File the claim; make the appeal

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Posted on: Friday, February 03, 2012

Jim,

A Veteran requestd a reconsideration of a previously denied final claim.

VA scheduled and the Vetaren reported for a C&P examination. The Veteran asked his VSO why the VA did not acknowledge the C&P examination in their decision.

The VSO stated that the C&P examiner, despite acknowledging the diagnosis, did not give an opinion.

Question 1: Is this consiered a reopend claim?

Question 2: Is the VA C&P examination considered supporting medical evidence that should be listed in the evidence section of the decision letter?

Thank you.

Reply:

As you might suspect, any time I see "VSO" I'm automatically suspicious. None of this sounds right to me.

I never recommend "reconsideration" of a claim. When a claim is denied, there are 3 avenues to correct it by appeal.

(1) Reconsideration sends it back to (more or less) the original team that made the flawed decision. That's like taking your car in for a repair and the mechanic repairs the wrong part. Why would you go back to the same person?

(2) The DRO Process takes the claim upstairs to an individual who was not part of the original decision process. This is called a de novo review. The DRO is a senior person who has the authority to support the original decision or to modify it in part or in whole.

(3) The Board of Veterans Appeals is reached by filing a VA Form 9. While this is definitely taking it to a more advanced level, it is also full of built in delays and bumps in the road.

I always recommend that a veteran who is not in agreement with a claim decision proceed to the DRO Process appeal.

See http://www.vawatchdog.org/how-to-appeal.html

A C & P exam is conducted strictly according to specific instructions given by the VARO. If, as this VSO allegedly says, there was no opinion, there may have been an instruction to the examiner that said "Confirm the diagnosis of (abc) condition." The examiner reviewed the record and examined the veteran and then confirmed the diagnosis of the condition as ordered. That is an opinion by any definition.

We can't understand the logic of what was ordered nor the details of the C & P examiner's report without seeing them both. The veteran should routinely wait 4 to 6 weeks after a C & P exam and then formally request a copy of it from the VARO. As always, the request must be in writing, delivered by certified mail, RRR.

VA usually will not include the request for the exam. The veteran must ask that "I request that you include any and all internal VA paperwork that orders and/or instructs the C & P examiner as to a goal for this examination".

VA doesn't like us to see the internal paperwork as it sometimes contains hand written notes that may not be supportive to the attitude of the VARO.

Your veteran has apparently filed a claim that was denied. Then the VSO sought a reconsideration that also seems to have been denied. You know what comes next. It's a perfect time to have an expert attorney review the claim to determine whether or not the claim is well grounded and if it is, whether an appeal to a DRO Process or taking it straight to BVA is warranted.

Any further playing around at the VARO using a VSO is a waste of time.

I answered 2 or 3 emails over the weekend where similar situations were presented. Each time veterans asked something like, "Jim, how or where can I learn if I have a valid claim? I think I do and I've asked a number of people over the last year and each one has a different opinion. How do I know if my claim will be approved?"

Those are very frustrating messages. The only way to know for sure is to file the claim. Asking VSO's or friends about possible outcomes kills time. One of the fellows who wrote to me will probably prevail in his claim but he's vacillated for 18 months seeking opinions. That means he's lost 18 months of compensation. The effective date of the claim is the date it's filed. To wait around is a sure way to lose money.

Like so many things in law, nobody can answer the "Will I win?" question but the adjudication process.

Tell your vet to get serious and get a lawyer.

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