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wally1960

Cherry Picking Regulation

Question

Hello all, this is my first post and hope I'm doing this right. Does any one know the regulation number that states the VA must make it's decision using all the evidence in it's "totality" an not just cherry pick. Example, not including it's own doctors submitted medical statements and notes to make a decision!

Thanks

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http://www.hadit.com/forums/index.php?show...mp;#entry185978

This above post by Carlie has the M21 provisions.

Also 38 CFR 4.3 and 4.6.

"Example, not including it's own doctors submitted medical statements and notes to make a decision!" I know the feeling on that-

you can send in this information yourself - via copy of these medical records, highlighted as to what they missed.

I assume these were notations or entries by a VA doc that were favorable to your claim? Was it a C & P exam?

They only seem to disregard the good stuff.

If this is a MH issue then you might definitely have to get these records and send them as I mentioned with a cover statement on a 21-4138.

They did this to my husband- they completely disregarded 6 years of psychiatric records to include results 6 specific neuro-psyche tests.It took the VA two whole days to do these tests on him and then they disregarded them.

I went to his shrink and asked for the records and submitted them myself. At the same time his shrink sent them a letter stating he was totally unemployable by combat PTSD. When they got the records and the shrink's statement (they also totally ignored his SSA PTSD award, they awarded his claim.To me, as an accrued benefit.

He had been dead for almost 3 years by then.

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I had psychological testing done at the VA back in 1972. The VA not only ignored the testing they lost it. The psychologist wrote up something and it is no longer in my records. Someone pulled it. I wonder how that happened?

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Berta,

I love your response:

"They only seem to disregard the good stuff"

Does this also apply to the C&P doctor or just the rater?

Example:

WERE SERVICE MEDICAL RECORDS REVIEWED: Yes

PERTINENT EVIDENCE: Several visits for lbp started in May 1990. Separation exam normal spine x-ray.

Based on that small write up, how do we know that the C&P doc looked at everything?

There were no mentions of physical therapy, medical assignment to quarters, or even profiles for weeks and weeks.

There is a big difference between having a lower back pain visit in comparison to being injured in a fall, a motor vehicle accident, or even moving military office furniture.

"They only seem to disregard the good stuff"

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Thanks Berta, That's what i'm looking for. No it wasn't anything mental. When I put in for that, there was no problem. I guess it was obvious even to these nitwits, I'm nuts.

No, it was an old claim on my knees. They used only part of the c&p docs report and ignored all of the VA's own orthopedic doctors notes, including a specific letter addressed to the board from the ortho department head here at VAMC Jackson.

I won my case after fighting for fourteen years. I stopped fooling with these idiots here in Jackson and had the case sent to the board in 2002. After two different trips to DC and two judges (long story), I won, but the percentages they awarded, they must of made up cause it don't match their regs.

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Did you appeal the ratings?

Vync asked "Based on that small write up, how do we know that the C&P doc looked at everything?"

We can and should assume they don't.

Best thing to do is to copy the SMR entries, highlight the parts that support the claim with an orange or pink magic marker, do the same with any copies of inservice personnel records that support the claim and send it to the VA as evidence with a 4138 explaining why these entries are critical to your claim and must be considered.

I used to help my former rep with claims. You would be surprised how many times the VA says the"the SMRs are silent" for blah,blah,blah.... but if one takes the time to search their SMRs often they can find evidence that is loud and clear.

I used all sorts of methods to decifer SMRs -they are not always very easy to read.One vet's SMRs took me two weeks of daily work to decifer-there wasnt many pages but I had to research a lot of his documented symptoms and that took consderable time -symptoms which the Army misdiagnosed (and it proved his claim) so no C & P doc is going to do that-if a C & P doc or anyone at the VA had actually read his SMRs his claim would not have been at CAVC twice and at the BVA twice. (even his rep didnt read them)

He got 12 years of retro.

Things have to be explained to the VA like they are ten years old.We are responsible for sending them what they need to focus on.

Wally said:

"No, it was an old claim on my knees. They used only part of the c&p docs report and ignored all of the VA's own orthopedic doctors notes, including a specific letter addressed to the board from the ortho department head here at VAMC Jackson"

This stuff has to be re-submitted again-and I suggest you ask them for Reconsideration of the ratings based on this evidence that they failed to address.

The reconsideration does NOT stop the NOD clock however-they might work on the recon or they might piss away the NOD year by taking no action on it -hoping your NOD is not filed in timely manner.

"I won, but the percentages they awarded, they must of made up cause it don't match their regs."

You have to show them how the %s are incorrect. You can send them the regs highlighted as to what the correct rating should be and then refer them to the medical evidence that supports the higher ratings.

I admire your tenacity Wally- 14 years is a long battle.

If I had not done what I suggested above ,I would not have succeeded in my claims or worse yet-

it is possible I could not have obtained the favorable IMOs I got for last AO claim-

I didnt need SMRs but the more recent claim and IMOs involved misdiagnosed conditions from a FTCA and 1151 settlement-

yet I still had to prove the true etiology of those misdiagnosed conditions as the VA doctors never did.

The etiology was AO DMII.

When I proved the basis of the claim to myself I was able to get an IMO very fast as I could set out the puzzle with all the parts for the IMO doctor.

Only the BVA after 7 years filing the claim, actually read my evidence.The RO managed to ignore 4,000 bucks of IMOs and even a IMO freeby from a former VA doctor who I approached and who supported my claim.He was the sole VA doctor who did not want to support the cover up of major malpractices.

My point -after this long post is that-

I learned we cannot assume the VA will do anything right.

And we have to tell them exactly why they need to make an award or proper rating based on the medical evidence.

It does not hurt to highlight by bright colors -anything in your med recs they need to focus on and refer them to the highlghted part.

I also have printed stuff onto bright flourescent pink and lime green paper and even made a bright orange envelope once to send them another copy of my husband's autopsy after 10 0r 12 copies had "disappeared".

I have mentioned here for years that the Buffalo VARO employs an MF.

A 'mysterious force' that removes the good stuff- but if you get your C file copied years after the fact like I did-(dont know why I waited so long) ALL of the missing stuff to include a critical FTCA report they said they never got-was all in my C file.

Having copies of your SMRs,any other personnel records if needed and a copy of the C file and copies of all medical records is imperative to get these days -to combat their erroneous statements for denials.Every claimant has more time then VA does to read their stuff and access what they need from it.

The BVA lawyers are more impeccable then ROs when it comes to reading the evidence.Evidence means everything to a lawyer.

VARO raters are often low level GS employees who need direction from us as to how the evidence supports the claim.

Edited by Berta

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