VBM–FOREGO THE C&P?


Before I begin, I would like it known that Michigan Bob has given us a new 2011 VBM. As for the title above, I know that looks like a misprint and I was floored to read it myself. Nevertheless, right there on page 928 it says this under 12.5.4.5:

12.5.4.5  The Consequences of Failing to Report for a VA Medical Examination

Corresponding to the VA’s duty to assist the veteran in obtaining information, including to obtain medical nexus opinions, is the veteran’s duty to cooperate with the VA in developing a claim. This duty on the part of the veteran includes reporting to scheduled VA examinations. However, in a few situations, it may be in the veteran’s best interest not to report to a scheduled VA examination. Under 38 C.F.R. § 3.655(b) (2011), [w]hen 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 recordThus, in instances where the veteran is able to procure his or her own positive medical opinion, and that positive medical opinion is included in the record, it may be in the veteran’s strategic best interest to forego the scheduled VA examination and allow the VA to adjudicate the claim based on the evidence of record, including the positive medical examination.

On the other hand, it is never in the veteran’s best interest to fail to report for an examination scheduled in connection with an original claim for a benefit other than disability compensation, a reopened claim for a benefit which was previously denied, or a claim for a rating increase. If a veteran fails to report for a scheduled VA examination relating to any of the above-mentioned classifications of claims, the claim will be denied.223

Section 3.655(b) provides a good cause exception to the rules governing the adjudication of claims when a veteran fails to report to a scheduled VA examination. The regulation identifies several examples of good cause, including the illness or hospitalization of the veteran and the death of an immediate family member. This list is not inclusive; thus, other extenuating circumstances may constitute good cause for failing to report to a scheduled VA examination.

So, let us walk through this new jungle. We are all familiar (or should be) with vA’s legendary C&P doctors. We need not go into that now. Suffice it to say that if you show up with a brilliantly reasoned nexus like mine, don’t be surprised if they send you out for one. If that fails, don’t even pretend shock when they venture off to some VAMC in Winston-Salem for a proctologist to do an IMO. I had all three.
What the authors  of the Veterans Benefits Manual (not to be confused with the pink Peggy Veterans site) are offering is a whole new take on this. If you have a dynamite nexus from Dr. Cecil and all the other Caluza elements, why would you venture into the lion’s den? We all know a C&P is a fishing expedition to find you not service connected if at all possible. vA is also rather fond of rubbing salt in the wound and saying they are forced to rate on the available evidence when you fail to show up. As the authors point out, on a new claim for Hep. with all the evidence in your favor, they are hoist on their own petard. 38 CFR §3.665(b) has no punishment attached to a failure to submit to a C&P on an original claim. Yet…
This can be all the more entertaining if they inadvertently deny based on your no-show. That is CUE. If you noticed the authors of this manual, one that stands out is Meg Bartley. That would be the very same Meg who was just approved by the Senate to the CAVC.  If she advocates this, I can assure you it is cutting edge law that passes muster.
What will be interesting is the response from the vA when this becomes well-known. As with all new ploys, they will invariably move to plug the hole as soon as they discern it. As we have mentioned, the new DBQs are noticeably missing a place to write in a nexus. It’s almost as if they did it on purpose. We can only assume they want to achieve 125-day denials by artfully concealing the DBQ shortcomings and providing damning C&P exams.
Turning the tables on vA is my stock in trade. I love this idea. Apparently Meg Bartley and crew do too.
Gentle readers know we never look at the price tags on gifts but I did look it up and Bob’s generosity was rather shocking. Veterans hereabouts may come to find that his munificence will help them succeed.

About asknod

VA claims blogger
This entry was posted in Veterans Law and tagged , , , , , , , , . Bookmark the permalink.

3 Responses to VBM–FOREGO THE C&P?

  1. joeaveragevet says:

    The Lexus Nexus VBM (VBM) is the weapon the VA does not want us to have! It is all based on case law, written by the most experienced VA law attorneys and is often used as training for lawyers choosing to represent Vets. It does not suprise me that many VSO’s do not have or have never heard of the VBM…the VA does not want to face a Vet in court who has studied the VBM. It is a weapon called “knowledge” and it is the most formidable weapon of all. Some VSO’s confuse the Lexis Nexus VBM with a Dick and Jane version published by the VA which gives general information of use to only the greenest of the green Vets applying for benefits. The only thing the Lexis Nexus VBM has in common with the VA published version of a manual with a similar name is the name. The VA thrives on Veterans confusion so its no wonder they publish a book with a similar name.

  2. Kiedove says:

    Wow! Thank you Bob! ASKNOD will be even more enlightening now. I read about this on a previous post and checked out the product on the Lexis-Nexis website. Then I contacted the local state VSO to see if he had it in his office. He didn’t. Contacted legal and state librarians. Only one the print version could be found in all of MN! Information is power. Public librarians whose patron bases contain large veteran populations should be asked to buy this for their reference departments to use in-house. The print version, which is limited, should be available for check-out.

    • asknod says:

      Member Joe Average Vet contributed one last year to us. The disc can be overwhelming as it doesn’t allow for easy bookmarking to jump back and forth. The book is heavy at 2 lbs. and resembles a 4X 8 beam in dimensions. There’s something to be said for good old analog. Good reading material for the powder room.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.