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Considering skipping C & P exam


Aquaria

Question

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

 

 

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  • HadIt.com Elder

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

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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.

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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.

 

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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.

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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 by broncovet (see edit history)
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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 by broncovet (see edit history)
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I think the ? Is  the poster apply for effective date.

Why is a exam need for a condition just granted.

They were granted the condition now even a year ago. 

What does this exam have to do with a effective date?

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Withdrawing the claim for earlier effective date would NOT be recommended.  

Yes, an exam could well be necessary for an earlier effective date.  And, you could well be shooting yourself in the foot, refusing the exam, as I explain below. 

Yes, you can refuse the exam..but dont be suprised when your effective date appeal is denied for refusing the exam.  

Effective date appeals for SMC are based "on when you first" met the criteria, not on the date you applied.  That is,  your effective date for SMC is the date the doctor said your symptoms first began.  

Here is a common example of why you could get an earlier effective date based on an exam. 

1.  You go to the doc, for a previous exam.  The doc gives you a favorable exam "but does not give a date yours symptoms first began.  

2.  You are awarded benefits, but the effective date is the exam date, "even tho" your symptoms began much earlier.   The VA based the effective date on the information available, and since the doc did not give a date symptoms began, VA often uses the date of the exam.  Your symptoms however, did not begin on your exam date.  This suggests the doctors exam caused your symptoms.  Instead you already had these symptoms previously, that is why you were called in for an exam. 

3.  You go to a new exam, and explain you had symptoms "much earlier" than your exam date.  Most of us dont get an appointment with the doc "the first day our symptoms began", but instead we were sick for "some time" before. 

4.  A new exam could document you had symptoms well before your exam date, thus you could get an earlier effective date. 

5    Refusing this exam, out of "fear of reduction" would be counter productive.  

After all, when you are applying (or appealing) for an earlier date for SMC, you need medical evidence to support your symptoms began before (the previous exam).  

We have been down this road in the past, so please dont recommend Veterans skip exams, its not a good idea unless you have a compelling reason such as you are over 55, and, you need to contact VA in this case, and let them cancel the exam.  Dont try to take the law into your own hands, we are not the judge jury and executioner, leave that job to those who do that.  

 

Edited by broncovet (see edit history)
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2 hours ago, Mr cue said:

I think the ? Is  the poster apply for effective date.

Why is a exam need for a condition just granted.

They were granted the condition now even a year ago. 

What does this exam have to do with a effective date?

I believe the HLR came back as DTA error on the part of the VA. So, without knowing what the exact duty to assist error was, we can only speculate. The exam could have been ordered because the HLR reviewer found an issue with the previous exam or opinion? Ive had that happen a couple times. I ended up doing 2-3 exams over the span of a few years because of DTA errors. Not saying its right, but it happens. Especially when going down HLR route it seems as it opens the entire claim to the HLR reviewer, not just what you are trying to point out. Does seem like they catch a lot of DTA errors this way.  

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Everyone have there beliefs on how to fight unnecessary comp exam.

Some say trust the VA. Do nothing 

Other call it developing to deny and fight it.

It's really up to the veteran how they handle there issue with it.

I am from the fight school.

 

Edited by Mr cue (see edit history)
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15 hours ago, Aquaria said:

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)

You are one of the very few I have seen with these claims all granted.  Usually they use PTSD to cancel out one or the other regarding CFS or Fibro.  Super rare to have all three granted.  It's usually a rater error.  Hopefully they don't catch it in the C&P (which I suggest going too).

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Hadit forums is NOT FIGHT Club.  If you want to watch that, help yourself.  Its to help and encourage Veterans, and give the best advice we know how.  

If you want to change the regulations, then feel free, with my blessings, to run for congress and change VA laws.  

But, for now, people get a much better result complying with, rather than fighting, regulations.  The one on refusing exams is clear, so I will post it again:

Quote
 3.655 Failure to report for Department of Veterans Affairs examination.

(a) General. When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. For purposes of this section, the terms examination and reexamination include periods of hospital observation when required by VA.

(b) Original or supplemental claim, or claim for increase. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a supplemental claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied.

(c) Running award.

(1) When a claimant fails to report for a reexamination and the issue is continuing entitlement, VA shall issue a pretermination notice advising the payee that payment for the disability or disabilities for which the reexamination was scheduled will be discontinued or, if a minimum evaluation is established in part 4 of this title or there is an evaluation protected under § 3.951(b) of this part, reduced to the lower evaluation. Such notice shall also include the prospective date of discontinuance or reduction, the reason therefor and a statement of the claimant's procedural and appellate rights.

The claimant shall be allowed 60 days to indicate his or her willingness to report for a reexamination or to present evidence that payment for the disability or disabilities for which the reexamination was scheduled should not be discontinued or reduced.

(2) If there is no response within 60 days, or if the evidence submitted does not establish continued entitlement, payment for such disability or disabilities shall be discontinued or reduced as of the date indicated in the pretermination notice or the date of last payment, whichever is later.

(3) If notice is received that the claimant is willing to report for a reexamination before payment has been discontinued or reduced, action to adjust payment shall be deferred. The reexamination shall be rescheduled and the claimant notified that failure to report for the rescheduled examination shall be cause for immediate discontinuance or reduction of payment. When a claimant fails to report for such rescheduled examination, payment shall be reduced or discontinued as of the date of last payment and shall not be further adjusted until a VA examination has been conducted and the report reviewed.

(4) If within 30 days of a pretermination notice issued under paragraph (c)(1) of this section the claimant requests a hearing, action to adjust payment shall be deferred as set forth in § 3.105(i)(1) of this part. If a hearing is requested more than 30 days after such pretermination notice but before the proposed date of discontinuance or reduction, a hearing shall be scheduled, but payment shall nevertheless be discontinued or reduced as of the date proposed in the pretermination notice or date of last payment, whichever is later, unless information is presented which warrants a different determination. When the claimant has also expressed willingness to report for an examination, however, the provisions of paragraph (c)(3) of this section shall apply.

(Authority: 38 U.S.C. 501)

It is hadit's policy to not recommend Veterans violate laws, including VA regulations, to win benefits.  

This includes the regulation above.  

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Not about to do this with you again.

Did I say refuse a exam. Pls stop with the bashing.

That is your opinion on how you would handle thing .

Others have away they handle things.

But you need to stop with all the threats.

I never say refuse a exam and I don't think the poster did either.

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Here is the oig report on the VA an exams.

I don't no way I just couldn't post the report but there it is

 
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If you are having problems with the VA ordering unnecessary

Rate this question


Asked by Mr cue,
October 5

Question

Title: VBA Could Improve the Accuracy and Completeness of Medical Opinion Requests for Veterans’ Disability Benefits Claims
Report Number: 22-00404-207 Download
Report
Issue Date: 9/7/2022
City/State:  
VA Office: Veterans Benefits Administration (VBA)
Report Author: Office of Audits and Evaluations
Report Type: Review
Release Type: Unrestricted
Summary:

For veterans seeking disability compensation benefits, the Veterans Benefits Administration (VBA) requires a disability exam to determine the severity of a disability or a medical opinion on whether a current condition can be connected to military service. VBA has committed an estimated total of $6.8 billion in contracts to complete disability examinations and medical opinions over a five-year period starting in 2016. Because medical opinion requests can be vital to ensuring veterans receive the benefits to which they are entitled, the VA Office of Inspector General (OIG) examined whether VBA staff correctly followed procedures when requesting medical opinions.

The review team found that VBA can reduce inadequate medical opinions, incorrect or delayed claims decisions, and wasted resources by improving internal controls, personnel training, and monitoring of medical opinion requests. The team estimated that 27,900 of 41,100 requests (68 percent) did not follow required procedures during the review period (October 1, 2020–September 30, 2021). Claims processors did not consistently identify relevant medical evidence for the examiner’s review, did not always use clear and accurate language, did not regularly request all warranted medical opinions, and sometimes requested unnecessary medical opinions. These failings can lead to inaccurate medical opinions, incorrect decisions on veterans’ claims, delayed decisions for veterans, and inefficient use of resources (such as when the medical opinion requires rework).

VBA concurred with OIG-identified deficiencies and recommendations to (1) implement electronic system enhancements to require claims processors to identify relevant evidence before a medical opinion request can be submitted, (2) enhance mandated training for all claims processors and demonstrate progress in achieving its intended impact, and (3) strengthen monitoring by refining quality review processes to help identify areas for improvement and show advancements in complying with required procedures

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Lol this is a very bad subject for the ppl of hadit about comp exams.

Pls stop saying I am telling veterans to refuse skip what ever you choose to call it.

I will tell a veteran they can fight against unnecessary comp exam.

The oig report show the problem 69% is a lot of comp exam that are order that aren't right.

Now to tell veterans there is nothing they can do about seem off to me.

Because you can

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You laugh about this, but this can cause veterans to lose their benefits by not showing up.

You can fight whatever you want too as that is your right and anyone who wants to fight it.

I do agree there are a ton of unnecessary exams.

There is always something you can do.

The advice given is to go to the exam as to not fall into the pitfall of losing the benefits.  Will this happen?  I have myself lost benefits because I did not show up.

It caused a lot of headaches I am now paying for.  

There are other ways to fight a C&P exam other than skipping it.

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Just now, shrekthetank1 said:

You laugh about this, but this can cause veterans to lose their benefits by not showing up.

You can fight whatever you want too as that is your right and anyone who wants to fight it.

I do agree there are a ton of unnecessary exams.

There is always something you can do.

The advice given is to go to the exam as to not fall into the pitfall of losing the benefits.  Will this happen?  I have myself lost benefits because I did not show up.

It caused a lot of headaches I am now paying for.  

There are other ways to fight a C&P exam other than skipping it.

This. Call it what you will, a fight, skipping, dipping out, not going, whatever label is slapped on NOT ATTENDING an exam will be seen by the VA as a refusal. I fight the legitimacy of an exam once I have attended it. Attend, then fight/question the legitimacy of it for the sake of the claim..

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Have ppl ever heard of developing to deny.

That how you fight it before hand.

This is how I would handle it.

First I would write a statement tell the VA that they are developing to denied or reduce my rating because I didn't request a increase.

I requested effective date

. I would explain that I was just granted the disability and rating a year ago an there is no way it improve. 

What does a effective date appeal have to do with reevaluating my just granted disability. I believe this is relation for appealing for my proper effective date 

Upload and certified mail.  I do this because you will never get a copy of the exam before they make the bogus decision base on it.

To fight the exam. So you will be appealing before you see the exam if ever. That they use.

Now I would go to the exam in the poster case because they may try to reduce as it is less than a year the rating was granted. There is no protection 

Now if they try to reduce or anything funny after the exam .

You have a statement In The record before the decision. Which will get it remand by the court.

If they didn't address the statement.

The retaliation thing I just found out how to use. Lol

I would upload the oig report with it.

That is call fighting 

 

Edited by Mr cue (see edit history)
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21 minutes ago, Mr cue said:

Have ppl ever heard of developing to deny.

That how you fight it before hand.

This is how I would handle it.

First I would write a statement tell the VA that they are developing to denied or reduce my rating because I didn't request a increase.

I requested effective date

. I would explain that I was just granted the disability and rating a year ago an there is no way it improve. 

What does a effective date appeal have to do with reevaluating my just granted disability. I believe this is relation for appealing for my proper effective date 

Upload and certified mail.  I do this because you will never get a copy of the exam before they make the bogus decision base on it.

To fight the exam. So you will be appealing before you see the exam if ever. That they use.

Now I would go to the exam in the poster case because they may try to reduce as it is less than a year the rating was granted. There is no protection 

Now if they try to reduce or anything funny after the exam .

You have a statement In The record before the decision. Which will get it remand by the court.

If they didn't address the statement.

The retaliation thing I just found out how to use. Lol

I would upload the oig report with it.

That is call fighting 

 

And that sounds reasonable in some cases. But with this OP having taken the HLR route, it opened the claim up to errors, etc that could make a new exam required. And as you stated, you would attend that. So we are all at least now on the same page. I dont believe anyone is saying to NOT fight a unnecessary exam, we are just trying to be sure no one interprets our discussions on this as “skipping” or “refusing” an exam.

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