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IMEF-Gunny

Advice appreciated - Denied due to bad C&P

Question

So, here's where I am as of yesterday:

Filed 6/16 Gulf War Vet (Gastro-intestinal disturbances, Short term memory loss, Bi-lateral arm/shoulder pain, sleep disturbances)

Recieved 2 letters (same mailing, one acknowledging my filing an FDC claim/ one acknowledging I did not opt for FDC claim, but traditional)

Called VA, they said "You did not file FDC, your claim is traditional)

January 2017 scheduled for first C&P exam (Unaware of which contention it was for)

immediately after C&P rated 30% for IBS - VSR added stool incontinence to my claim as a disability (deffered)

* My C&P examiner was an 87 year old Iranian doctor who was a family practioner working at the VAMC. He thoroughly examined my stomach issues, took xrays and check me for hemmoroids. He asked if I had hemmoroids, I said "not that I am aware of". He checked me and said I didn't have hemmoroids. He noted that I had stool incontinence requiring wearing of a pad. He asked me if I had any other issues, I said "Yes, I don't sleep well. I wake up 6-20 times per night....mostly due to shoulder/arm pain and joint stiffness. I also have very serious short term memory problems, which is my greatest concern". He said memory is mental health and asked me NO other questions.

Memory loss, bi-lateral arm/shoulder pain, stool incontinence, Sleep disturbances all deffered

checked VA notes - discovered that my C&P was returned to doc as incomplete, He was suppose to check all other contentions as well. Doc answered that "Veteran complained of stomach problems and about his hemmoroid, Veteran denied having any other issues".

I uploaded a letter disputing the docs answer as it was not accurate at all.

April 2017 called Peggy and told VA was waiting for STR's.....from Records Management center (told them RMC did not hold my records NPRC did)

April 27 - uploaded STR's to ebenefits, called Peggy and they sent that info to VSR

May VA still waiting on STR's from RMC - no response from RMC

Called RMC - RMC says they replied 3 times, stating they did not hold those records as I left USMC in 1992

Clicked "Decide claim now" as i had nothing else to send them

Yesterday - all deffered items denied "Not service connected"

Waiting on BBE to file NOD. So, my question is......

A. Do I have a decent chance for getting scheduled for a new C&P if I was denied due to Doc's answer?

B. Do I have a decent chance if they say, they couldn't obtain STR's?

C. Do i ask for DRO review in my NOD?

Any advice greatly appreciated. I have a VSO.....they've done absolutely "0" for me.....told me "it's your claim, do what you want"......so, they are out....I'm on my own.

Currently rated at 30% IBS. I have another intent to file, started 8/16, I'm considering a PTSD claim. I have a buddy letter for stressor and have been diagnosed with PTSD at local VAMC, on medication. Had a mention of suicidal ideation, in my STR's, prior to Marine Corps boot camp (possible aggravated by later service(Gulf War)).

 

Edited by IMEF-Gunny

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3 answers to this question

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Who filed the FDC, you or your VSR?

DRO Reviews take 12 to 18+- mos, DRO Hearings 3 to 4+- years before the Formal Hearing and up to a yr for the Formal Hearing Award/Denial Decision.

The Submission of New & Material Evidence that was not "EOR" (Evidence of Record) and available to the original Rater, is a VA Mandatory Requirement. Early submission of your N & ME is critical for the DRO Review!

With the Review, failure to get the N & ME in before the Review is conducted will result in an Administrative Denial. You'll have no notification that the Review was completed, about 6+ months later you will receive an Award/Denial letter with a SOC "Statement of Case," if Denied, next stop BVA.

if you think the Rater missed something or a C & P was bad, file an "Official Request for Decision Review." If you don't get immediate action within say 4 to 5 mos, File your NOD.

I personally prefer the DRO Hearing (Face to Face), mainly because it worked for me, all issues Awarded after 35 min. DRO Award Letter the same day.

Semper Fi

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A.  You can challenge the competency of the examiner.  Absent your challenge, the examiner is "presumed" to be comepetent and his exam stands.  

If you elect or neglect to challenge the competencey of the examiner, you can also get an IMO/IME to refute the examiner,  This should be easy if this 83 year old examiner did NOT state he "reviewed all your medical history"  

That is, if you had a medical history of xx condition, then that sort of refutes his statement.  You may not have complained about xx condition at the c and P exam; this exam was apparently not for xx condtion, but rather for yy condition, so why would you complain if its not relevant?  

You will need to decide whether you 1) want to challenge the exam 2) get an IMO/IME to refute the exam or 3) both or worst of all 4) do nothing

B.  Yes.  38CFR 3.156 C means you can submit new service records whenever STR's are lost but found later.  

 

Quote

 

(c)Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

(Authority: 38 U.S.C. 501(a))

 

C.  Yes, I would ask for a DRO review in your NOD, UNLESS you want a hearing which takes longer.  

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