failure affected the outcome of the claim.  See VAOPGCPREC 12-1995.

I was under the assumption that once an examiner writes an opinion in favor of granting SC for a disability, then you are solid (unless fraud can be proven). Any subsequent exam for the same condition would be merely to determine the rating percentage.

With the VA using contractors for C&P exams, the VARO will send them a letter instructing them what they are supposed to examine. When I had my heart claim, they outsourced it to LHI and simultaneously sent me a letter which detailed the purpose of the exam, the person performing the exam, their curriculum vitae (i.e. qualifications), and any other special instructions as to what the VARO needs them to do. I don't know which contractor is doing the exam for you, but this same information is available to Peggy. Call and verify exactly what is on that form. I know you are beating a dead horse, but if the information is still not correct, simply ask them to compare the claimed disability with what was on your claim form. You can also send an IRIS request and ask them to communicate with you by email. I did that a few times, but sometimes I simply never got a response.

For what it's worth, I did get a letter from LHI telling me all the info I described above. It matched exactly what I had claimed (heart attack secondary to side effects of SC migraine medications). While talking with the LHI examiner, they decided to ignore a lot of that. It's an odd situation because I was initially SC for TMJ, then secondary for migraines. The LHI examiner opined negatively on a heart condition causing TMJ instead of what I actually claimed. Have hope though because I got it overturned on appeal and because I had a "more likely than" IMO from a specialist who actually read my records and cared.

With respect to the VA saying you refused an exam, if necessary, ask for evidence proving that vs. your lay statement where you descibed the situation to the examining doc. That could be worth exploring...

 

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My advice is when contacting the White House Hotline is keep in mind that they are a part of the VA and was created to try to fix problems. Make sure you explain that you are already service connected for your right leg and foot and you filed a claim for your left leg and foot, and you have a favorable C & P examination, but the VA has been scheduling you for your right leg and foot and denying your request based on the wrong leg and foot which are already service connected. Try to be polite, respectful and calm. They are in a position to either help or not help but they could really get the ball going on the right track.  Since your current exam is well over a years’ old, the VA may still try to request an updated C & P exam, but it should be on the left leg and left foot to try to determine the severity of your disability/condition.

As stated, even though you have a favorable medical opinion, the VA still has the authority to schedule you for an update medical exam to determine the severity of your current disability, so don’t freak out if they do. Your other option is to file an appeal/Cue or disagreement and that would take some time.

 

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Pacman is absolutely correct. And like all of us say, never refuse an exam. I am sure that the VA will want an updated exam although you had already had that same multiple times for the same thing but this is where the incompetence of the exam can come into play.  

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20 hours ago, pacmanx1 said:

Try to be polite, respectful and calm.

best advice! i will certainly try my best 😉

20 hours ago, pacmanx1 said:

Since your current exam is well over a years’ old, the VA may still try to request an updated C & P exam, but it should be on the left leg and left foot to try to determine the severity of your disability/condition.

well i havent claimed the condition has gotten worse since that C&P exam- i have only filed NOD/appeal in regards to them ignoring the evidence that has already been presented...i cant understand how this would be fair to the veteran in any way. 

if this is the argument, lets go with it for a second- 

- i go to the new exam..the doc finds me not SC, which is in opposition to the original exam that was favorable. with the line of reasoning you have presented all the VA has to do is say, "maybe he was SC but now hes not because hes better so 'Denial of SC' award letter"...even though conflicting evidence is supposed to go for the veteran, they could spin this to say its not conflicting, just an "updated exam showed improvement and no SC"

this is all BS to me and shoudlnt be allowed at all- there should not be a reason to keep sending veterans to exams if favorable evidence is found from an exam- the case should be closed and move on to someone else that needs help...look how much time they have wasted on my claim when they could be actually helping someone else/working another claim- i re-opened this claim in 2019 and the exam in 2020 should have finished it....now 3 years later im still fighting over this junk

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1 hour ago, blahsaysme2u said:

I go to the new exam. the doc finds me not SC, which is in opposition to the original exam that was favorable. with the line of reasoning, you have presented all the VA has to do is say, "maybe he was SC but now he's not because he's better so 'Denial of SC' award letter"...even though conflicting evidence is supposed to go for the veteran, they could spin this to say it's not conflicting, just an "updated exam showed improvement and no SC"

This is speculation -

Trust me I feel your pain, the VA denied one of my claims for a decade and a half (15) years, five count them five inadequate VAMC C & P exams before the CAVC judge threw them all out and ordered me another VAMC C & P exam before the VA finally granted my claim. Even with all those negative C & P exams, my claim was still granted due to my in-service and post service treatment records were more positive than anything else. With the balance of positive and negative evidence in your records, in relative equipoise, the veteran wins the benefit of doubt. 

It appears for whatever reason, since your denial, no one at the VA is actually reading your claim/request to realize they are making a mistake and you have to keep going until they figure it out. 

 

 

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so i sent this earlier this morning to try and force the VA and VARO to adjudicate based off the evidence in hand. 

Quote

 

I am writing in regards to my claim submitted July 15, 2022 for my left knee and left foot loss of use due to fractures incurred during service.
i have had multiple C&P exams for this claim, specifically most recently on 02/03/2020 that showed favorable evidence of injury in service(The claimed condition was at least as likely as not -50 percent or greater probability) based on my service records and the exam performed. 
since then the VA and the VARO has requested multiple exams for my right leg, of which is already Service Connected and was not part of the claim. 
Now I am again being scheduled for another exam, this time for my left again, even though there is already significant evidence in the record establishing a current disability  and loss of use, in-service Connection, and NEXUS between the two. 
The delaying of this claim with more exams is frivolous. Based off of 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 BVA: "additional evidence should not be procured for the sole purpose of denying the veteran's claim" (1 Veterans L. Rev. 94 (2009).
CAVA 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).
Please imediately adjudicate the pending claim based evidence at hand showing service connection and affirm an earliest effective date of 5/24/2008 based on the new and relevant evidence provided of the medical exams from(38 C.F.R.  3.153-c): 
Bone scan 06-17-2004
DA-2173 dated 05-01-2007
DA-2173 dated 04-24-2008
DA-4856 dated 07-09-2004
Martin ACH dated 08-25-2004
Martin ACH dated 10-22-2004
Martin ACH dated 11-12-2004
x-rays from 05-25-2021

FAILURE TO COMPLY WILL RESULT IN Writs Of Mandamus At the CAVC

 

HERE IS THEIR BS RESPONSE:

Quote

 

Dear xxxx,
 

Our records indicate that an exam has been requested for "left foot fracture". You should receive notice as to the time, date and place of the exam(s).  Please visit http://www.benefits.va.gov/compensation/claimexam.asp for more information concerning VA compensation and pension exams.

Upon completion of your compensation and pension (C&P) exam, the examiner reviews your medical records and makes an exam report. The report is submitted to a VA claims processor to be added to your electronic claim file.  VA will then review your claim application, supporting documents, and claim exam report to make a decision on your claim.




Thank you for submitting your Inquiry with the U.S. Department of Veteran Affairs. It is our commitment to provide an excellent customer service experience to all Veterans and members of our Veteran community. To all who have served or continue to serve, we thank you for your service.

 

 

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ON TO THE WHITE HOUSE LINE. 

PS- i also uploaded a statement in support of claim along with every exam and xray mentioned in my statement. its already in my file but just making sure they see it!

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Of course you will get a generic response. But the main point is that now you have to wait longer because now you have to appeal. 

As always, dont exaggerate or falsify symptoms.  But, on the other hand, dont expect your VA examiner to know you have symptoms if you tell them "you feel fine" now.  EXPLAIN that your foot hurt to walk here, if this is the truth.  The examiner can not read your mind, and does not have a good way of determining your symptoms if you tell him you are "fine".  

Edited by broncovet
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Your c and p exam, on page 2, above states, "no current complaints".  

I see this statement as a "benefit killer".  

If you have no current complaints, (symptoms), then the best you can hope for is zero percent, but just as likely a denial.  

VA does "not" compensate us for "pain and suffering" a foot fracture in service.  It hurt, but now get over it.  

Instead, they compensate you for "CURRENT" symptoms, especially how they affect your ability to work.  

As an example, if you had a stress fracture in the service, and you can no longer walk, or walk with a limp, or walk only in pain, NOW, those are current symptoms which are compensable.  

But, "no current complaints" means you have no current symptoms, so why would you expect VA to pay you?

To fix this, when you go to the next exam, explain your CURRENT symptoms, (related to the benefits you are seeking compensation for).  

If you are expecting comp for pain and suffering in military service, you wont be getting those, sorry.  You get them for how your disabilities affect your life now.  

So, explain to the examiner your  current symptoms.  Is it painful to walk?  Tell them.  Can you not stand on that foot more than 10 minutes?  Tell them.  They dont read minds.  

Perhaps, you have explained this to other examiners, but the VA is going on this exam.  Its got a nexus but no symptoms.  

Remember, you get SC for a nexus (along with in service event and current diagnosis) but you get PAID for symptoms, not for caluza elements.  You have to have caluzas, but you also have to have symptoms.  

 

 

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Its my opinion this is not a "white house complaint" issue.  Your exam was inadequate because you dont have symptoms documented.  The white house is unlikely to document your symptoms, medically, and they probably wont require a VA rater to read your 5000 page cfile to find them, because that would likely take weeks and weeks, and your rater has a quota he must meet. 

Refusing new exams wont fix it.  Attending new exams, and explaining to your examiner your symptoms, however, may fix your problem.  

Dont expect VA to go through your entire medical history, to find those symptoms. While this "could happen", best is to  Put them all in one place in your exam "even if" they were documented by another doctor.  VA raters have time pressures, and mostly cant or wont read 4000 page file, which has to be completed often in a few hours.  Can you read 4000 pages in an hour?  I cant!!!  Im lucky to read and understand a dozen pages in an hour.  So make it easy for the VA rater to find your favorable evidence, dont have it scattered out in multiple exams.  

You see, this examiner said you had "no complaints".  You have to over come this, with medical evidence documenting your current complaints.  This wont happen with future exam refusals.  

Edited by broncovet (see edit history)
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Correct Broncovet. You have hit the nail on the head. I was going through my old c&p exams yesterday, one portion of the DBQ asked is there a complaint of pain, the examiner checked no. Further down the DBQ, the examiner write the date that I was seen at the emergency room for the same pain. 

Vets, we need to scrub our c&p exams. I know that the VA uses contractors to do exams and we can't get them, but I am sure in the future we will have a way to get them quickly inorder to file a timely appeal. 

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6 hours ago, broncovet said:

Your c and p exam, on page 2, above states, "no current complaints".  

see this why you guys are awesome! i have read this exam so many times and i never noticed this...this is very frustrating bc i recorded this exam(as i do all- this is not advice as this is NOT ALLOWED_DO NOT DO THIS!) i very plainly explained all the symptoms i have had since the fracture and there are numerous issues in my medical record regarding this. i guess i will attend the exam and make sure they see and note this...

thanks guys for your help and advice as always....and your eagle eyes!

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