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Everything posted by asknod

  1. Well, yes and no. If you get a low rating or something is just flat out wrong, I can look up the rater, call him or email him and ask him what he's been smoking. I can do this as an agent. Most attys. wouldn't but I never went to law school. Nobody told me I can't talk to the "VA Examiner". But when you make this a nationwide gig (including the San Juan, Puerto Rico office), I have to search through VBMS rater's notes to find out who and where they cut the rating. Then I have to call that RO's Change Management Agent (CMA) who takes care of attorneys and agents and ask her/him to have the rater call me. I like the local VA Gomers because you get to know them and how/why they'll react. I/We have a great CMA in Seattle (Tina). I call her Supergirl. You can get in touch with her on weekends and ask a favor or request an informal DRO chit chat (off the record). I always can get a "reconsideration" on a rating because I can see it in VBMS in real time. VSO's get notified and have a three-day bye to review it and call BS on the rater. Attys and agents don't. But, we can call BS if we see it within the 3-day window. There are only 3-6 big cheese DROs including the Veterans Service Center Manager and his assistant at any VARO. You have to get to know them in my business. Now we have to deal with 57 VAROs X 6-8 DROs X the 2 VSCMs each. I hate the NWQ. New claims going in right now are having to be uploaded at all the VAROs by their low GS employee staff because the EIC in Janesville WI is overwhelmed in paper and e-requests/claims. Any good plan has a weak spot. You usually find it after you deploy.
  2. Following a BVA grant, virtually all appeals are returned to the RO level (but not necessarily your own RO) to be rated. The BVA doesn't rate you unless it's for an increase. As of Feb. 14th, there is no more RAMP. It's all the AMA now. As for all claims, they are put into the National Work Queue (NWQ) and rated in the order received. It's like a big Bingo hopper with all the claims. They pull yours out and rate it. That might occur at any of the 57 regional offices across the land. It's then sent to the Consolidated Mail Processing (CMP) center in Janesville, Wisconsin for printing and mailing-again in the order received. I've noticed Janeville's running about 3 weeks behind right now. The ratings procedure is running 3-5 months from the BVA decision unless it was advanced on the docket.
  3. <<<<<< any one with TDIU generally cannot work.>>>>> Remember, there is always a work around. I just got one of my clients IU even though he has his own accounting business. It's classified as "sheltered employment". For every VA regulation, there is a repair order-well, almost. You will need a good legal representative to succeed, though. It's very important to realize each Veteran's circumstances are unique. There is almost never a "one size fits all" rule. Witness the extraschedular scheme of TDIU if nothing else.
  4. asknod


    Bluntly started off the question with: I am currently 80% IU Based on this, the PTSD is the TDIU at 70%. The 20% for left shoulder and the 10% for L ankle sprain are "leftovers" for use with a SMC S rating... but only if he wins 50% for the headaches. The 20 and 10% here are not so incredibly disabling as to be combined with the PTSD in order for the rater to be able to call it "extraschedular" to grant IU. A legitimate argument should be filed to pin the IU strictly on the bent brain using Buie if he needs the ratings to get SMC S. Edit #1. Buie v. Shinseki decision created a paradox. What if you had a tdiu and then got a lot of new ratings. §4.16 gives you the minimum requirements- 60% alone or a 40 or 50 plus whatever to get to 70 or more%. TDIU is then just apportioned to the greater of a 70 or a 60. VA will always try to combine them if possible to make a homogenized (combined) 100%. When you do that you burn up a lot of ratings just getting to the 100% combined and lack enough to attain SMC. Always remember our old friend in 3.103(a)---"(and) it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government." See also AB v Brown 94(?) (Vet seeks the highest and best award possible and the claim remains in contention until the Veteran is satisfied.) VA is notorious for inserting ''shrinkage" to how they go about this.
  5. asknod


    If you attain SC for your TBI, the headaches would most like be assigned for the TBI. As such, a 50 % rating for headaches added to the shoulder and ankle ratings would give you the extra 60% needed for SMC S. A 30% rating for headaches would not be enough ( 30+20+10= 50%).
  6. This is for Jerrell. I promised him I would draw him a map of what we talked about on the show-https://asknod.org/2019/04/12/the-new-appeals-modernization-act-and-more/
  7. Berta, you won't find the decision at the BVA yet. I'm still fighting at the AOJ level on several of these. The repair order seems to be going back to the dr. after a c&p denial (using echo) and obtaining a statement showing cardio cath proof. I'll keep you posted when I win them. One lost a leg to PAD and I used that. NOT. It has to be in the coronary arteries leading to the heart. Period.
  8. I keep hitting the wall on IHD. I have a doctor say he has CAD. I get denied. I have a dr say Arteriosclerosis throughout (including the coronary arteries and peripherals). I get denied. I say Atherosclerosis. Denied. So now, I just get the 12 ga. out and have the nexus dr. do the whole gig. I try to get my guys to go to a private doc on Medicare and get the magic IHD words. I'm finding using IHD is too nebulous for VA. I don't even ask or want the doctor to opine. It's presumptive. I just want them to say the secret word =IHD. The only VA type docs who will do an IMO/nexus is the VAMCs that share a nursing school with the VA med center -i.e. Duke/Salem/Seattle etc. Those docs do not "work " for VA. But, if you do not have them say the magic words ('I reviewed the claims file') it's dicey. To begin, a VA medical examination report is entitled to no weight if it contains only data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 304 (2008) If the VA Doc just says "It's more likely than not it's AO. " that won't win. Granted, AO is a presumptive and they aren't supposed to get in the weeds, but I'm talking about nasal cancer cases when they say it isn't in the respiratory canal or the lungs. If it's small cell carcinoma, it's AO in my book. VA doesn't agree. That's when I'm forced to go get a good IMO.
  9. https://asknod.org/2019/04/10/hadit-com-radio-show-the-ama-a-mobius-loop/
  10. SMC is a quality of life issue. You assemble it like Legos. Okay. There is no requirement to get to SMC S prior to ascending to SMC L. LOU (loss of use) of lower extremities is one SMC L. If you had LOU above the knees, It would be M. If the catheter causes you to need Aid and Attendance, that is another SMC L. Two Ls advance you to SMC O. If one of the Ls is for A&A, then you get R1. You could have two entitlements to A&A and get R1. The c&p for SMC is basic. You have to prove by medical records you have been dx'd with LOU of two extremities. VA does use the VAF 21-2680 for determinations. I've never heard of a SMC L c&p taking four hours. Generally, you medical records reveal the determination you have been dx'd with the LOU or the need for A&A- but not always. The M 21 states only a VA examiner can make a LOU/ A&A determination. Thus, even if a QTC/VES/LHI doctor says yes, VA can still say no. I am currently in that situation with one of our Hadit members right now. He deserves A&A and they refuse to grant. The good news is the Mariano v Principi decision. If you have a dr. saying yes and VA says no, that's equipoise and by operation of law, they have to grant it. Sadly, I almost always have to go to the BVA to achieve them.
  11. As a veteran who fought for SC for almost 30 years, and now accredited, I would ask you to review any and all DBQs and show me where there is a box that says "Is the condition at least as likely as not SC?" This option is available on the ones used by VES/QTC/LHI occasionally. However, regardless of what the VBA says, the general rule is as it states in your attachment ( VHA Directive 1134) above: 1. Service connection and disability ratings for VA benefits are purely legal determinations belonging exclusively to the Veterans Benefits Administration (VBA). VHA providers often do not have access to military medical records, and may not be familiar with all the health issues specific to military service, such as environmental exposure. Additionally, the issues of service connection and disability ratings are governed by statutory and regulatory provisions beyond the scope of VHA examination and/or primary care. Consequently, they are often not well suited to assess causality of a current condition in a manner helpful to inform the VBA adjudication process. VHA providers who wish to provide medical opinions that state causality must include clear and specific rationale citing evidence to support the conclusion reached, and should employ standard language appropriate for medical opinions (such as “at least as likely as not”, etc.) As for the second document (VHA Directive 2000-029), it is obsolete. It was issued prior to 2010. I don't wish to argue with you. I'm sure you feel I'm wrong. I litigate each and every day for Vets. I live and breathe VA law and study new techniques. I pay $3,000 a year to maintain that accreditation by taking the required CLEs. If I don't know the answer, I use Westlaw to confirm it. Westlaw costs $59 a minute to access. If I thought using VA doctors was a viable option, you would have heard about it years ago, sir. The CAVC and the Fed. Circuit would have tons of cites saying a VA doctor's word is gold. Now, if you are familiar with VA case law and precedence, you will know that a medical opinion is based on knowledge (the claims file and private medical records-or VA medical records). VHA doctors can fill out generic DBQs listed at the link above. If they do opine, it rarely has any bearing on a win. If they have not researched your case via the claims file, it isn't a probative nexus, sir. Try talking your VA doctor into reading a 2,000-page c-file and providing a IMO with supportive, peer-reviewed studies. I see hundreds of "nexus letters" by doctors. VA ignores them if they do not specifically note they have reviewed the claims file. You are welcome to believe what you will but speaking from experience, depending entirely on a VA doctor for a nexus is not advised. Here's a few from my file I find very much on point taken from Fed. Circuit and CAVC decisions: >The credibility and weight to be attached to medical opinions is within the providence of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). >However, Dr. Bash did not address contemporaneous evidence, including VA and private treatment records from throughout the period under consideration, that note the Veteran was, in fact, ambulatory, albeit at times with the assistance of a walker or cane. His opinions are conclusory, inconsistent with contemporaneous clinically recorded data (which he does not acknowledge), and cannot be afforded any substantial probative value. >See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). To begin, a VA medical examination report is entitled to no weight if it contains only data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 304 (2008) Remember, we are here to help Veterans win. Each must tailor his defense to win using proven techniques. As an example, if you try to submit a psychiatric evaluation from a private doctor at the beginning of your claim, it will be rejected even if it's probative. VA's shrink must always opine first. It's the law. VA c&p doctors/nurses offer their assessment of a disease or injury for the VBA adjudicators to study. It is not binding on VA. I've had hundreds who said "Yep. It's due to AO. A month later I get the denial saying it isn't. I take no pleasure in arguing with any of you here. My desire is to teach you what you need to succeed. As they say, you can lead a horse to water but you cannot make him drink. You are free to ignore my advice and it will not hurt my feelings. I've helped thousands over several decades attain SC-usually IU or 100% +. It's a recipe-just like baking cookies. If you choose to substitute baking soda instead of the baking powder called for, you don't get what you desire. Many tell me I'm wrong here at Hadit. Considering I have never lost a claim or appeal yet (knock on wood), I take it with a grain of salt. I wish the best for all of you. VA screwed me in '89 & '94. Every win is a b*tchslap for that treatment I received. They should never have said I was not in Vietnam.
  12. BroncoVet touches on an interesting precept with attys/agents. Most of us will never touch a new claim but will advise you to use a VSO to file it. The reason is simple. We are forbidden by law to charge you to file a claim. We only can enter in to the fray once a denial is issued. It also is a good experience to discover what "hands on" really means in claims development. I do not fault VSOs for their lack of ability. They are not trained to do this. They are glorified mailmen. They fill out your 526 and deliver it. I have learned to file an 8940 at the outset of a claim regardless of whether a client is working. I've won on a Vet being "marginally employed" in a sheltered work environment. He was a CPA working for himself and all but unemployed but for some of his oldest clients. The VR&E angle is good but time consuming if attempted after filing. With the new AMA, you want that in your file at the outset if possible. I advise you begin that asap and prepare it as a tool ahead of time. I never procure an IMO until I lose. Why waste the money? I'm an undying optimist that VA might be agreeable and give my client his due. Of course, I was convinced we were going to win in SEA in 70-72. As with all techniques, VA is learning to deny IMOs by sending out to get second opinions. This is called developing to deny and is forbidden by Mariano v Principi and §3.304. Thus, I always ask for a SOC asap and submit it to a VLJ. I just got back from a TB hearing in Oakland before VLJ Matt Blackwelder last Thursday. My client has Hep C and he admitted to snorting toot in 88. He has no medrecs. They burned up in 73 or so VA says. I had to explain to the judge that Stage 4 cirrhosis takes 50 years-not 30. 1988 doesn't fit the medical scenario. You could never accomplish a win like this without an extraordinary IMO presented in person to the judge. He read it while we sat there and nodded in agreement. I never forecast wins but I feel good on this one. Absent qualified counsel, he could never have won it on his own or with a VSO. A videoconference would never have conveyed my client's advanced debility from the cirrhosis. One thing I cannot impress on you folks here. There is no template for a claim. Each of you is unique as are your circumstances. There is some commonality in how it is done but each one must be produced based on the evidence you possess-and most especially- what you do not possess. I like to use this as the ultimate example of what you can create with absolutely nothing to work with but negative evidence-or worse- no evidence whatsoever. The gentleman was advised in 2015 by his VSO not to waste his time filing as he could never win it. We shall see.
  13. VA quit allowing their doctors to opine on Veterans' conditions and whether they are service connected back in 2010. You'll have to look to an outside source in the private sector to get the opinion [option]. You can use an PA-C, PA, or ARNP but an MD is the best. VA often uses registered nurses at the ROs to make the decisions. They are called "VA examiners". Good luck.
  14. First, to get to R1, you will need two (2) conditions entitling you to a rate between L and N. One of them must be A&A. Loss of use of lower extremities must be diagnosed by a doctor, not just your say so. VA often makes the mistake of using a VAF 21-2680 when they should be using a VAF 383. If you have proof (not your spouse or children) that you are unable to bathe or feed yourself unassisted, then that would qualify as one SMC condition (SMC L or A&A). This includes being a danger to yourself or others. Loss of use of upper extremities would also be a condition. Needing A&A due to the loss of or loss of use of your lower/upper extremities will not qualify. Each condition must be due to a separate disability. You could be in need of A&A for PTSD and also due to loss of use of the extremities. Two A&A ratings qualify for R1 but you will need at least one of the SMC ratings between L and N due to A&A of another person. Just because the rater says you need R1 is not a winner. The M 21 states only a VA rater can award SMC L-O or R1/R2.
  15. https://www.index.va.gov/search/va/bva_search.jsp?QT=Loss+of+use+of+lower+extremities&EW=Crawford+&AT=&ET=&RPP=50&DB=2018 Erase Loss of use and Crawford and insert what you are looking for then hit search. Choose the years you want to search to refine the decision for checking CUE.
  16. Try Fergoogle developed by a RVSR/DRO. Type in an identifier like 3.156(c) in the search bar and hit the magnifying glass. Then chose the Manual choice under it to get a good M 21 cite. It's what the raters use. Fergoogle.
  17. There's the problem. I doubt it would have been uploaded to VBMS before the 6/28 rating decision. Call 800 827-1000 and explain what happened. You may not even have to file a CUE for it. The 800 folks just got VBMS in it's most primitive form but they may be able to see it. Use the M 21 cite above. M21-1, pt. III, subpt. iv, ch. 7, sec. B(3)(a),(b). VA pukes don't speak 38 CFR. The LHI/QTC/VES run about 30 days out on most of the subcontractor submittals on the c&ps unless it's flashed RFN. If June 28th is the day they confirmed it, I'd guess they "promulgated" it about three to five days before that. Welcome to the new VA National Work Queue (NWQ), Sgt. Evidence? We don't need no stinkin' evidence.
  18. Unless you received your claims file after September 2018 when you received the denial, then the VA's IMO reasoning is what you posted in #4 when you copied and pasted the info after being asked by my fellow moderator. You pasted: 1)Service connection for left ankle condition is denied since this condition neither occurred in norwas caused by service. We did not find a link between your medical condition and militaryservice. 2) Service connection for left knee condition is denied since this condition neither occurred in norwas caused by service. 3) Service connection for right knee condition is denied since this condition neither occurred in norwas caused by service. That decision, or VA nexus if you will, with the VA seal on the first pages is called the "narrative". It may or may not have come with what we call a confirmed rating decision listing all your SC and NSC conditions. If you received your claims file before they issued the narrative, then it would not be in the claims file you now have. As I tried to explain to any who will listen, VA has their own in-house VA examiner. S/he is a medical doctor or ARPN/PA-C etc. S/he is the one who made the nexus (IMO) finding of fact that denied you. I cannot seem to impress on folks that a LHI nexus isn't worth the paper it is printed on. You can fight it with a CUE. You might win it saying it's CUE but you are in for a NOD and appeal. File a NOD and allege CUE. Cite to M21-1, pt. III, subpt. iv, ch. 7, sec. B(3)(a); see also sec. B(3)(b) (requiring correction of errors on the rating codesheet, including disability evaluations, effective dates, and diagnostic codes); id., sec. B(3)(c) (requiring referral of an erroneous decision "to a decision maker to issue a new decision" once an error has been identified). Hell, claim §4.6 was ignored. In sixteen months, VA will probably send you a SOC. At that time you can opt in to the BVA with VA form 10182. Shoot. I don't have any more advice to offer without stepping on someone else's toes around here.
  19. Allow me to address these one by one. Ms. Berta said in post #16 <<<This was a contracted C & P exam, this was not a DBQ. >>> Six hours ago...<<<This veteran has a valid DBQ written from a contractor that complies with what VA wants.>>> In law, we call this post hoc rationalization. Either it's a DBQ or it isn't. If folks here continue to insist it's a "medical opinion", my advice would be to tune it up dramatically. LHI works for VA so they are not going to be your huckleberry on any tune up. #18 Wednesday 1655Hrs <<<So you guys are saying that any veteran who gets a favorable C & P exam and also establishes their nexus , HAS to Get an IMO? ????????>>>> Please never put words in my mouth. Please review my posts and tell me where I declared you cannot win without an IMO. At best, I might have implied you cannot LOSE with an independent IMO-well, unless it involves alien abduction. My second post in this thread did say you need a good IMO to win. zzzin my opinion, SgtE5 doesn't have one. I suspect this can be won via CUE but I can see it going to appeal and VA ordering up yet another IMO from somewhere. The denial stated the old saw 'acute and resolved'. You now have to overcome that. Are you going to cling to the LHI "IMO" as your proof? That isn't CUE. A difference of opinion on how the evidence was evaluated can never rise to the level of CUE. I deal in law-not emotions and violins. Russell v. Derwinski was fairly explicit---"The claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated." #22 <<<There is NO negative medical opinion. This situation is beyond equipoise. Look up :"equipoise". There is only a favorable medical opinion. A VA- requested favorable opinion. There is no negative opinion.>>> I respectfully disagree with my colleague. The VA denied the claim. In order to do that they had to have an "opinion" contrary to the LHI doctor's positive opinion. In law, we call that "reasons and bases". For the enumerated reasons Sgt.E5 already shared with us in an earlier post (which I did read), VA denied him.That is called a negative opinion- i.e. "less likely rather than more likely". SgtE5's denial did not say "We denied because we didn't like the LHI opinion". <<<The DBQ for service connection for PTSD is not available to the public, but you can view the Review PTSD DBQ here in order to get a general idea of what a DBQ entails).">>> Please see the attached "super-duper secret PTSD DBQ" that no one will ever see below. There is no mystery here. The PTSD DBQ is not "secret". If Hill and Ponton can't find one, it indicates to me that H&P a) didn't try very hard to find one or: b) they do not have anyone at H&P with VBMS access. I am no genie and have no secret powers. Wait! I have the Power of Attorney! Why is it I can see this mythical DBQ? Folks, this is not rocket science. I don't even have a college degree- or a Juris Doctorate for that matter. <<<you are saying the law firm of Hill and Ponton, and other vet lawyers are wrong.>>> Berta, what I am saying is there are two different metrics at play here. If you choose to ignore the thrust of what I have been saying in this thread, I can't help you understand it. My law practice is aimed at getting claims/appeals done in the shortest amount of time and keeping my Vet's money in his own pocket. H&P's law practice employs many, many attys. Their job is to produce money for-guess who- Hill and Ponton. They have no incentive or the time to raise a ruckus and get things done any faster than VA's pedantic pace. I know Matt Hill quite well. I met him in San Antonio in 2017. I'll probably see him next week in Nashville. The point is I have no interest in making money. What I do have is an abiding interest in getting a win as soon as possible for my clients. I do not fault H&P, CCK or any of the other big outfits for their legal strategy but it sure isn't founded on a "gitterdone now" mentality. I offer advice here based on what I encounter. Since I am rather abrasive, I call up DROs wherever they work and confront them when they screw up as they did in Sgt.E5's case. Sometimes I succeed in changing their minds, sometimes I don't. However, I never have to shuck and jive to try to change anyone's mind when I present one of my IMOs. Knock on wood but I have yet to lose a claim or appeal. It sure is not because I'm stupid or refuse to subscribe to the way H&P thinks or operates. It is not because I am doing something no one else knows how to do. Call Matt Hill up and ask him how many claims he's lost or how many his firm lost last year. Never mind. I'll ask him next week myself. VA invented DBQs. The early ones didn't even have a box to opine on etiology. USB Hickey told Congress in 2014 that oversight would be corrected "just as soon as we use up all the old forms and came out with new ones". Hello? The forms are electronic... DBQs were created (by VA) to speed up FDCs. Did more Vets begin winning after the introduction of DBQs? Did it revolutionize the ratings procedure? Did accuracy go up? Hadit and asknod would be out of business if the VA suddenly started doing this correctly. In fact, there would be no backlog if this worked as advertised. I do this 12 hrs a day. Other law dogs send me tips and/or ask for them. I give advice here even though I have no time to do so. I subscribe to the "leave no Vet behind" theorem. I would pray it never happened to any of you that you ever had to leave your fellow airmen behind and watch them shot through the head- executed- then perhaps you will understand why Theresa's tag line is so poignant to me. My devotion to helping you-all of you- is called paying it forward. I would never offer advice I would not follow myself. If Matt Hill and company, or Chris Attig, or any other outfit offers advice or a one-size-fits-all, I suggest you review it carefully. VA law is not difficult to interpret. Getting VA to interpret it correctly is the problem. Everyone has their pet solutions on how to do it-including VA attorneys. Perhaps it's time to take a vacation from this lunacy to avoid even more controversy. I certainly take no joy in arguing. Something a lot of contributors forget when they write here- this isn't about us- it's about you-the Vets we hope to help. If no one reads the proffered info, then nothing offered will be helpful. I did read and download all the info SgtE5 presented. I have offered my two cents on how I would go about winning it. I would be interested if SgtE5 returns and tells us how his claim/appeal turned out if for no other reason than to learn from it. Nevertheless, I stand by my advice. Redacted Super-Secret PTSD DBQ.pdf
  20. Boy howdy. I sure don't want to upset the apple cart. Please, all of you, read the LHI "Medical Opinions" SgtE5 has attached. This is incredibly important before everyone discusses this any further. I did read the opinions written by the Dr/ ARNP or whoever authored it. My comment is right below it (#10). One of each of the opinion .pdfs Berta noted were my downloads. Nowhere did I say anyone should run out and buy an IMO. I tried to give an example of how a good IMO should read and one that VA can never rebut- ever. That is equipoise and the secret to a quicker win. But it is not always needed as everyone has noted. At the top right of the LHI correspondence I would ask everyone to look at what is written on the form. I see "Medical Opinion-Disability Benefits Questionnaire." Some here insist this is an IMO. I'd say it's a nexus written on a DBQ form- and a poor one at that. As for independent, that is arguable. Right under where you enter your name rank and SSN is a disclaimer. When I read a document, I read every inch of it because every phrase is operable or they would not put it on there. Please note VA is informing the examiner subcontracted by VA (i.e. not a VA employee which is very important) that "VA will consider the information you provide as part of their evaluation". Let's be clear ladies and gentleman Vets. Nowhere in that sentence did they say "VA will concur with the nexus you provide as part of their evaluation." My colleague Berta has read far more legal decisions that even I and knows a competent IMO/IME/Nexus must have certain ingredients. There are hundreds of precedental cases regarding what an IMO must have. Reonal v. Brown was one of the earliest but here is a newer batch... The credibility and weight to be attached to medical opinions is within the providence of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). But compare Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). I have fought Sgt.E5's type of denial before. Yes. Some idiot may have failed to read all the records. Or, they just deny a few times to see if you'll go away. VA denies 85% of the time as it is. 'Acute' versus 'chronic' is an antique denial ploy usually followed by 'resolved before discharge'. Since we've learned how to get an IMO, VA has been taking a lot of losses on this. They are evolving and devising new ways to deny, too. Let me offer this cut and paste from a RVSR who reads asknod.org. regarding my recent post on IMOs on my own blog. He's totally anonymous and worried VA will discover our relationship. I didn't even know you could get a throwaway email address until last winter. Re: Your IMO system Lastly, your IMO system makes complete sense. As an agent, I would definitely need to find practitioners that do IMOs. Making sure the doctors get the correct wording in there is SO important, because raters look for very specific things. The doctor's relationship with the Veteran, the doctor's credentials/expertise, their rationale, and one of the most important, what records the doctor reviewed... you nailed it on the head. Multiple times this last month, I've been forced to side with the VA doctors because the private doctor didn't explicitly state that they considered certain evidence... like the separation exam or continuous medical evidence showing chronicity or whatever. So yeah, killer synopsis on that. I do everything I can to offer advice based on techniques I've tried. Not all turn out well so I practiced on myself to learn most of them. VA constantly keeps changing the requirements too, the regulations and even the evidence we can use to sustain a claim/appeal. If I use a certain technique and I win sooner, I adopt it. My mission is to do as many of these as fast as I can and move on to the next win for another Vet. It's not like I'm a regular attorney who wants to camp out on Joe Vet's appeal for three + years for a big 20%. Ask Broncovet. I don't "need the money". If I could depend on a LHI/QTC/VES "medical opinion" to win with, I would. It would save me spending $1,500 of the Vet's money to get one (a quality IMO) I know I could win with. Speed and accuracy with a quick win is my game plan. Attorneys often litigate forever. What I hear in this thread is "Go with the VA's subcontractor's nexus and it will qualify...eventually." But it didn't- or hasn't yet. So now SgtE5 is going to spend more time in an appeals posture trying to convince VA they should honor their own medical opinion. But there you go. It isn't VA's opinion. It's the subcontractor's opinion which VA is free to pick apart, accept or discard. VA set up QTC/VES/LHI to be the straw man in this IMO gig. Remember-----VA did not say SgtE5's IMO was probative LHI did. VA ignored it as they may. Eventually, they will sort it out. I will be happy to show you folks an identical IMO for cancer of the sinus due to AO written by a VES ARNP with a pseudo-supportive cite to accepted research on a virtually identical form with the same phrase I quoted above ("VA will consider the information you provide as part of their evaluation".) . VA denied him six days later with no mention of the VES gal's probative "IMO". The discussion was fixated on the fact that the sinus cavities are not part of the "respiratory system" and thus not presumptive. I have a few more DBQ "opinions" just like it, too. One of my VA agent friends I respect very much, Myra, insists this is CUE. She disagrees with my take on how to do it. She is right- it is CUE but it is a long, tortuous road that many Vets don't relish taking-a protracted battle with the VA. I help Vets. Far more than I can ever help ask me to take their claims. I try to accomplish them as quickly and accurately as possible so I can move on to the next Vet and help them. Time is my enemy. Can you hold VA's feet to the fire on a LHI "nexus"? Perhaps. Perhaps not. I've known VLJs at the BVA to send out yet again and seek one last opinion. Few of us ever win that way. The operable word here is always "independent". I cut to the chase on a claim. My Vets are so ill, I get them a high rating-usually up in the SMCs. They make the cost of the IMO back in one check. I get 20% of one or two checks at most which is the way it really should be anyway. When your appeal gets to the BVA and you are arguing about how the LHI opinion should be controlling, the judge is eventually going to roll out Nieves-Rodriguez and ask you where your probative nexus is complete with rationale and peer-reviewed cites that rebuts the VA examiner's probative nexus. Seasons change and so is VA. Please do not condemn me if my advice seems unorthodox. I agree that some seems off the wall. Everyone is different and no two VA claims will ever be a carbon copy. Any advice I give here is usually based on one tenth of what I would want to have before I ever signed a 22a with you. I don't trust the VA to do what they say they are supposed to do. Considering we teach you to have three prime ingredients here (Caluza), somehow SgtE5 got to the VA claims window without one of the ingredients. VA provided him one and then ignored it. Now what? Should every Vet go out and get a $1,500 IMO? Certainly not. I never said that in my first post (#10) nor in my second (#15) . I merely pointed to the reason why he lost and how I would have avoided that problem. I also pointed out LHI and their ilk are not employees and purposefully gave you a flawed IMO. There are not many litigators like me who do crazy things like running out at the drop of a hat and getting an IMO. I'm flying back to DC to do a Travel Board hearing with a client from Texas to speed things up. The client doesn't want to wait for a TB date in Waco. I complain that others do not read a complete thread and enter in on page 6. By the same token, I would expect others to read what I write and not excerpt talking points. When all is said and done, I profusely hope SgtE5 gets this turned around without a costly IMO. It would seem the evidence is there but with the 'new and relevant' stricture in the Supplemental Claim Lane open to him, he cannot cite back to existing STR evidence as 'new' or relevant. This would be a HLR. It would have to be CUE'd promptly. I do not see it mentioned that this occurred after the AMA kicked in. If it's a Legacy appeal, he's in for a really long wait after his CUE NOD. SgtE5, I wish you the best on this. You should listen to everyone's advice but ultimately make your own decision. I personally would CUE it if it were my claim to save money. Some folks don't have money to throw at this. Much like a doctor, my first job is to do no harm. I do not see where I have done that. I'm sorry that other moderators here have a decidedly different opinion and I respect their advice. For everything else, there's MasterCard...
  21. I don't understand why I was denied if the c&p doctor opined claimed conditions was related to service and I have met all 3 elements. Even though her opinion is in the record, can I add a statment arguing the c&p doctor provided nexus? Or just wait for the SOC as I know it will be denied again and argure to the BVA Roger, sir. Your c&p was not an IMO ... or an IME... and certainly not a nexus letter. It was an exam (C&P) to see what's wrong with you. Just because the doctor/NP/RN/ ARNP/ PA/PA-C says it's service connected doesn't make it so. I showed you what you need-a real IMO from a doctor- not the opinion of a bedpan changer. VA says you need three things to win. They supplied #3- your IMO-because you did not. Unfortunately, they are all usually a dry hole. In order to win your claim, you must get a truly independent IMO-not one from a subcontracted outfit like VES or QTC. They work for VA and will say whatever VA tells them to. Remember Judas and the thirty pieces of silver. Best of luck, sir.
  22. Your problem here is that the c&p examiner is not the VA claims examiner. Please note in 3a on both exams that the examiner said yes it more likely than less likely. With that said, a c&p examiner is not the last word. The rater has an in-house doctor/ARNP/ RN at the RO who reviews everything and makes that decision. They do not rely on what your c&p examiner says as to etiology. Many Vets think a DBQ is the gold standard of a claim. In fact, I'm getting VA letters for some of my clients listing a download for the proper DBQ for the condition and a suggestion to take it to the Vet's private doctor, if any, to be filled out. A DBQ essentially lists where you are right now like a snapshot (photo). The c&p examiner is just a medical employee who records what you say and what s/he sees or discovers. In that sense, a DBQ is useless as an IMO. When I obtain an IMO for my clients, it has far more info and discusses history as well as peer-reviewed articles about the problems my clients suffer. A DBQ is like an office visit. It doesn't go into history and the examiner is not allowed to diagnose service connection in spite of what you see in Box 3a. I refuse to use or depend on DBQs. Attached below is what I use. Dr. Rivero's Curriculum Vitae (CV) is four or five pages long, too and discusses her qualifications for opining on the client's condition. She views the exact same set of records (VBMS, STRs, current med recs and the c-file. This is where 99% of you lose. If your IMO doctor doesn't specifically state they reviewed those records I mention, you're going to lose. Remember, VA invented DBQs. They could just as easily be called CYA forms. And that's all I'm going to say about that. Humphrey IMO redacted.pdf
  23. Always remember. To maximize your SMC, you need to show that you need help. Or... that you have loss of use of your extremities. VA will not remunerate you twice (pyramid) for you ratings. Which brings an interesting fact to the discussion. Did you know you can get A&A awarded for two separate conditions? If you had PTSD so intense you needed the A&A of another, that would be one SMC (L). However, you could also have an A&A awarded on top of it for needing A&A for Ischemic Heart disease or DM II in the advanced stages. Getting R-1 is contingent on having two SMC ratings between L and N. Let's say you have loss of lower extremities due to Parkinson's (very common). You cannot apply for A&A based on Parkinson's. The admonition is contained in §3.350(e)(ii)-i.e. "No condition being considered twice." Conditions are defined in the Breniser decision which is a very good read. https://www.courtlistener.com/opinion/817365/breniser-v-shinseki/ Best of luck to all of you on your claims journey.
  24. Here's a shot of my VBMS e-folder. You can bring up 10, 25, 50 or 100 documents at a time but this pig only loads just so fast. By contrast, if you obtain your c-file from the Records Management Center, it looks like 52 card pickup. This began in about 2006. One day VA went from being nice with the file to just heaving it into the copy machine. Obviously two versions exist- the orderly VBMS scanned version and the old copied paper file now in .pdf. and with no rhyme or reason as to filing order.
  25. Loyal, If you could see how VBMS is arranged, you would know a nexus /IMO sticks up like a red flag. It's right near the VA exam notes after a 526EZ is filed. If it's a private one rather than a VES/QTC IMO type, it is labeled "Medical Opinion-non govt. facility." It's not like you have to search for it. A c-file is a fustercluck of documents in whatever order they were inserted. A VBMS e-file is chronologically arranged very carefully.
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