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.

[mos1833]

berta, thanks so much

the doctor that gave my opinion is a va doctor.

i eaw him for more than two years.

when i filed this claim he was all i could afford,free

the va awarded me a pension,useing his opinion ,so did ssa.

hes the head of his department.

hadits the best. thanks

[Hoppy]

I am not sure of the specifics. However, it sounds like you are trying too link a back injury that was witnessed by the folks who provided buddy letters to a current diagnosis of a back condition. The witness's can attest to the nature of the accident. Once the accident is established by the witnesses then you need a strong IMO from a doctor who has reviewed the witness statements and links the prior injury to the current condition. Hopefully the claim is not clouded by other non service related back issues.

A VA attorney who has experience as an ambulance chaser in personal injury suits should have a significant file of studies linking injuries to long term and delayed degradation of back injuries. One solid study will shoot down the opinion of the examiners calling a relationship speculative. The problem is that the VA treating doctor does not know that they need to back up there opinion by with research or at least provide a cirriculum vitae showing they can base there opinion on clinical experience. The best way to deal with this situation is to get a lawyer who understands the necessity of referencing research or works with a high power doctor who has a long history of specializing in treating and longitudinal following up of patients with a prior history of back injuries.

As of now it appears that you are caught up in a battle with doctors who are not denying the claim by denying the validity of the witness statements as they relate to the current diagnosis rather they are denying the claim by playing dumb and taking pot shots at the report written by the VA treating doctor..

[mos1833]

thanks hoppy

you are so right. ived been stuck in the middle from day one.

i cant belive all the different ways they can delay the process.

[Berta]

In the Veteran's Law Update , this case has been posted under the recent Federal Circuit Court decisions.

“Sickels v. Shinseki, 643 F.3d 1362 (2011) (Sickels holds that a claimant must challenge the qualifications of a VA examiner at the Agency level if he wishes to argue the same before the Veterans Court. Absent an objection at the Agency level, the Federal Circuit reasoned, the VA is entitled to rely upon the presumption of regularity of its VA examiners).

1. 
   Note: Sickels requires claimant representatives to be attentive to VA examinations performed by non-medical doctors, or even by physicians who are not specialists in an area requiring a specialty. For example, if a VA claimant undergoes a psychiatric examination, the report should reflect that the examiner is a psychiatrist or psychologist. If not, the representative should submit a written request to the VA for the examiner’s curriculum vitae or for some other documentation reflecting the examiner’s education, experience and training in mental health care.”
   

http://www.veteranslaw.com/content/law-update

This part bears repeating here:

“If not, the representative should submit a written request to the VA for the examiner’s curriculum vitae or for some other documentation reflecting the examiner’s education, experience and training in mental health care.”

YES! And they should cite Sickels but I have not had time to fully understand these 2 important decision-and will post a topic on them as soon as I can.

I think every VA examiner should provide a CV along with their opinions.

After all, IMO doctors are more then willing to do that.

For one of my past claims I was trying to prove my dead husband had DMII from Vietnam but he had never been diagnosed with it.I claimed it had contributed to his death.

Long story -I proved it. And I laid out my lay opinion and medical evidence to Dr. Bash the first time I ever contacted him.

But my point here is that VA got an Endocrinologist to go against the claim.You would think an Endocrinologist would have the best expertise of all to opine on a diabetes claim.

I ran her through healthgrades only to find she had a limited CV which didnt really focus on diabetes and endocrine disorders. I knocked the opinion down and then asked Dr. Bash to prepare an additional opinion (they neglected to even consider his initial opinion)because Dr. Bash, unlike this VA endocrinologist, had a full background in interpreting MRIs and X rays of diabetic veterans ( he said he had interpreted "thousands of them" in the IMO that revealed the type of brain damage my husband had , that untreated and undiagnosed DMII can cause and heprepared his second opinion on the MRI and other evidence in the veteran's med recs.

My point is YES, challenge the credentials of these VA C & P doctors.

If you cant get a CV out of them,then for a few bucks they might have a healthgrades rundown you can use.

As I said on last night's SVR show with Mike Harris-these C & P doctors are the ones who control our claims, much more than the raters do.

If they prepare an improper C & P exam report,and give a faulty exam, and are not qualified to even opine on the claimed disability- it can harm the veteran and the vet's family for years ,in attaining their rightful benefits.

Hoppy is right!

[Berta]

I need to clarify what I meant by raising Sickels V Shinseki-

this is a detailed legalize decision but it makes sense and this is the point:

"Mr. Sickels failed to raise his concern regarding the medical examiners' ability to understand the AMC instructions before the Board and we conclude that his failure to do so relieves the Board of its burden to address the issue."

In that respect however, I believe Sickels reinterates the fact that a claimant or their reresentative has the right, ASAP,to challenge a C & P examiner's opinion by challenging their credentials as well as the way the exam was performed.

I am still re-reading the Fed Circuit opinion but here it is in part:

SICKELS v. SHINSEKI

643 F.3d 1362 (2011)

United States Court of Appeals, Federal Circuit.

Decided May 6, 2011.

In part:

“The Government argues that this appeal is a challenge to the Veterans Court's application of section 7104(d)(1) to the facts of this case and thus outside of this Court's jurisdiction. The Government would limit the question presented on appeal to whether the Board erred in this case by failing to articulate reasons and bases for finding Mr. Sickels' VA medical opinions to be adequate. However, such a narrow reading of Mr. Sickels' argument is incorrect and unfair. The Board is statutorily compelled by section 7104(d)(1) to articulate reasons and bases to provide for judicial review of its findings and conclusions. Mr. Sickels argues on appeal that the Board may not implicitly find a VA medical opinion to be adequate, but rather must always explicitly explain why each medical opinion is adequate in order to satisfy its statutory duty under section 7104(d)(1). Mr. Sickels thus raises a legal question within our jurisdiction.”

and in part:

“Mr. Sickels' argument is similar to the challenge raised in Rizzo v. Shinseki, 580 F.3d 1288 (Fed.Cir.2009). In Rizzo, the appellant argued that the VA must affirmatively establish the competence of a medical examiner before the Board can rely upon the medical examiner's report. We rejected this argument and found that "this court perceives no statutory or other requirement that VA must present affirmative evidence of a physician's qualifications in every case as a precondition for the Board's reliance upon that physician's opinion." Id. at 1291. Thus, when a veteran suspects a fault with the medical examiner's qualifications, it is incumbent upon the veteran to raise the issue before the Board. Id. ("Indeed, where as here, the veteran does not challenge a VA medical expert's competence or qualifications before the Board, this court holds that VA need not affirmatively establish that expert's competency."). We concluded that

"the Veterans Court did not err in not requiring the Board to affirmatively establish [a medical doctor's] competency." Id. At 1292.

We made clear in Rizzo that the VA and Board are not required to affirmatively establish competency of a medical examiner unless the issue is raised by the veteran. Id. at 1291-92. While we did not explicitly state so in Rizzo, it should be clear from our logic that the Board is similarly not mandated by section 7104(d) to give reasons and bases for concluding that a medical examiner is competent unless the issue is raised by the veteran. To hold otherwise would fault the Board for failing to explain its reasoning on unraised issues.”

"Mr. Sickels failed to raise his concern regarding the medical examiners' ability to understand the AMC instructions before the Board and we conclude that his failure to do so relieves the Board of its burden to address the issue. As we stated in Rizzo, "[t]he presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties." 580 F.3d at 1292 (quoting Miley v. Principi, 366 F.3d 1343, 1347 (Fed.Cir.2004)). The doctrine "allows courts to presume that what appears regular is regular, the burden shifting to the attacker to show the contrary." Id. (quoting Butler v. Principi, 244 F.3d 1337, 1340 (Fed.Cir.2001)). The VA medical examiners were provided with instructions granting authority to perform additional examinations and diagnostic testing if necessary. The Veterans Court did not err by not requiring the Board to state reasons and bases demonstrating why the medical examiners' reports were competent and sufficiently informed.

AFFIRMED."

Basically this is a VA case law tenet that, what you do not appeal or challenge in any way, -once the VA says it on paper , means you have accepted what they said in an SOC or any document.

That is why those SOCs have to be often challenged line by line.

I have scanned VA decisions (my CUE claim is good example) and then ,in Office.org, after every quote from the SOC, (usually evey sentence they typed )

I would say WRONG! and then tell them why.

If we dont challenge it, VA fully and correctly assumes that we accept it-whatever their SOC statements involve.

I

[mos1833]

hi all

this is just an update on my claim,and to thank you for all the help.

my claim made it back to judge green ,the same judge that remanded my claim in 2002.

i thought he would be fair again-NOT''' he just resited what the board decided,and never even mentioned my side at all,he denied it and iam still not sure why, any way whats next ? please look at his decesion and tell me what you think, at the court web site just type in nunley mark it the newest decesion what a joke. sorry folks iam upset