Earlier Effective date, waiting to be assigned to judge

[Stayfocus]

659 days in direct review lane for EED.

Waiting to be assigned to a judge.

Anyone else in same situation?

Edited March 18, 2023 by brokensoldier244th
moved from another topic/question

[Rattler]

You might find this interesting.

- I submitted DBQs that are adequate for rating my claim. M21-1 V.ii.i.A.3.j allows that "A statement from any physician can be accepted for rating purposes without further examination if it is otherwise sufficient for rating purposes" and has a proper diagnosis. This policy derives from 38 CFR 3.326 which makes a similar declaration. Further, my DBQs meet the definition of "competent medical evidence" (38 CFR 3.159(a) (1)). If my DBQs are insufficient in any way, then VA must contact me or my private physician
for correction (38 Use 5101). It is improper to send a private DBQ to a e&P examiner for clarification when they did not write it in the first place. Such action could only be construed as an effort to "develop to deny" by VA.

- Congress has declared its support for Veterans using private medical evidence to support their VA claims because it "properly protects veterans" (38 USe 5101). Consideration should be given to the DBQs I have submitted with my claim. They are sufficient for rating purposes, and they make C&Ps unnecessary.

- VA cannot "develop to deny" a claim. Since I have already submitted a complete package of private evidence, any further development with C&Ps would violate 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)).
 

 

[Stayfocus]

14 hours ago, Rattler said:

You might find this interesting.

- I submitted DBQs that are adequate for rating my claim. M21-1 V.ii.i.A.3.j allows that "A statement from any physician can be accepted for rating purposes without further examination if it is otherwise sufficient for rating purposes" and has a proper diagnosis. This policy derives from 38 CFR 3.326 which makes a similar declaration. Further, my DBQs meet the definition of "competent medical evidence" (38 CFR 3.159(a) (1)). If my DBQs are insufficient in any way, then VA must contact me or my private physician
for correction (38 Use 5101). It is improper to send a private DBQ to a e&P examiner for clarification when they did not write it in the first place. Such action could only be construed as an effort to "develop to deny" by VA.

- Congress has declared its support for Veterans using private medical evidence to support their VA claims because it "properly protects veterans" (38 USe 5101). Consideration should be given to the DBQs I have submitted with my claim. They are sufficient for rating purposes, and they make C&Ps unnecessary.

- VA cannot "develop to deny" a claim. Since I have already submitted a complete package of private evidence, any further development with C&Ps would violate 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)).
 

 

That’s awesome…! Thank you, that’s really good information.