USCAVC decides that VA can deny a claim for failure to appear at an exam, whether or not VA sent a notice of exam to the veteran.

by Larry Scott, VA Watchdog dot Org

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This decision by the U.S. Court of Appeals for Veterans' Claims (USCAVC or CAVC) just astounds me.

Basically the decision states that VA can deny a claim for failure to appear at an exam, whether or not VA sent a notice of exam to the veteran ... and, VA does not have to keep a copy of the notice in their files to prove they did it, it is just assumed (presumption of regularity) they sent the veteran a notice of exam.

This is just another example of the "blame the veteran" mentality we find at the VA ... and now at the CAVC.

What does this mean for veterans?  An attorney who practices veterans' law provided the following commentary:

After reading this decision, the issue that I am trying to get my head around (without success so far) is how can a constitutional right be determined by a presumption that the government did not violate that right? This vet's constitutional right to a fair adjudication of his benefit claim was denied because VA has "procedures" and VA must have sent an examination appointment notice. Sure, it happens most of the time. Not even VA claims it happens correctly every time. The IRS cannot garnish your wages by going to court and arguing that they must have sent you a garnishment warning. Cops cannot get a search warrant because someone must have probable cause. A mortgage company cannot foreclose on your house because they must have sent you a foreclosure notice. In each case, the right in question requires proof that the action contrary to the individual's protected right actually occurred. But the "veteran friendly" VA can deny your claim IF THEY ACTUALLY DO NOT DO WHAT IS REQUIRED.

The logic that because VA does not keep a copy of the medical exam schedule notices it benefits and the claimant suffers from the "presumption of regularity." The logic of the analysis escapes me. Instead of giving VA the benefit of the doubt because it does not keep the correct records, why not require VA to keep a copy of each document THAT HAS THE POTENTIAL TO DETERMINE A CONSTITUTIONAL ISSUE. The usual excuses that it is an administrative burden, too much paper, etc. (waaahh "its too hard"), do not and cannot outweigh a claimant's constitutional rights. (At least it does no where else that I am aware.) But what can we expect from an organization that does not even require a claim file index.

Finally, this is not the same as a vet not sending something in by certified mail: a veteran who is not mailed something cannot possibly protect the rights lost because it was not sent.

Backlog, what backlog? A few hours on the computer and every VARO can legally deny every claim involving a medical examination simply by asserting that the claimant did not show up for something, somewhere, sometime. This case has the potential to take a relatively rare occurrence (unexcused missed appointments) and turn it into a huge source of denied claims. Don't think so? Anybody want to bet against "missed" appointments increasing in the next quarter??? (well assuming we could get true unvarnished data from VA). Anybody??? Anybody at all??

 

The entire decision is available for viewing or download here ...

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