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    • Hello everyone, I have been on this forum from time to time, and I must admit usually when I was feeling hopeless about the process, or angry.  Hopefully I am not putting this post in the wrong place also.  Unfortunately, it's been a long time since I got on the forum, and totally forgot my login and password.  I got a new one, and here I am.  I wanted to post to give other veterans fighting this difficult process some hope.  I started in June 2008 to get rated, after my second neck fusion surgery.  The surgery went bad, and left me with permanent nerve damage down my left arm and hand, and permanent pain and fatigue in my neck and shoulders.  It got so debilitating that I ended up having to retire on disability from a great civil service career as a GS15, doing what I loved.  My problem was that I chose not to take the VA exam when I was retiring from the Army, because I felt like I was in better shape when I retired than when I enlisted.  If I could offer any advice to those active duty Service Members who are getting ready to retire, go to that VA exam.  Do not ignore it, as I did.  So I was initially rated at 40% back in 2008 and received an increase to 60% in 2009.  Eventually with the help of an Independent Medical Opinion, I was able to get to 90%, which was reduced to 70% for no reason or medical change, and then raised again on a DRO appeal back to 90%.  All the while my spine was beginning to show the wear and tear of having jumped out of airplanes.  While the pain in my neck and arm was diagnosed as CRPS by a Navy pain management doctor, and substantiated by an army doctor I was assigned to after the first one PCSed.  I must point out here that I am very lucky, because I live in the Metro Washington DC and I was enrolled into the Military Health system, and in a local Army off-site clinic feeding into Ft. Belvoir and Walter Reed hospitals, so all the while I was getting good health care.  As I mentioned, I had to retire on disability from the civil service much too quickly, it was in part because the CRPS had spread into my left and right extremities. It was so bad that in Sept 2012, that it caused me to fall and crush my right foot and severely sprain my left ankle.  It took me nearly a year to get over the initial surgeries, and after three surgeries I can at least walk.  SO I applied yet again for an increase.  Along the way, my lower back was rated at 20%, and while it was worsening over the arc of my story, I was getting no support from the VA, as I was fighting back in forth with the VA to keep and/or restore the 90%.  This past summer my back had deteriorated to the point that I could barely walk.  I saw the spine surgeon at the Ft. Belvoir Community Hospital last July. Ironically, after I asked my orthopedic surgeon who was still following my aftercare post foot surgery #3, which she performed in January of 2015, to look at my back, because of the pain I was in.  I told her that I had prior x-rays taken where the radiologist report stated that all I had was some age related degenerative disk disease, but that the pain I was experiencing was much more than a little arthritis.   She ordered new x-rays and after reviewing she said that I had a right to be in so much pain.  From her point of view my back was in such bad shape that she wanted to refer me to the spine surgeon.  So I saw him and discussed that x-ray.  In his opinion I had serious instability at 6 levels, and scoliosis (which had been diagnosed while I was still active duty) in the lumbar area, and desiccated disks up and down that segment.  He ordered an MRI and a Myelogram of my lower back and both tests confirmed his concern.  So I had surgery to fuse my back from T12 to L5 last October, which my surgeon characterized as one of the most stressful surgeries for a human body.  It was also obvious that I my back was not normal, and clearly it had all come because of active duty service.  Still I didn't get an increase until I changed my VSO from the American Legion to the Disabled American Vets.  I met my new Service Rep in early December last year, after I received a letter from the VA once again proposing to reduce my rating yet again. By the time I saw the VSO, it was obvious that there were major changes in my lower back, and not only did I not deserve a reduction in my 90% rating, he felt very strongly that I had cause to get bumped up to 100%.  So he submitted for TDIU, because I was still just into my recovery from the back fusion surgery, and that it didn't look to him that I would ever improve; and an increase to 100% post-op recovery.  Luckily the VA finally agreed with something pertaining to my health, without a year's long back and forth battle.  I was asked to come into the Washington VA hospital for another P&C in April of this year.  I also ended up going back for a second exam a few months later.  Both examiners were sympathetic to my plight.  And here I would recommend anyone requiring a P&C exam that if you are sent to a QTC contractor exam (or a different company performing P&C exams) to try and get the exam switched to a government facility, even if it takes a little longer.  Every time I was examined (and I use that word lightly) by QTC, it ended up in either an actual reduction in my disability rating, or a proposed one that I had to fight off.  Finally, in July, I returned home from my second lower back fusion surgery and hospitalization to find that big brown envelop that we're all familiar with.  I had to have this second fusion, because the first one refused to fuse into my sacrum.  So the surgeon had to remove the L4-L5, L5-S1 screws, and re-anchor the L4-L5 screws and extend the rods down to my pelvis, where he had to add 5 inch screws in each side of my pelvis to anchor the entire fusion.  Back to the envelop.  I opened it to find a new rating.  Finally, I was awarded 100% Permanent and Total starting in April, with a 5 months of TDIU during my immediate recovery from the 1st lumbar operation.  So now after fighting for 8 years, I am finally rated at 100%.  In my mind, I should have been awarded that years ago.  Here is where I tell all of you to never give up.  There have been times when opening those envelopes that I was disconsolate and angry, but I never gave up.  I have had assistance in tough times to get my journey on track, and I am so grateful to the DAV for taking my case and following it through to completion.  Pick your VSO carefully.  My first stab at this was with the American Legion.  Initially, I had success with the officer assigned to my case, but once she retired, I received no useful support, and the VSO assigned to me was as a ghost, never returning my calls.  So for years I was left to work my case alone.  It was only after the DAV started helping me did I see any increase.  So this is my story.  I appreciate those who have read it through to the end. TCK  
    • Is there actually a regulation that says the NOD requires "NEW" evidence? Or is it just something the VA made up to make veterans give up early?   Either way, was the OP actually diagnosed with PTSD by a MD?  I didn't see him say that he was.
    • Mike Hunt,
      That is good info, but getting the truth out through the media helps to stir up additional interest from the people. Get them interested and involved could mean a much greater response to the Congressional reps.   Keli,
      This might not be Houston specific, but might be helpful about C&P exams for claims. When a veteran has a C&P exam for a claim where range of motion (ROM) is involved, the C&P examiner is required to use a goinometer (like a protractor) to measure the movement. Like many other veterans, I have had exams where they simply failed to use this device. If you ask the examiner, "Say, aren't you supposed to be using a goinometer?" many examiners might take it as an insult and say "I have been doing this long enough and do not need to use one". They proceed to 'eyeball' it. I actually had a C&P exam here in Birmingham from a neurologist. He refused to use the goinometer, performed the exam with one hand while eating a submarine sandwich in the other. Why is this important? Because a 1 degree difference in the ROM measurement could mean the difference between being evaluated accurately vs. receiving a low-ball rating. Additionally, there are painful motion/functional loss factors, which are equally important. Let's say you can bend all the way (max ROM), but pain kicks in at a certain point (limited ROM). Some examiners will wrongly use the max ROM, but should instead be using the limited ROM. Another instance where the veteran may be given an inaccurate low-ball rating.     In addition, nexus statements are a major source of heartburn for veterans. A nexus statement is required for service connection in most cases, except presumptives. The VA tries to limit these to being performed only be C&P examiners because they claim they require special training and have access to things like the claims file. This means that a veteran might have everything they need to win a SC claim, but are put through VA red tape to get that one critical element. In some situations, this may be best, but it is possible for other VA doctors to do this. For example, if the veteran is already SC for something and it causes secondary disabilities.  
    • My first 2 C&P examiners were very kind & polite & was very happy with the accuracy of my records from them. There are a lot of VA employees that are vets or have family that served. By the way, there were a few times that I've run into grumpy VA workers & then came to find out that they are also Vets with mental issues such as mine.  ...but the VA still has more a-holes per capita than any other hospital I've been to.
    • Good luck Buck! I hope you get good news!





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pete992

Fighting Bad C & P Exams

9 posts in this topic

Before a veteran files his or her claim for disability, it would be best for them to seek treatment that would establish their medical condition and get a diagnosis. Getting IMOs and IMEs can be quite expensive but having current medical treatment could really help.

A veteran should never let the C & P examiner's medical opinion be the only medical opinion in his or her VAMC treatment records. I agree that IMOs and IMEs are worth the cost but if the veteran can get this from their treating doctors then even if the local VARO denies their claim or low ball their claim, the veteran should win his or her claim on appeal.

Always keep in mind that the local VARO will always force claims to go to BVA. It doesn't matter how much evidence a veteran has in his or her file. If the Rater, DRO, and or Supervisor overlooks or ignores the pertinent evidence then the only thing a veteran can do is file an appeal.

Hope this helps

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Thanks Pete, I hope to someday soon be able to comment in-depth on this subject.

Long before my C&P exam for secondary SC of a number of disabling conditions (OSA, lung & heart damage from bilateral DVT/PE, E.D. and a few others) caused either by pain or medications for my SC lumbar spine, I requested referrals, diagnostic tests, etc. that would prove these conditions. I then discussed these conditions with the appropriate doctors/specialists, and the likelihood of them being secondary. I then put together a collection of medical evidence to support my theories of secondary SC, and drafted the opinion (nexus) letters for each.

When I went back to each doctor, I would do the following: bring up the previous conversation, offer them my SMR/STR and private medical records and all of my evidence,, hand them the letter(s) and ask if they agreed and would do so in writing; and made sure to explain the reason I needed such letters, as well as the importance of the phrasing for as likely as not or 50/50, more likely than not , greater than 50% probability, due to, etc.

Here are my results:

Success rate for getting signed opinion letters: 100%.

Number of opinions that cost more than a regular visit: 0

Of these letters, on all but one, the doctor selected the "more likely than not option". I had letters from my regular private PCP for OSA and ED. I had letters from a sleep specialist/lung specialist for OSA and convulsive tic. I had a letter from the pulmonary specialist that treated my DVT/PE. All of these were "more likely". I got one "at least as likely as not", that was from a lung specialist doctor who is also a medical professor at one of the top medical universities in the world.

I have to give credit to fanaticwife and this site, VBN, and VAWatchdog for a number of vital tips including: 1. Do not tell the receptionist or anyone else that you want a doctor's opinion. Nothing good can come of that. They will head you off at the pass. When they ask what is in the folder or notebook or whatever, just say it is some medical info you want to discuss with the doctor, or better yet, stack it in between two sections of a newspaper. If the doctor doesn't want to sign it, he/she should make that decision, not some desk jockey. 2. Feel the doctor out early on in a visit or two BEFORE you spring your opinion letter on him. If he thinks you're out of your mind, try to find what he thinks could be the cause(s) and look for how that information connects with your case. 3. Be really polite. 4. Have the records he/she is signing that they've examined, and have logical, sensible medical evidence from a recognized source or publication. Make sure you have read it and understand it so you can explain it in 100 words or less. 5. Make up your opinion letter with either check blocks beside the different levels of "due to", or better yet, have a copy with each opinion, and find out which one he/she will sign.

All of this is assuming, of course, that any condition you are trying to get service connection for can actually be realistically, possibly, logically connected directly or secondarily to an active duty injury/illness or the meds or consequences of it. Theories won't work, you need evidence, and the opinion letter needs to be supported by facts..

Now, there are some people who can do good research and write a good letter, and there are those who can't. If you can't, GET SOME HELP. Likewise with getting your presentation skills together before you talk to the doctor. The doctor probably isn't going to sign some off-the-wall crap that reflects poorly on his/her professionalism, good judgment, and general intelligence level. If you're trying to connect diabetes to a stubbed toe, it ain't happening. If you're a nervous wreck, or if you simply don't know what you're talking about, you may have a problem getting anything but a polite brush-off.

I've spouted off all of this, and I'm sure it sounded in-depth about 200 words ago, BUT...

I have great opinion/nexus letters from private doctors. I had a lousy C&P by a pathologically dishonest, hateful shrew of a professional VAMC rectal digital diver, a.k.a. N.P. Cratchitt (not her real name, and you wouldn't want me to spell out what words come to mind when I think of her). I'd bet she was a Marine nurse, and the Marines in her unit would rather sandpaper a wildcat's arse in a barroom toilet stall than fall under her evil gaze.

Most of what she "opined" was after the phrase "to state an opinion would require resorting to mere speculation". Funny, mere speculation must be kinda like a mental laxative for her; after she put that phrase down each time, she didn't have any problem speculating a LOT, to the point her mushy speculating seemed to turn into a cesspool of opinion, of which she offered none in my favor, really.

I am waiting with bated breath to see what happens, how much weight is given to her opinions versus those of actual doctors. Supposedly, if the 800 number folks have it right, my stuff finally is out of Development and in the Decision phase now.

Once I've got the results, I will get more detailed in how my evidence weighed against her speculative opinion spewings.

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You gave some really good advise here-this s different than what I posted as to Getting an IMO in the IMO forum but that advise was geared to those who need a paid expert opinion. Maybe all this should also be put into our IMO forum.

Great stuff.THANKS!

“Most of what she "opined" was after the phrase "to state an opinion would require resorting to mere speculation". Funny, mere speculation must be kinda like a mental laxative for her; after she put that phrase down each time, she didn't have any problem speculating a LOT, to the point her mushy speculating seemed to turn into a cesspool of opinion, of which she offered none in my favor, really. “

“Mere speculation” has become a VA mantra in the last few years.The BVA disregards speculative C & P statements. They have no medical weight at all.

In my opinion, these “mere speculation” statements mean the C & P doc didnt read the entire clinical record, or they simply didn't understand the medical aspects of the disability, or lacked the needed expertise in the field of the specific disablity - Or all of that..

I had 3 solid IMOs from real docs at the BVA along with my own medical rationale and I used my past VA matters as proof of my medical background.They threw out a PA's C & P as he said he would have to “resort to speculation” to opine on a claim that was clearly substantiated by all of the Medical evidence and the IMOs.

These statements are geared in C & Ps to pass the buck as they know these statements can either set up a long remand or if the rater buys what the C & P is selling- the rater can use the speculative nature of the opinion to deny the claim and then not properly weigh other medical evidence under the BOD regs.

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Another thing-

if a VA doctor says they would have to resort to "mere speculation" to medically opine in a C & P exam-how the heck do they give their patients proper care?

I personally think some of these C & P opinions reveal negligence or complete lack of medical knowledge.

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Berta,

I find it disturbing that for a exam for PTSD you need to have a psychiatric physician but for IHD the VA can use a Nurse Practitioner. Now I have nothing against NP's but this just seems wrong. They are using the opinion of a NP over surgeons, cardiologist and physicians to make the rating decision.

As I discussed with you in another forum, I put in a claim for IHD, PTSD, IU and other items which I just received a decision on. When putting in the claim, I submitted a lot of medical records from years of treatment from physicians for my particular diseases particularly IHD. Included in those records were reference to SSDI determination for permanent total disability and have been on SSDI since 1990 for IHD.

Now I have a C&P exam for IHD and IU conducted by a Family Nurse Practitioner who at the end of the exam findings uses the phrase "…conditions do not prevent you from securing or maintaining LIGHT duty employment, including sedentary employment".

Without any reference to any of the doctors opinions that I submitted or any of the SSDI files, the rater used that exact phrase for the denial. "The VA examiner indicated that your service connected conditions do no prevent you from securing or maintaining gainful light duty employment, including sedentary employment."

Just starting to work on my plan of attack for either a NOD or CUE and the information about the IMO letters from doctors you and acesup will be very valuable. I'll be meeting with my VSO next week to start my appeal. Thanks for the great information.

Another thing-

if a VA doctor says they would have to resort to "mere speculation" to medically opine in a C & P exam-how the heck do they give their patients proper care?

I personally think some of these C & P opinions reveal negligence or complete lack of medical knowledge.

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Does the VA know you are on SSDI????

Geez-

"have been on SSDI since 1990 for IHD." That evidence might put you into the 100% IHD criteria ,making her TDIU statement there having no probative value.

"They are using the opinion of a NP over surgeons, cardiologist and physicians to make the rating decision." When the H VAC hearings schedule is posted- vets have got to bring this crap to the attention of the H VAC.

Even when the BVA orders a Cardio or Neuro opinion -the vet can end up with a PA.

Nothing wrong with PAs except they dont have MD after their names.

I guess if a vet had a real good IMO from a PA -then the VA would sure find a VA doctor to go against it.

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