If you didn’t get your notice of a CP Exam from VA Regional Office handling your claim, you are not the only one.

I talk to half a dozen Vets in this situation every week – and there are more contacting my Firm with this problem that I don’t get to talk to.

However, the VA says that it has a regular procedure for sending out these Notices of CP Exam from VA offices to the Veterans.

They claim their process is SO  regular, in fact, that if you miss an exam your claim can be denied.

The Presumption of Regularity and the Missed Notice of a CP Exam from VA

Remember I told you about these things in the law called Presumptions – particularly the Presumption of Regularity?

 That’s the presumption that says that if the VA has a standard way of doing things the law is going to presume that they used that standard procedure unless you can prove they did not.

In reality, this presumption cuts against the Veterans just about every single time.

The VA, for example, says that they have a regular way of filing documents in a C-File (we all know that they do not, and have proof that they do not).

But the Courts buy it and presume that if the VA says that everything you sent in gets filed in your C-File.

Even when it puts it in someone else’s file.

Well, at the tail end of 2013, the Presumption of Regularity took a little hit from the Veterans Court.

Here’s how it went down. 

The Veteran missed a compensation and pension exam– in this particular case, the Veteran said that he never got a notice from the VA that he had an exam.

Sound familiar?

Happens all the time.  The worst part is – as in this case –  the Veteran’s claim can be denied for missing a C&P exam.

So the Veteran appealed.  The Board of Veterans Appeals did not address the Veteran’s argument that he never got the notice, and the BVA continued the denial of the appeal.

The Veteran appealed to the CAVC, which remanded to the Board to make findings as to whether the Veteran received adequate notice of the VA comp and pen exam …since missing an appointment would be essentially a “death penalty sanction”  against the Veteran’s claim.

4 Lessons Learned About Challenging “Missed Exam” Denials.

 

Lesson #1: Read your BVA Decision carefully.

In this case, the BVA said that the Veteran was  “…notified in a 2010 letter that he would be scheduled for a VA examination and failure to report could result in a denial of his claim.”

There is a difference between “notice that you will get scheduled for an exam” and “getting notice that you are scheduled for an exam”.

Where the Board – or the VA – is relying on a document that says you might someday in the future get an exam notice to say that you actually got an exam notice, there’s a bit of a problem.

Lesson #2: Make the VA prove its “regular procedure”.

If the VA denies your claim on the grounds that you missed an exam, and you didn’t miss the exam, you should argue to the BVA that the VA failed to send you exam notice (A notice of disagreement – not a reconsideration letter – starts the BVA appeal process).

You should also consider asserting that the VA does not have a regular procedure for notifying Veterans of C&P exams.

By doing so, you make it clear to the BVA –  a good BVA judge will read your C-File before the hearing – that you are challenging any application of the Presumption of Regularity.

Lesson #3: There is – as of yet – no known regular procedure through which the VA notices Veterans of C&P Exams.

We’ve known this for a while. The Veterans Court observed, in Kyhn v. Shinseki, 24 Vet. App. 228, 234 (2011):

The VA “…does not have written instructions regarding the procedures it follows to notify a claimant of a scheduled examination.”

The VA’s procedure exists – they say – but its not in writing.  My theory is that if the sanction for missing an exam is the denial of a Veteran’s claim, the VA should have a written process for notifying Veterans of these exams.

It’s not rocket science here, folks.  The VA has been sending Vets out for exams for 70+ years. They should be able to write the process down and follow it.

Lesson #4: The frustration at the  Veterans Court seems to be rising.

I can’t tell if it’s pressure from the Federal Circuit, or if they are just getting frustrated with the Secretary’s game-playing in Court filings.

Either way, I am seeing more and more decisions where the Veterans Court is expressing some very basic logic concerns to VA attorneys.

Like this one:

“The Secretary fails to recognize the distinction between evidence and argument. Evidence is defined as records, documents, testimony, etc., that are offered in proof of an alleged fact. . . . An argument, on the other hand, is defined as ‘an effort to establish a belief by a course of reasoning.’ ”  

Regardless of the source of the frustration at the Veteran’s Court, we should keep appealing to it.

Get Read your BVA appeal decision carefully, and if it gets it wrong, appeal to the CAVC.  

Stay tuned to the Veterans Law Blog, and I’ll let you know if the CAVC weighs in again on this issue.