CP exams not received

[KC3]

Please bear with me. I feel I need to elaborate. During my HLR in December of 2018(my representative did not involve me) the DRO ordered up new exams due to DTA error for migraines and GERD. I did not hear anything and after 3 inquiries with the 1000 peg line I finally heard about the lost claims in May of 2019 via phone message and received a denial 3 weeks later without the ordered exams. My representative told me that this would not help me at my BVA hearing I had in late March; however, I brought it to the VLJ attention when asked if there was anything else and VLJ was very enthusiastic about this.

Should I include the paperwork that the DRO ordered up exams in my new evidence?
did VA fail me by not administering the exams?

Perhaps I’m confused as to why my rep said not to bring this up. 
 

On a positive note I found the doctor who treated me within a year of discharge and DX with migraines and he wrote a letter on the 20-10210 VA form stating he treated me since he’s now retired. VLJ said to do this since the records are destroyed after 10 years at that facility. 

[KC3]

3 minutes ago, KC3 said:

VLJ said to do this

VLJ informed me of avenues to pursue not an order to do something. My apologies folks. 

[broncovet]

I like your way of handling it much more than your VSO.  Yea, if there were c and p exams ordered, but not completed due to no fault of your own, this is highly significant.  

It even smells like a CUE, if c and p exams were ordered, but not completed, then that is clear error.  (Of course this would not apply if exams were ordered and you failed to show up for exams.). I would be interested, as a judge would also be, the reason why c and p exams were not completed.  

Again, if you failed to show, well that is your fault.  More than once, however, c and p exams have been ordered but the Veteran never received any kind of notice to attend exam.   Its your responsibility to maintain a "good" address and phone with VA.  If you moved and did not change your address, its hard to fault VA for not knowing your address.  

I would actually need to read your file to give more specific advice, but I would see these possible options:

1.  File a CUE if VA failed to schedule the applicable c and p exams.  

2. Submit a supplement claim with new, relevant evidence one exams are completed.  (HLR is when you have NO new evidence).  See 38 CFR 3.156.  

3,  File an appeal to the BVA citing your aforementioned position.  If the c and p exams are still not completed, then ask for them when you appeal.  

 

[KC3]

I never received notice from the VA nor any of its sub contractors for exams. 
the BVA is in the know. I would have been there in a heartbeat for these 
looking back hindsight I would now do option 2 with the knowledge I’ve gained over the past several years. 

[broncovet]

Many times Veterans have been denied for not attending an exam, and there are at least 2 possible reasons:

1.  The VA incorrectly notified, or did not notify the Veteran at all of the exam.  

2.  The Veteran did not update his/her address promptly so the VA did not have the correct address.  

     It can be the Veterans own fault. (No, Im not saying it is your fault, I have not read your file, and have no idea). Even if it were your fault, you should fix it, and file a supplemental claim.  

 

However, you should file a supplemental claim, and, its a good idea to mention that did not receive notice of c and p exams, if, indeed, that is the case.  Just ask for another exam.  The HLR is for new evidence, so dont use the HLR.  

If your new supplemental claim is again denied, then you likely will need to appeal it, but the problem could well be fixed somewhat promptly, and a new exam ordered.  Do make sure your address is correct with VA.  There are 2 parts to VA:

VAhealth (VA medical)

VA benefits.  

    And, at least one employee says these are seperate and dont talk to each other, at least not very well, and your address could have been changed with VA benefits, but not VA medical or vice versa.  Be sure and check so that the error is not repeated.  

Edited May 30, 2023 by broncovet

[KC3]

On 5/30/2023 at 6:46 AM, broncovet said:

you should file a supplemental claim

I am already in the BVA hearing lane and will be submitting my additional evidence this week and the HLR history from my C file will be submitted even if it means duplicating it. 

I wish I would have done the supplemental lane. Might have saved a 3 year wait. I was advised wrong on several occasions by my representative(s) which in the end I accept full responsibility since I ultimately took the advice.