Is This Categorical Dismissal Of Lay Evidence

[mos1833]

below is what i think is a true injustic

this claim is back at the court again after being denied using this as evidence against my claim, i keep asking my self (can they do this)

from what i know and read about lay evidence, this is just wrong,the medical opinions never considered the lay evidence either.

what do you think ?

The mere contentions of the Veteran, no matter how well-meaning, without supporting medical evidence that would etiologically relate his current complaints with an event or incurrence while in service, are not of sufficient probative value to rebut the February 2002, January 2009, and July 2010 medical opinions. Caluza v. Brown, 7 Vet. App. 498 (1995); Lathan v. Brown, 7 Vet. App. 359 (1995); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1994); King v. Brown, 5 Vet. App. 19 (1993). In this case, there is no evidence that the Veteran, his family, or friend have any medical expertise, or are otherwise qualified to render a medical opinion. Consequently, his statements and the statements of his family and a friend, without some form of objective medical corroboration, are not deemed to be of significant probative value.

[Hoppy]

mos 1833,

are not of sufficient probative value to rebut the February 2002, January 2009, and July 2010 medical opinions. Caluza v. Brown,

They weighed the lay statements against the doctors reports and gave greater weight to the medical reports. This is not a categorical dismissal. Without a summary of the lay statements and the medical reports you are not posting enough information for anybody to really understand what was at issue in your claim. Do you have a docket # ?

I wrote a letter last year as to observable symptoms of a veterans condition over a three year period that was cited by a DRO as "credible lay evidence". The veterans claim was raised from 50% to 70% without any new medical exams. In the same letter, I also contested a previous C&P exam from a forensic psychiatrist. The C&P examiner blamed the veterans more severe symptoms on a personality disorder. I noted the protocol from the DSM IV for making a diagnosis of personality disorder which was ignored by the C&P examer and attacked the C&P on lack of examination and the fact that the veteran had at least five prior exams by qualified treating specialists which all included proper reporting of symptoms and not one of the treating specialists gave the veteran a diagnosis of a personality disorder. The C&P examiners report was not given weight. Lay statements and arguments rebuting medical evidence made by an advocate can be given weigh if properly written.

Page 688 of the DSM IV TR states “The clinician must be cautious in diagnosing Personality disorders during an episode of a mood disorder or an anxiety disorder because these conditions may have cross-sectional symptom features that mimic personality traits and may make it more difficult to evaluate retrospectively the individuals long term patters of functioning”.

Edited March 27, 2012 by Hoppy

[Pete53]

The key to winning is to give your lay evidence and get a written medical opinion that will support your lay evidence with the Doc's opinion and a medical diagnosis linked to now and your service.

Get a Medical Opinion

[Berta]

I agree with Pete and Hoppy.

Does this involve the congential transitional vertebra claim you mentioned in the past here?

If so, could the lay statements,in any way, bolster the IMO you have,if you approach the same doctor you mentioned in that post again?

It seems to me that a C & P examiner would have to resort to speculation ,just as the IMO you mentioned, did.

As Hoppy said:

“Lay statements and arguments rebuting medical evidence made by an advocate can be given weigh if properly written. “

I personally know this is true.

However, a strong IMO from an expert in the field can cut through a lot of VA BS.

All the IMO doctor has to do is state” at least as likely as not” with a medical rationale.

Which to me could be reworded by the doctor in the IMO you already have-as you stated:

“but the best iml i can get is IT MAY BE related, and thats not good enough “

Did VA knock this IMO down already? I am not even sure if this is the same issue you are attempting to gain SC for.

Was there any “superimposed disease or

injury during military service that resulted in increased

disability.” VAOPGCPREC 82- 90 (July 18, 1990), 55 Fed. Reg.

45711 [a reissue of General Counsel opinion 01-85 (March 5,

1985)].

Do you have any Buddy statements to that affect?

An IMO, particularily if the vet is paying money for one,needs to conform to the IMO criteria here at hadit and use the wording the VA is familiar with.

Many docs ,willing to prepare an IMO, but if they never did one before for the VA,do not understand exactly what type of IMO a vet needs for VA purposes or the lingo it should contain.It pays to spell out carefully in a cover letter attached to the medical records, what the claim is for and what you are trying to prove to the VA.

[Hoppy]

I came back to this thread to clarify that I am of the opinion that it is better to bolster the medical evidence than to rely entirely on an arguement that the VA did not properly apply the law. You can bolster medical evidence and argue that the previous decision did not comply with the law at the same time with the expectation that one or the other will win the claim.

In a situation like this I have the IMO doctor read all the medical reports including the reports the VA is using as evidence against the claim and shoot holes in those reports. If you cannot get a new IMO the least you can do is argue any issues raised in the previous medical reports used as evidence against the claim that are not supported by research or clinical findings and are theoritical and speculative.

Edited March 27, 2012 by Hoppy

[mos1833]

thanks again all

berta YES this is the same claim---95-42 640 at the board.

its now at the court again ---11-2847

i have a lawyer working my case.

i got ssa useing va medical records,which included the only imo i have.

the ssa used his opinion as controlling.

the va said it was speculation.

like i said before,i do have 5 lay witness statements.

i get confused trying to explain things,so if iam not clear about something please bare with me.

the last c&p exam was a joke,she was rude and didnt care what i had to say.

they sent my claim to her for an opinion on any inconsistencys so she just revuied the other (head hunters reports) AND GAVE THE OPINION BELOW.

I THINK THIS WAS PURE speculation on her part,and made a slander opinion toward me and my doctor.

The examiner indicated that the only inconsistency in the above-cited statements was in the undated statement that the inservice back trauma may have contributed to or accelerated advancement of degenerative joint disease of the lumbar spine, which she stated was an ambiguous statement at best made by a provider who it appeared may have had a personal professional relationship with the Veteran

[Berta]

“which she stated was an ambiguous statement at best made by a provider who it appeared may have had a personal professional relationship with the Veteran “

Cripes- anyone of us with VA or non VA health care has,hopefully, this type of relationship with their provider.

But it seems she is trying to knock down a SSA medical statement.

The VA statement is very argumentative -however, the SSA opinion doesn't seem to help the VA claim.

“i got ssa useing va medical records,which included the only imo i have.

the ssa used his opinion as controlling.

the va said it was speculation.”

If you cant get an IMO that conforms to the VA IMO criteria,your lawyer can argue that this VA examiner's opinion is as speculative as the opinion they disregarded.

I wonder what the examiner would have said if this had been a costly IMO.

Probably the same thing. Or worse.

Is this a SSA doctor's statement or a private doc's statement?

Do you have a copy of exactly what the SSA opinion says?

Do you have copy o the actual VA examner's opinion?

As I mentioned here before, the VA raters can parse and manipulate medical opinions, even from their own doctors.

That doesnt happen often but if a vet doesnt have copies of the actual opinions, they remain in the dark as to what the opinion really said.

If the SOC fails to state even one point of possible contention in the VA opinion, the VA has prevented the vet from a possible point of appeal.

That happened to me years ago and I am still angry about it.It wasnt the VA doctor's fault. He was not given the prime evidence to opine on.VA pulled this on VACO too and luckily I took the bull by the horns and got that fixed.

Dr. Bash and I are working on something that might change the way VA handles VA and QTC medical opinions.

I await responses to my letters to VHA and the VBA on that. This eventual change wont happen overnight and I know it will take more of my time to pursue this -but it is important.

We ,as claimants, need to have full Due Process and that only comes with having the exact same information that VA has,regarding C & P exams, as it is the C & P exam that controls most of the decisions they make on our claims.

Often only strong IMOs can overcome VA medical BS in a rating decision-as long as the medical evidence warrants it.

I dont think that is fair but that is the reality of the VA these days.

Edited March 28, 2012 by Berta