BVA appeal decision

[EPB]

I finally after 6 years received a decision by BVA dc. It was sent to Portland for execution.  I was awarded TDIU for my 70%ptsd, denied for 100%ptsd, and remanded for lumbar strain. 

Now Portland wants to do a C&P for ptsd. 

The BVA said I should see the change to my rating and pay within 1 to 2 months. 

I'm at a lost why Portland regional wants a C&P. It seemed a closed deal. It's been almost 4 months now and no ratings change. 

Anyone got some help or something?? 

 

[Dot09]

Rattler

Well as of now I’ve been rated 100 %. Schedular p/t. But from 2009 to 2013 I was 90 percent tdiu. After I received my award I seen that they put me in for an exam. After that they gave me the p/t award. It wasn’t until 2022 that I was awarded the schedular of 100 percent p/t. My migraines and sleep apnea and increase to 70 percent put me there. My last claim is for SMC s with a cue back dated to 2014. My lawyer believes it to be very credible. Because they failed to send my imo and dbq to the rater. It was documented as evidence.

[Rattler]

I have posted this in another part of the forum but the info probably needs to be posted hear. 

DBO Election, Duty to Assist Waiver, and C&P Decline Notice for 526EZ and 0995.

- I ELECT TO USE PRIVATE DBQs IN LIEU OF REPORTING FOR C&P EXAMS.
- I WAIVE ANY PART OF VA's "DUTY TO ASSIST'? (38 USC 5103A(d)) RESULTING IN C&Ps.
- I DECLINE TO REPORT FOR ANY C&P EXAMS.
- I WAIVE TELEPHONE CONFIRMATION OF THIS ELECTION.

- I request compliance with M21-1 1V.i.2.C.I.d: "If the examination facility cancels a pending examination
request based on a Veteran's election to submit a privately prepared disability benefits questionnaire (DBQ)
in lieu of reporting for a clinical appointment, then follow guidance as it appears in [W.i.2.C.1.0.

- This DBQ election is not a "refusal" to attend C&Ps nor does it trigger the denial provisions of 38 CFR 3.655 and M21-1 IV.i.2.G which are based on 'failing to report." M21-1 IV.i.2.C.1.d restricts VA's definition of "failure to report" to an actual "No Show" for a C&P appointment. I am not a "No Show" and I am not
"refusing to attend" or "failing to report." I am merely exercising my choice under VA policy to use private
DBQs instead of C&P exams to provide the medical information for my claim.

- Federal statute requires VA to weigh private DBQs equally with C&Ps (38 USC 5101 as amended by Pub. L 116 315, title II, 2006(d), Jan. 5, 2021, 134 Stat. 4976). This equal status is now expressed most explicitly by the policy regarding increased rating claims: "Do not routinely request an examination if a disability benefits questionnaire, completed by a private or VA physician, was submitted" (M21-1 IV.i.1.B.1.g). However, this same principle applies to all types of claims.

- I submitted DBQs that are adequate for rating my claim. M21-1 V.ii.1A.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 makes a similar declaration. Further, my DBQs meet the definition of "competent medical evidence" CFR 3,159(a) OD. If my DBQs are insufficient in any way, then VA must contact me or my private for correction (38 USC 5101). It is improper to send a private DBQ to a C&P examiner for clarification they did not write it in the first place. Such action could only be construed as an effort to "develop by VA.

- Congress has declared its support for Veterans using private medical evidence to support their VA claims because it "properly protects veterans" (38 USC 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 Vii..3.B.1.a). This prohibition was emphasized in a law review article published by the BVA: "additional evidence should not be procured for the sole purpose of denying the veteran's claim" (1 Veterans L Rev. 94 (2009)). Even CAVC 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 Frincipi, 17 Vet. App. 312 (2003)).

- VA cannot arbitrarily minimize or deny benefits. Rather, the official policy is to "award benefits where
supported under the facts and law or when the evidence is in relative equipoise or balance while denying
only when we must under the facts and law that require it" (M21-1 V.ii.i.A.6.b). 1 request application of this policy to my claim and the private medical evidence I have submitted. According to the facts and the law, claim can be decided without C&Ps. I request that VA simply proceed with a decision on my claim based on the evidence already in its possession.

You may need to edit this for your claim.





 

[Dustoff1970]

All due respect the VARO raters have for decades deliberately violated 38 CFR regulations, 38 U.S.C. laws, court decisions and even their own M21-1 manual provisions in denying vets disability claims and then  saying it was just an honest error when overruled by the BVA and/or U.S. courts.  They ignore and disregard good solid medical evidence for the vets all the time.

Since there is no real accountability for government bureaucrats disregarding rules and laws then this chit will go on forever and very often requiring a lengthy BVA appeal timeline for vets to win their unjustly denied claims by VARO.

[Dot09]

Dustoff 

I wish they had more accountability too. I think when the VARO rater signs on on something and something is afoul they should be reprimanded in some way. All too often there is no accountability and like you said oops that was an accident. I’m curious to know the number of denial thus far for 2023. 

[Vync]

17 hours ago, Dot09 said:

Dustoff 

I wish they had more accountability too. I think when the VARO rater signs on on something and something is afoul they should be reprimanded in some way. All too often there is no accountability and like you said oops that was an accident. I’m curious to know the number of denial thus far for 2023. 

I would recommend corrective training in lieu of a reprimand every time something goes wrong. It tends to take years to get some claims solved correctly. By that time, things change or the employee might not remember anything.

About 70% of my claims required some form of error which took months or even years to get corrected. I am helping with an active claim for a very close family member, but again see the same mistakes being made to them which were made to me 25 years ago. They are simply not taking the time to carefully read the claims evidence and compare that to the laws/regs. VA management is trying to push agents to complete claims while the law simultaneously requires thoroughness. Speed gets numerical results, but simultaneously sacrifices accuracy. Prior to the AMA being enabled, between 2010 and 2019 I did see positive progress because QA would call me to verify they got everything right, which was a very good thing. So many things were fixed at that phase. AMA ditched that process which results in errors making it through and entering the supplemental, HLR, and BVA lanes.

 

[Dot09]

You see there lies the problem. With the pressure of upper management to get the claims processed. I understand that a rater can’t read 1000-4000 pages. But I personally sent it the exact documents pointing to what I was claiming. At that point it is just frustrating that they didn’t take the time to read it. Proper accountability and worry less about completion rates would be less denials. Therefore the wait time at the BVA would be more reasonable.

Edited October 18, 2023 by Dot09