RO suggested the answer he wanted?

[AgentOrangeWife]

Hello,

My husband's blue button file includes record of an RO requesting a medical addendum opinion. The RO specifically wrote in the request that: "the interview based mets results would result in a lower evaluation".

1. Is this typical wording?

2. Does this seem improper to you?

3. Does it appear that the RO wants a specific answer?

4. I am looking at this in regards to 38 C.F.R. 3.304(c) (2001); see also Mariano v. Principi, 17 Vet.App. 305, 312 (2003) (holding that VA may not order additional development for purpose of obtaining evidence against appellant). What do you think? This might be a stretch but it doesn't seem "proper" that the RO would discuss the effect of the addendum opinion with the VA doctor.

I appreciate all of your opinions!

A/Owife

Edited March 24, 2017 by AgentOrangeWife

[Vync]

That wording sounds unusual, but there could be a reason for it. Please bear in mind that I am not an expert on heart ratings.

In some cases, the RO will indicate a rating is "temporary because you are expected to improve". This often happens in cases where surgery may have been performed and they assume after healing the original problem might have got better. But sometimes there may be other reasons.

I was subject to the "temporary" rating due to an asthma rating increase. They included that statement in my award letter. After so long, they brought me back and reduced my rating. It was in error because they ignored evidence, but I got it reversed on appeal and the DRO did me right.

However, from what I have heard, in order to reduce a rating, there would have to be proof of sustained improvement. Hence, they would not be able to reduce simply based on one instance or one test.

If that note in his records is dated after the dated CFR 3.304(c) and the Mariano decision, then they should apply. But if this happened prior, then you would need to look up the existence of previous versions of CFR 3.304(c) to see if it still said the same thing or you would need to look up similar previous preceding precedent opinions.

 

I'm not sure if this helps, but I hope it does.

 

[AgentOrangeWife]

Vync,

Thanks for the info.

It bothers me that the RO would email a VA doctor and use those words when requesting an addendum opinion. Esp an addendum opinion without an examination when reducing from 100%.

Probably 3.304 doesn't apply but there has to be something somewhere about coaching the doctor who is writing the addendum opinion.....

I appreciate your input.

Edited March 23, 2017 by AgentOrangeWife

[AgentOrangeWife]

Wouldn't you think they would want an in-person exam to establish the "current level of disability"?

I still can't get past the RO emailing a VA doctor and using those exact words when requesting an addendum opinion.

[broncovet]

Agent Orange:

   You are overthinking this.  While I certainly agree that VA does not always act in our best interests, it is POSSIBLE that it indeed happened THIS TIME.  Until you find out better, you need to accept that the VA is asking for "additional information" to get a higher rating, that the C and P exam was inadequate.  

    Indeed, if you think the VA "developed to deny" your claim, that is, asked for more information when it already had enough to give you a good rating, then you can challenge that.  

    But you cant challenge VA in what you think they will do.  Let it play out, and see if you get a bad result, first.  You may be suprised.  

[MikeHunt]

On 3/23/2017 at 11:39 AM, AgentOrangeWife said:

 "the interview based mets results would result in a lower evaluation"

That's a nonsensical fragment, unless I don't recognize 'mets'. I'm also missing the context.

Exams, themselves, are built in a program that has little room for variation. If someone does need to go back for an insufficient exam, it's for clarification of a specific question on a disability.

[AgentOrangeWife]

broncovet-

Yes, I was hoping for the best. But they used that exact phrase and reduced the rating.

Maybe it's possible they were trying to act in our best interest but I haven't seen it so far in "our" rating process.

I'm still listing the due process violations we found in the decision..... and I'm over a dozen already. I think the RO was in a hurry trying to beat the 100 day deadline.

A/Owife