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

 

 

[Mr cue]

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?

[broncovet]

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 November 11, 2022 by broncovet

[Foxhound6]

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.  

[Mr cue]

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 November 11, 2022 by Mr cue

[El Train]

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).

[broncovet]

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.