Discussion on Exam Adequacy
The BVA accepted the veteran’s testimony that the first exam was not accurate and ordered a second exam. The second exam that was acquired therefore replaced the results of the first exam, which is no longer for use because the BVA found it to be inadequate. So the second exam goes retroactively to the original state claim, and that’s why…
Bill: Oh, I understand. Therefore, they wouldn’t have ordered the second test had not the first test been protested.
Dr. Bash: Another way of saying it is if the BVA was satisfied with the adequacy of the first exam, there would have been no need to order a second one.
Bill: That’s correct, unless there are exceptions to that rule. For example, if the veteran comes in and says his hearing got worse after his last exam. In that circumstance, there would be a later effective date associated with that, again based on the facts found.
Dr. Bash: What was the difference between the first exam and the second exam?
Bill: In each case, I would review those examinations and decide whether the first one was adequate or not. If it was inadequate, that means I can’t use it, so the second exam is the first time the VA got a proper exam, and that applies to the whole claim period.
Dr. Bash: That’s an important point because when I review the records, I often see that the examiner, the audiologist, or other parts of the record will say that the patient wasn’t cooperative, and the exam is not quality. Those exams should be nullified and then redone.
Bill: If it’s nullified and has to be redone, then by all means, you have to give that veteran the benefit of the doubt. You have to take it all the way back in many cases.
Dr. Bash: How many years were there between the first exam and the second one in your example?
Bill: It would be about five years. That would be about average because it takes about five years for the BVA to make a decision. The cases I got on remand typically were 5 to 12 years old.
Claims Based on 3.156(c) for Appeals
Dr. Bash: How much experience do you have dealing with claims that are filed based on 3.156(c) for appeals?
Bill: It comes up occasionally.
Dr. Bash: Hey, Dr. Bash, I don’t know what that means. Can you guys explain that?
Bill: Sure. The regulations governing the reopening of claims impose a requirement for new and material evidence. Once you lose the claim, it’s lost forever, and if you file it over again, you must submit or point to new and material evidence to reopen that claim. The effective date would generally be when you filed the request to reopen that claim. There are two exceptions: the regulation found at 3.156(b) and 3.156(c).
Dr. Bash: What’s the difference between those sections?
Bill: If new material evidence is presented or the attempt to reopen is done before the decision becomes final (within a year or before a BVA decision on it), you preserve the effective date associated with the prior claim. If you miss that one year or get a denial by BVA, you start over from the date of the reopened claim. The second exception, at 3.156(c), applies to cases where the claim is reopened and granted based on additional military records. If those military records existed at the time of the old claim but were not acquired, lost, or misplaced, the claim goes back to the original date because it’s predicated on those military records.
Dr. Bash: That makes sense.
Importance of Medical Evidence
Dr. Bash: This whole thing about development is really important. Bill was talking about how the Raiders are not developing much, and the doctors aren’t developing too much either. If they’re not developing anywhere in the system to try and streamline it, we really have to make sure we do the best development we can on the front side.
Bill: Very much so. It’s extremely difficult for the VA to catch up with the claims. You have to crank fast to try to get these cases addressed. If there’s something you can do to relieve the VA of the burden and the time it takes to find your evidence and you take and give it to them, that’ll expedite your outcome.
Dr. Bash: That makes sense.
Bill: On average, the appeals management center was granting about 25% of the remands and taking about a year and a half to do it. Cases I represented were resolved typically within six months, and 50% were granted. I did not rely on the VA to get the evidence. I would obtain the evidence that the BVA was interested in, develop and obtain any other necessary evidence, and submit it along with the evidence that the BVA was seeking.
Dr. Bash: That’s a great approach.