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We just had a meeting over this today, and among other things veteran anxiety was brought up several times, as was how to define ‘sustained improvement’, usually in the context of cancers and other malignancies. That is still being addressed, but the short of this is that there is a National push for creating fewer RFE’s, due mainly to statistical analysis that shows they are often unnecessary. I get one, I look at it, I document or obtain all the current medical from the last action on a condition, then send it to an RVSR that then looks it over to determine if an exam is truly warranted, etc etc. The dates for these things are set like 90% by computer based on previous regulations and estimations of medical conditions that are gotten from I have no idea where. No, really, im not kidding. I don’t know what went into programming the dates for all the various conditions into the system for assigning RFE dates.
It takes up a lot of time for me (us, VSRs) and Rvsrs to evaluate these only to have them not even be needed, meanwhile you have gotten a letter about it and are stewing and worrying about it. Well, this says that we (VA) are changing the policy effective date of this letter (7 OCT) forward. RFEs scheduled prior to are being weeded out and evaluated like normal.
All VBA Regional Offices and Centers Policy Letter 21-01
Subject: Updated Guidance on Routine Future Examination Requests
This letter provides instruction to regional office claims processors regarding scheduling of routine future examinations (RFEs). Based on a data-driven analysis of outcomes of RFEs over a three-year period, RFEs will not be established or required absent an exception outlined in this policy letter.
Generally, reexaminations will be required if it is likely that a disability has improved, or if evidence indicates there has been a material change in a disability or that the current rating may be incorrect. This principle and other requirements for RFEs is contained in 38 CFR § 3.327. An Office of Inspector General (OIG) report, released July 17, 2018, indicated that further guidance may be needed in this area to ensure consistency in policies pertaining to reexaminations, including more clear direction as to when they are necessary. This OIG report estimated that approximately 37% of RFE requests from March to August 2017 were unnecessary or should not have been requested based on the regulations.
Analysis and Conclusion
Compensation Service analyzed data on all Veterans who had an RFE conducted in fiscal years 2018, 2019, and 2020. The analysis revealed that the majority (77%) of conditions reviewed were confirmed and continued. Only about 10% of conditions were reduced, and the remaining 13% of conditions were increased.
Furthermore, the data revealed that mental disorder conditions accounted for approximately 40% of all conditions reviewed by RFEs without a VA examination being required under the VA Schedule for Rating Disabilities (VASRD). While accounting for a large volume of RFEs, only 5% of mental disorder conditions were reduced. The majority (75%) were confirmed and continued, and the remaining 20% were increased.
These trends indicate that RFEs are being requested in circumstances other than when they are required. Unnecessary RFEs are not a demonstration of good stewardship of resources entrusted to VA. Apart from the time and costs to the agency of conducting unnecessary RFEs, there is impact to efficiency and timeliness of claims processing as VA examinations are often an important piece of evidence in claims for original service connection, claims for increase and for new conditions. Equally as important, there are costs to Veterans, including their time to travel and attend. Some Veterans have reported anxiety and fears when receiving RFE notifications. RFEs can involve invasive medical examinations or cause Veterans to re-experience traumatic events associated with their mental health. Therefore, VA must improve consistency and focus on the intended purpose of RFEs.
The policy guidance in this letter applies to all regional office claims and appeals processing personnel within the Veterans Service Centers and Decision Review Operations Centers.
Effective immediately, routine future examinations shall only be requested when
- Mandated by a provision found in 38 CFR Part 4 (e.g., 38 CFR §§ 4.28, 4.128, 4.129, and in evaluation criteria found in diagnostics codes like 7528 Malignant neoplasms of the genitourinary system), or
- Necessary to reduce an evaluation in accordance with 38 CFR § 3.344.
Duty to Assist
This policy letter does not alter VA’s duty to assist, including the provisions for providing medical examinations or obtaining medical opinions when necessary to decide a claim. See 38 CFR § 3.159(c)(4) and 38 USC 5103A(d). Additionally, VA will continue to accept, without further examination, any hospital report or any examination report from any government or private institution, provided that it is otherwise adequate for rating purposes. See 38 CFR § 3.326.
Failure to Report for Examination
This letter also does not alter the provisions, found in 38 CFR § 3.655(c), concerning reexamining a claimant after failing to report for an examination. If an examination has been ordered to assess continuing entitlement when there is a running award and the claimant fails to report but indicates willingness to report for reexamination before payment has been discontinued or reduced, a reexamination shall be rescheduled.
- Single Judge Application; Spellers v. Wilkie; the Court held in Spellers v. Wilkie, with respect to the diagnostic code for incomplete paralysis of the sciatic nerve, which also rates the condition based solely on the level of severity (i.e., mild, moderate, severe), the “lack of objective criteria for differentiating between the specified severity levels means that any evidence indicating severity of incomplete paralysis of the sciatic nerve is necessarily relevant to the schedular rating level.” 30 Vet.App. 211, 219 (2018) (emphasis omitted);
- Single Judge Application; tinnitus; Murphy v. Wilkie, 983 F.3d 1313, 1318 (Fed. Cir. 2020) (endorsing Clemons and explaining that “VA shall afford lenity to a veteran’s filings; evidence developed in processing that claim; claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim; The Board did not, however, address the reasonably raised issue of whether the veteran’s specific claim for tinnitus encompassed a claim for a vestibular condition manifesting in dizziness, as required by Clemons. In Clemons, the Court explained that, because lay claimants generally lack the medical knowledge to narrow the universe of a claim to a particular diagnosis, VA “should construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim.” 23 Vet.App. at 5. “[T]he claimant’s intent in filing a claim is paramount to construing its breadth,” and factors relevant to that inquiry include “the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim.” Id. The Court ultimately held that the Board may not deny a claim because a lay claimant’s hypothesized diagnosis proves incorrect; rather, the Board must “confront the difficult questions of what current condition actually exist[s] and whether it was incurred in or aggravated by service.” Id. at 6. In so doing, the Board must make “affirmative finding[s] as to the nature of the [claimant’s] condition.” Id. In short, “the fact that the [claimant] may be wrong about the nature of his [or her] condition does not relieve the Secretary of his duty to properly adjudicate the claim.” Id.; see generally Murphy v. Wilkie, 983 F.3d 1313, 1318 (Fed. Cir. 2020) (endorsing Clemons and explaining that “VA shall afford lenity to a veteran’s filings that fail to enumerate precisely the disabilities included within the bounds of a claim,” which “is best accomplished by looking to the veteran’s reasonable expectations in filing the claim and the evidence developed in processing that claim”).;
- Single Judge Application; the ultimate “lesson of our cases is that, while a pro se claimant’s ‘claim must identify the benefit sought,’ the identification need not be explicit in the claim-stating documents, but can also be found indirectly through examination of evidence to which those documents themselves point when sympathetically read.” Shea v. Wilkie, 926 F.3d 1362, 1368–69 (Fed. Cir. 2019). Here, the claim-stating documents pointed, when sympathetically viewed, to a history of symptoms of abdominal pain that yielded a diagnosis of gastritis. And that’s not all. The veteran’s gastritis was expressly linked to service by VA’s own medical examiner—in the context of an examination sought by the Agency as part of the development of Mr. Martinelli’s other claims.; The Secretary says the veteran is out of his depth in suggesting to the Court that melatonin use indicates sleep issues. But even if that were true, the veteran retorts, the Secretary forgets the Court’s ability to take judicial notice of facts generally known. See Tagupa v. McDonald, 27 Vet.App. 95, 100-01 (2014). Indeed, one need look no further than a basic medical dictionary to conclude that his in-service prescription was favorable, material evidence. Melatonin is “a hormone . . . implicated in the regulation of sleep, mood, puberty, and ovarian cycles. It has been tried therapeutically for a number of conditions, including insomnia and jet lag.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1110 (33d ed. 2020). The Board has a responsibility to explain why it rejects favorable, material evidence. Garner v. Tran, 33 Vet.App. 241, 250 (2021).;
- Tinnitus may occur following a single exposure to high-intensity impulse noise, long-term exposure to repetitive impulses, long-term exposure to continuous noise, or exposure to a combination of impulses and continuous noise (Loeb and Smith, 1967; Chermak and Dengerink, 1987; Metternich and Brusis, 1999; Temmel et al., 1999; Stankiewicz et al., 2000; Mrena et al., 2002).”
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We just had a meeting over this today, and among other things veteran anxiety was brought up several times, as was how to define 'sustained improvement', usually in the context of cancers and other malignancies. That is still being addressed, but the short of this is that there is a National push...