Considering skipping C & P exam

[Aquaria]

Put in original claim Oct 2021 was granted sc for peripheral neuropathy May 2022 with no mention of SMC. May 2022 put in for SMC using decision letter for the neuropathy. July 2022 was awarded SMC based on the neuropathy. Put in for HLR for the effective date of the SMC as they only back dated it to my request not the condition that awarded it. HLR found duty to assist error and instead of just fixing the date they want me to do another C & P exam. I contested nothing from the initial award for sc for the neuropathy and only contested the smc effective date. To me, it seems like a witch hunt to try and reduce my benefits. In order not to have conflicting evidence I am considering skipping the exam as if they had enough information to award the smc in the 1st place there should be no reason for this exam....

 

Fyi I'm 100% P & T with SMC O because of the neuropathy....

 

 

Update 1:

 

Options told to me by Va hotline are as follows

 

1. Go to C&P exam

       Roll of the dice could go either way

2. Skip C&P exam 

       VA proceeds without it    

3. Withdrawal HLR 

       For go the back pay run no risk of a reduction

 

Update 2:

Not sure if it helps here's my SC's with effective dates

 

0% right ilio-inguinal nerve idiopathic small fiber neuropathy (10/2021)

 

0% left ilio-inguinal nerve idiopathic small fiber neuropathy (10/2021)

 

40% left upper extremity (dominant) idiopathic small fiber neuropathy (involving all radicular groups of nerves) (10/2021)

 

0% left external cutaneous nerve of thigh idiopathic small fiber neuropathy (10/2021)

 

0% right external cutaneous nerve idiopathic small fiber neuropathy (10/2021)

 

20% right anterior crural (femoral) and internal saphenous nerves idiopathic small fiber neuropathy (10/2021)

 

20% left anterior crural nerve (femoral) and internal saphenous nerves idiopathic small fiber neuropathy (10/2021)

 

40% left lower extremity idiopathic small fiber neuropathy involving multiple nerves (10/2021)

 

40% right lower extremity idiopathic small fiber neuropathy involving multiple nerves (10/2021)

 

0% left obturator nerve idiopathic small fiber neuropathy (10/2021)

 

0% Right obturator nerve idiopathic small fiber neuropathy (10/2021)

 

40% right upper extremity idiopathic small fiber neuropathy (involving all radicular groups of nerves) (10/2021)

 

40% chronic fatigue syndrome (10/2021)

 

100% posttraumatic stress disorder (PTSD) with major depressive disorder and somatic symptom disorder (7/2020)

 

40% fibromyalgia (claimed as painful swollen stiff joints in entire body) (7/2020)

 

50% migraine headaches (12/2019)

 

10% costochondritis (also claimed as Tietze's Syndrome and rib pain) (6/2007)

 

Link to the dbq for the C&P exam https://www.benefits.va.gov/compensation/docs/Peripheral_Nerves.pdf

 

Thank you for your help

 

 

[john999]

Go to the exam.  What usually happens if you skip the exam is that your claim is denied. 

[Tbird]

I advise against skipping any c and p exam. I believe it can and will be used as negative inference. Their logic is they need to examine you to confirm the disability has worsened.

[Mr cue]

9 hours ago, Aquaria said:

HLR found duty to assist error and instead of just fixing the date they want me to do another C & P exam

So my ? What was the error that made them have to order new exam for a condition they just granted.

What does the exam have to do with the effective date for smc benefits.

When smc is granted by the record and the effective by the record.

 

[Mr cue]

If you feel they are try to play with your rating why not just withdraw the claim for the effective date.

An wait until your condition are protected.

I wouldn't want them to play with my smc o.

[broncovet]

Tbird and John have given great advice. 

While its true, the VA "does not always comply with their own regulations", YOU can be held accountable if you dont follow them.  (Yea I know, that seems so wrong). 

The VA can not reduce your benefits "based solely" on your application for increase.    Instead, you have to meet the criteria for reduction, which generally means your condition "has actually improved under ordinary conditions of life":

Source: 38 CFR 3.334, link below:

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

 

If you skip the exam, you are subject to the regulation "Failure to Report" for a VA exam.   This regulation applies to new conditions as well as existing claims with a potential reduction based on 38 CFR 3.334, above.  

Source:  

https://www.law.cornell.edu/cfr/text/38/3.655

Its not a Veteran's call to decide if he needs an exam, unfortunately, just like its not our call to award ourselves benefits, or deny them.  Those decisions are made by others.  

No, the VA police are unlikely to show up at your door if you skip an exam.  But, "if you want your benefits", then you have given VA a "perfect excuse" to deny or reduce your benefits because YOU did not report.  Dont shoot yourself in the foot, but if you do, expect it to hurt.  

We need to comply with VA regulations, or expect to deal with the consequences, such as reductions, or denials.  

I have been on hadit since about 2007, and have answered thousands of questions, and read thousands of Veterans issues.  I have also appealed to the BVA, (multiple times) and the CAVC at least 3 times.  Eventually, I won my benefits, and 0 of those were won skipping exams.  

Advising Veterans to "non comply" with regulations, or commit fraud, such as lying to VA, is prohibited by hadit policy.  

We are here to help Veterans..not get them in trouble by skipping exams.  Yea, sometimes "you might" get away with it, but, many many Veterans have been denied or lost benefits due to failure to report. 

As an example:

A search of CAVC claims "failure to report" indicated 699 times when Vets did this and wound up at cavc.  Many more were denied at the BVA/VARO levels for failure to report.  Failure to report is a difficult legal challenge to overcome, another hurdle you will have to try to get past.  

Source:  

http://search.uscourts.cavc.gov/search/

Edited November 11, 2022 by broncovet

[broncovet]

If you think you have been scheduled for an exam which is not needed, call and ask why:

As an example Veterans over age 55 are not supposed to be called for a re exam (to reduce) as this explains:

Quote

V19 A reexamination is not necessary if a veteran meets any of these criteria: · Over 55 years old at the time of the examination, except under unusual circumstances or as required by regulation20 15 M21-1 Adjudication Procedures Manual, Part III, Subpart iv, Chapter 3, Section B, Topic 2,

  Permanent disability and not likely to improve ·

Disability without substantial improvement over five years ·

Claims folders contained updated medical evidence sufficient to continue the current disability evaluation without additional examination ·

Overall combined evaluation of multiple disabilities would not change, regardless of the outcome of reexamining the particular condition ·

Disability evaluation of 10 percent or less · Disability evaluation at the minimum level for the condition

Source:  https://www.va.gov/oig/pubs/VAOIG-17-04966-201.pdf

At least one hadit member called and her exam was cancelled when the error was pointed out.  

Edited November 11, 2022 by broncovet