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

[AgentOrangeWife]

On 3/24/2017 at 8:26 PM, MikeHunt said:

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.

mikehunt-

Exactly! Thus the confusion. I love that "nonsensical fragment". Just for fun, I'm going to work that into the CUE.

I did find a reference to "revised mets" in the bva search - so this is not the first time an RO has asked for "revised mets". RO erred and should have scheduled another C&P or an IMO.

A/Owife

Edited April 5, 2017 by AgentOrangeWife

[Berta]

Vync made some excellent points. My search at the BVA under revised mets produced this staggering amount of claims:

"Page 1 of 90970 results — searched 944716

Query: (revised mets)"

but it might only means the words mets appeared in most of them.

When was the actual C & P exam done? And Do you have a copy of it?

Was it signed and if so have you checked the examiner's credentials to see if they can really opine on a cardio exam?

I had a claim remanded for a cardio opinion in my AO DMII claim, but I got a PA opinion and immediately rebutted it with my lay medical opinion, as to it's being "too speculative" .I already had 3 IMos and the VA had 2 opinions against the claim. The BVA agreed with me, that the PA opinion was too speculative and threw out the PA opinion.I knew more cardiology than the PA did and the BVA had proof of that from my past FTCA case.They awarded that claim.

 

You certainly need to see if your husband's medical evidence does not warrant a change or revision in the mets score. I mean to compare the VA SRD criteria to his documented medical evidence.

 

I dont see this as a CUE basis because CUEs are not valid if they question medical findings.

Can you scan and attach the decision for us to read?

Cover the C file number, name, prior to scanning it.

 

I think I am missing something in this post...have you posted elsewhere in another thread too????

 

You might have to consider getting an IMO from a real cardio doctor...but that is really too soon to know....

 

And if the Addendum and C & P doctor(s) had no expertise in cardio, that is a good point to use to fight this.

 

But as Vync made a good assessment of why this might have happened and the VA might be right....

 

Might be....and then again they sure might be WRONG. 

 

 

 

 

 

Edited April 5, 2017 by Berta

[Berta]

To add, this case at the BVA contains some reasons why many CUE claims are not valid.

https://www.va.gov/vetapp15/files3/1524889.txt

And it gives the basic run down we have in our CUE forum as to what constitutes a valid CUE.

[AgentOrangeWife]

Berta -

I've been reading decision letters and evaluating the evidence listed. I think I found an unadjudicated symptom going back to the original claim (dated prior to the change in rules for inferred claims). Heart related and unadjudicated and he is only rated for heart - so it makes sense to me. I looked up the hadit posts and am studiously studying Roberson Smezraj and Moody.

I am also pondering your "clear the cue so I can file my NOD" strategy and working on that too. If I remember correctly, you have been successful with the strategy. I like it because I am a fighter.

A/Owife

Edited April 5, 2017 by AgentOrangeWife

[Berta]

I think  you mean my strategy of getting them to call CUE on themselves within the appeal period.

Lots of info in CUE forum on that.

This is my most recent GCY CUE claim and it's fast results:

http://community.hadit.com/topic/68746-tracked-item-for-rmc-medical-records/?page=4#comment-424438

(I call them GCY 'Go Cue Yourself'  claims here but I asked the new Secretary to consider preparing a Fast Letter on them, as, although the tactic has worked for me and I think 2 others here, there is no actual regulation that vet reps and VSos could consider early on, as soon as a decision is made, that could involve CUE.)

If a CUE occurred, in your case, it is right in the decision and the VA verbiage and rating info that you have received.It could be something in the Evidence list, that they listed but overlooked, or worse yet, they failed to consider probative evidence that they did have ,and never listed it at all.

A CUE claim (most of the time) rests solely on documented medical evidence in VA's possession at time of alleged CUE, as well as the regulations in place when the decision was made.

However they (VA Edu Department -an oxymoron sometimes) made a CUE in my daughter's DEA entitlement and fixed that fast too. 

Whoever made the initial decision could not even read the regulations on the DEA form that apply to veterans.My daughter's military service extended her DEA entitlement by 7 years. The first award gave her only one Month! The second award came in three weeks after she sent them the CUE and NOD ( she said I prepared both a CUE and a formal NOD, attached the regs to it , and she signed it, and also attached again her DD 214- I dont have a copy---this was many PCs ago) 

and the new award was with her proper entitlement to 7 years of DEA.

It was one of the easiest CUEs I ever prepared.

You seem to have a decision of a reduction.

In 1988 they tried  to reduce my husband's 30% SC PTSD to 10%.

I didnt even think about CUE at the time-I didnt know much about CUE claims, so I prepared a scathing NOD. It was quite an attention getter.( and actually funny) but my husband was really pissed off.

The AFGE Union Secretary ( he had started working for the VA) told him they would mess with his rating if they could,since he was employed by the VA, but the sudden proposed reduction was unexpected.

I used and enclosed the exact regulations they used to propose to reduce, against them ,with additional evidence, that the VA had.   Within a few months they dropped their bogus and absurd reduction idea.

Here they were trying to reduce his 30% SC in 1988

but his posthumous EED for 100% P & T SC PTSD on my accrued claim, was 1991 (3 years later).

It shows that PTSD does not usually get better, it can get much worse, and the whole 6 years after his initial VA employment ,they malpracticed on him ,and caused his wrongful death..

 I have a good friend USN Ret Commander who works for the same VA. He emailed me that he has developed a potentially serious condition and I have rminded him again to make sure his treatment there is due to his veteran';s status.

If anyone out there  is a veteran who works for the VA make sure they are treating you as a veteran, and not as an employee.

That is why they began to malpractice on my husband. It was a documented part of my FTCA evidence. It was an excerpt from M21-1 for VA physicians.

I was sitting on the floor of the Corning law library,exhausted from hours of trying to find VA regulations ( no internet in those days as we know it now.)

I had no lawyer and no way to find an IMO doctor.1995.

I had filed a SF 95 FTCA claim and was trying to find legal info for my dead husband's pending 1151 claim.

Something in the stack of 38 USC stuff I was almost too tired to review-caught my eye.

It was an excerpt from the VA Physicians M21-1 guideline dated 1988.

It basically stated that when treating aVA  employee who shows up at the ER, make sure they are back on the job within 3 days.

This is why ,when my husband had a heart attack on the VA job , they gave him sudafed and 3 days off and diagnosed the heart attack as a sinus infection. It was prime facie evidence of their malpractice.

 

 

 

.

 

 

 

 

 

 

 

Edited April 6, 2017 by Berta

[AgentOrangeWife]

Berta -

They treated a heart attack with sudafed? Am I understanding that correctly? O. M. G. Seriously. They kept saying my husband had reflux. Then the VA "md" reduced my husbands heart medication 3 weeks before he had a...........heart attack.

Anyway, that's not where I'm going to use the "clear the CUE so I can file my NOD". The original claim is where I found the CUE. They mentioned one symptom but not the other. It's clearly a CUE and the symptom is described verbatim in the regs.

I am also going thru BVA cases and the M-21 and finding all sorts of interesting tidbits of mandatory regs relating to "inferred" and "fully developed" and "duty to assist" and "examination disclosing improvement" and "medical opinion" etc. It's going to be very interesting to see how this document shapes up. Roberson Smezraj and Moody really tie it all together nicely. I'm struggling to keep it to one page but I will make it happen.

=========

The topic of my original post is an A/O reduction from 100% without an examination and it is so poorly done that my jaw drops every time I re-read it. But that's for a future date.