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Failure Of C&P Examiner

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63Charlie

Question

In the middle of a C&P exam for scars, the examiner didn't take any measurements.

He sent a woman in after he left, to take photos of my scars.

 

I asked this person," Why didn't the examiner measure my scars?", as this was necessary to get a fair decision/rating.

She left and in a short time the examiner returned.

 

I asked him the same question.

He measured one scar on the back of my neck and none of the others.

I even specifically pointed out the ones I wanted him to measure.

He said that the rating officer will see the scars from my photos and that is mostly how they make their decision.

 

That isn't the rules on scar evaluation.

 

This guy was a P.A.

 

It was a bad omen when one of the first questions the examiner asked was," What is your current disability rating?"

That made me feel like he was going to do all he could to make sure I would never reach 70% disability.

 

At the end of the exam he stated he was a veteran too.

 

When his assistant returned once again to take the photos, she began to tell me how my examiner was a really good guy and was serving in the Reserves currently.

Took all I could do to bite my tongue and hold back and tell her how he did a hatchet job on my claims.

 

Finally.... forgot to mention..he checked my ankles range of motion without using a goniometer, or any form of test instrument.

Then he proceeded to inform me that I needed to get a medical diagnosis of my ankle condition.

I told him that I have an orthopedic appointment scheduled for my ankles the following week.

 

MY QUESTION IS: Will I have to wait and NOD/appeal the bad exam AFTER a decision has been made? Or is there an alternative such as writing a complaint and/or request a new exam before I get a rating?

Edited by 63Charlie
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Every pathology document on the blue button is tainted with ALL incriminating statements sprinkled throughout (never in my case is it a positive deviation.) It is going to take a good weekend documenting and revising (at least one iteration) for every(!) pathology study document on-line. I don't know how I would do it without Blue Button though (so it could definitely be worse.)

I want every one of my responses on Blue Button for historical evidence. If I can figure out how to use the 3rd party system, they don't make mistakes, but everything is interpreted by a VA rep any way. It's a lifetime of work editing your c-files, and then people will reference the incorrect pages, not looking at the revisions. The c-file should be set up with fields of a relational database (including dated revisions) where all that information is automatic: no automation needed, an excel ss could do it really. No matter how many billions of dollars they throw at the system, you can't automate stupidity.

I guess I can ask to edit and remove the original document after the edit. It gets a little overwhelming with all these documents, so I need an excel db on revisions starting this weekend on my first revision. Maybe I can give some of my spreadsheets to the Honorable Bob McDonald for a half billion dollars for streamlining his 22 billion dollar project. Programmers will be taking $1000 coffee breaks!

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Dumb question.  Say you get two great IME/IMO's from separate qualified doctors done on a condition, then the VA schedules a contracted C&P.  The C&P examiner shoots you in the foot.

When everything shakes out, does the rater (or are they supposed to) consider the greater probative value of two IME/IMO's from two separate docs over the C&P examiner with the sniper rifle and all things consider, rule in favor of the veteran?

Just a question.  Thanks!

Mark

 

Edited by MarkInTexas
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"When everything shakes out, does the rater (or are they supposed to) consider the greater probative value of two IME/IMO's from two separate docs over the C&P examiner with the sniper rifle and all things consider, rule in favor of the veteran?"

If the IMO/IMEs were corrrectly prepared ( as explained in our IMO forum)and the IMO/IME docs had expertise in the field of the disability and could give a strong medical rationale, supported by treatises or abstracts that bolster their opinion, then in compliance with 38 CFR 4.6, the raters should weigh the evidence, and if  they find the evidence is equally for and equally against the claim, they should award under Relative Equipoise (Benefit of Doubt).

This will not work however for any PTSD claims filed after July 13, 2010.The PTSD DX MUST come from the VA.

And an IMO/IME cannot establish an inservice nexus,unless they directly refer to the veteran's SMRs.

There is much to issues like what you are concerned about.

Va owns the BOD scale. I have said here many times I think they kick Blind Justice in the knee, in order to weigh the evidence in their favor.

But faulty C & P can certainly be overcome with strong IMOs.

I did a topic here available under search called Read First if Getting an IMO.

I had 2 IMos from Dr Bash that covered all the bases a strong IMO must have, and I developed the topic from those IMOs.

I also had a third brief IMO from a former VA Neuro. VA had 2 against the claim from an Endocrinologist and obtained a third VA opinion. ( I had 3 for,... they wanted 3 against.)

I knocked down the third opinion myself, stating it was too speculative and not what the BVA remand called for. BVA agreed.

I won under Relative Equipoise. ( AO DMii death claim)

There was significant probative evidence in addition to my IM0s, as well.I wish the BVA had listed it all in their decisions as it could have helped some other claimants.

 The sole reason this case went to the BVA is that my RO refused to read the IM0 (even at a double DRO review my former rep said he gave it (the first one)to her himself to get into the record....never happened... and anything other evidence I sent and refused (also with the Help of my former POA :wacko:) to send me a valid and legal VCAA letter.

VA tried to pull this same BS on me with my last claim.About a year ago. I made them CUE themselves because they violated 38 CFR 4.6 They did that very fast.( after a small battle)

I never thought to do that for my DMII AO death claim (and I should have whipped out 38 CFR 4.6).

38 CFR 4.1 et all is one of the best regulations we have.38 CFR 4.6 is my favorite part if it and violations of this reg has probably caused THOUSANDS of claims to be denied at the RO level over the years.

 

But an IMO/IME cannot perform a miracle and neither can vet attorneys.

It is evidence that makes claims succeed.

 

 

 

Edited by Berta
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Great answer, Berta!  Thanks!  That one is definitely a post that everybody should Like to be able to refer to when needed.  Thanks again!

Mark

 

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  • HadIt.com Elder

I'll add this and I can only imagine this apply s to the C&P Examiners too! matter of fact I add this in on all my claims I have submitted.. When.the raters /examiners read this  it helps them read your claim better & they realize their dealing  with a veteran that reads the CFR's

I'm not sure it will all claims? but I just think the raters & examiners needs to be ''reminded'' of this 4.23

§4.23   Attitude of rating officers.

It is to be remembered that the majority of applicants are disabled persons who are seeking benefits of law to which they believe themselves entitled. In the exercise of his or her functions, rating officers must not allow their personal feelings to intrude; an antagonistic, critical, or even abusive attitude on the part of a claimant should not in any instance influence the officers in the handling of the case. Fairness and courtesy must at all times be shown to applicants by all employees whose duties bring them in contact, directly or indirectly, with the Department's claimants.

[41 FR 11292, Mar. 18, 1976] 

 

Edited by Buck52
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Falsification of medical records is a felony.  The law expects a higher level of competence from the medical specialists who represent themselves as qualified to conduct a C&P examination.  Certainly, the VA does not accept every person trained in any medical field to be a specialists, you must meet specific guidelines, and have specific knowledge of the examination process to perform the exam.  If the C&P for states that you must measure the ROM using a specific tool, then you must do so, or note that you did not.  If you say you used it, and didnt, that is falsification of a medical record.  

Same thing goes if the examiner states that he/she reviewed your record, and they fail to note specific information that details facts about a condition that you have, and the examiner goes on to deny that the condition even existed. Making the statement that he/she reviewed a medical record means that the examiner must take into account the entire record when considering what to enter into the C&P examination report (which is a medical record).  For example, I had 9 exams by MD's who were PCP's and Specialists/surgeons, and reports by Neurology and Radiology experts that I not only had Spinal Stenosis, but that the peripheral nerves to my legs were affected, and that the left leg had been substantially affected for years. The C&P report didn't even acknowledge that either one of my legs had any problem.  They sent me to a 2nd exam after I pointed out that the 9 exams from far more qualified experts existed, and the second examiner did the same thing.  (They must have been trained by the same guy?)  In the end, a Sr Claims Processor indicated that both of these examiners failed to do their jobs.  I am waiting for my complaint to be acted on by the IG, what these 2 examiners did was a crime and the IG is supposed to deal with federal employee's and contractors who do this sort of thing.  No word yet.

 

In the end, your best bet in your own claim is to shell out a few bucks and get an IMO on your condition.  Most MD's will help you out, but dont expect them to lie for you. If its in your current medical record, and in your Active Duty medical record then it should be fairly basic for them to assess if the two conditions are related, and if there is any question about it, what percentage of probability that relation would be based on his/her professional experience. That is what you need to win a claim 90% of the time.

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