JKWilliamsSr

Probably beating a dead horse with this but I will make my standard statement. I think most raters are just flat lazy and don't bother to actually review claims properly. They go by what the C&P examiner says and it does not matter what any other evidence says. In my opinion the raters only care about the number of claims processed. They do not concern themselves with accuracy because they know the BVA will fix the problem. Only problem is that this takes and really hurts the veteran. As it pertains to the medical evidence. No rater can ignore or give outside medical little weight without doing so with a valid medical opinion. This is why so many get overturned at the BVA level. There is a ton of case law on this. Willis v. Derwinski Colvin v. Derwinksi Fletcher v. Derwinski Moore v. Derwinksi Lowe v. Derwinksi Magusin v. Derwinski Guerrieri v. Brown Ashley v. Brown Doran v. Brown Rollings v. Brown Patton v. West Jones v. Principi Coburn v. Nicholson Shipwash v. Brown

In my case I am pretty sure that the rater did not ask their C&P Examiner for clarification and that is where they lose. For one I think it is pretty stupid to request a Nurse Practitioner to clarify an opinion that was provided from a Board Certified MD. They definitely did not reach out to my Dr. On top of that my diabetes claim was denied without a C&P exam. The rater took the evidence I submitted and made their own opinion.

I understand the concept of taking the call and it does make sense. My problem is the trust factor and it is very difficult for me to get past that. Taking a phone call may give me more anxiety than it is worth and could cause issues with the call it self. If I did not provide full details on how I felt the rater did not follow the necessary laws I would have opted for the call. I gave enough details that if the senior rater actually read it a phone call would not be needed. The 2 biggest concerns with my decision are: 1. Most of the medical evidence I submitted was ignored without explanation 2. All lay evidence was ignore as well without explanation. This all boils down to a rater taking my claim and not looking at all the evidence. While I can't prove it I believe the rater saw that my IME was from Dr. Ellis and immediately decided to reject it. The rater only cited his IME in denials but in the end the rater made a critical mistake. The rater put this statement in my denial for diabetes. "So Although the statement of Dr. Ellis is credible given the medical credentials held, his statement is found to carry little weight as there is no medical document used in order to provide his opinion" By saying "The statement of Dr. Ellis is credible given the medical credentials held" the rater is stating that Dr. Ellis is credible and this credibility has to now apply throughout the entire IME report. I submitted Dr. Ellis Curriculum Vitae when I filed my claim and his credentials is clear. One of the credentials he holds is that of a "Diplomate, American Board of Disability Analysts" which means he is a board certified doctor in disability analysts. He is also board certified in Environmental Medicine and Family Medicine. Yet the rater gave more weight to a nurse practitioner. Oh....and there was plenty of medical evidence to support the opinion by Dr. Ellis the rater just ignore it. On top of that. The claim for disability cannot be denied even if it was based on an opinion (Colburn v. Nicholson). The rater still has to provide a medical basis for denial.

A lot depends on how the senior rater views my documents. I did not submit any new evidence. I only pointed out what laws the rater failed to follow. I have heard of people doing this and the HLR being closed because it was viewed as new evidence. Toss of the coin to be honest.

My HLR was picked up this morning. I chose not to have the phone call. Considering I put all the errors down in writing I did not want to discuss it over the phone with a senior rater. I just feel they would try to somehow trip me up with questions that may get me to say wording they want to use to deny me. If I am not mistaken I think the phone call is only 30 minutes and that is not even remotely enough to go over the errors in my decision. I kept my HLR as brief as possible but in the end it was still 17 pages. Will the senior rater read it? I don't know but I did a few things to the document to make sure that they will not be able to say something was not there. I cited a good bit of precedent setting case law as well as areas of 38 CFR. However, I need to make sure that it would be noticed and to that that every CFR I cited and every case law I cited I made sure to bold it in the document. So while they may decide not to read my notes it will be hard to miss 38 CFR 4.6 because it is bolded. So if they just scan the document they will not miss it. I did the same thing when I cited case law. They may not read the notes but it will be hard for them to say they did not see that I cited Colvin v. Derwinski because it is clearly bolded. I handle all my issues with the VA as if I am submitting information to the BVA because that is where I feel it may ultimately wind up. If my claim is denied at the HLR level then when I file my substantive appeal I am going to do so through an attorney. Now I know many people have done it themselves and I believe I have the requisite knowledge and ability to do but what I lack is thorough knowledge of the process and think it is best get an attorney. I do not have a problem with giving up 20% because I see it this way. 80% of something is always better than 100% of nothing.

I think Berta has given the best advise. While the VA cannot deny a claim based on the fact a doctor did not review records it is best to get them to do it anyway. In the decision I cited there is also a note in there where the courts mention that there are ways for a veteran to get copies of their records so the doctor doing the IMO/IME can see them. Also, on a personal note I think IME's go a lot further than IMO's because for an IME it is an actual examination. IMO's are opinions based on the view of records. This does not mean the VA will not deny the claim even if you do everything correct. I personally think raters cannot properly read the english language and they are lazy. I have been denied service connection because someone they claimed records that were not in there actually were. I submitted an IME report that covers all the recommended points and still was denied. I submitted an IME that had a separate diagnose and report for each diagnosis I claimed. I submitted a separate lay statement for every disability claimed. The rater only cited the IME in 3 of the 12 decisions and did not make a single reference to any of my lay evidence.

Nieves-Rodriguez v. Peake is the precedent setting case that states that a medical opinion cannot be discounted because the physician did not review the claims file. This decision was handed down in 2008. https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000014711/Nieves-Rodriguez-v.-Peake,-Dec-1,-2008,-22-Vet.App.-295

I know there is some recent case law on reviewing SMR's. I don't have the info here (at work right now) but will look later this evening. A doctor not reviewing a veterans C-File or SMR's can no longer be grounds for denying a claim. I am almost positive this is the case. I will post again in a couple hours once I get the appropriate case law.

I think you may have misunderstood my question. My concern isn't that my C&P exam results are not available. I can see them via blue button. My issue is the stage my supplemental claim is in. A VSR reviewed my claim and requested a C&P exam. That exam was on November 5th at 1pm and the results were uploaded to the system at 1:14 pm that very same day. That was 41 days ago and no one has looked at the exam results. To put it in perspective I filed 2 claims this year. One was September 16th which was an increase through ebenefits. I had a C&P exam on October 7th with a contractor. I received the decision 8 days later. The second was a supplemental claim based on disabilities there were previously denied and we are past the appeal period. So for those claims my only option was to file a supplemental claim to reopen. I had a C&P exam at a VA Medical Center and here we are 41 day later and no one at the VA has even viewed the C&P exam results even though they have been available.

Don't have a rep. I have as much trust with VSO's as I do the VA. This is from personal experience. Now I understand the holidays can play a part into some things but according to the person I talked today my C&P exam results have not yet been reviewed by anyone That was over 40 days ago.

I just got off the phone with the normal 800 number checking on the status of my supplemental claim and they told me that it is in the gathering evidence phase. This is the second time I talked to them about this and it makes no sense. I think I am about to call the white house line because I don't think something is right here. 1. Supplemental claim filed on Sept 22nd 2. Supplemental Claim scanned in on October 22nd 3. C&P exam was scheduled on October 23rd for November 5th. 4. C&P exam completed and uploaded into the system. 5. November 25th I called the 800 number and requested an updated. They said they were waiting for the C&P exam results. I told them that made no sense because Blue Button shows the results already uploaded. They changed their story and said it was because of the backlog. 6. I called today to get an update and was told it was in gathering evidence phase. The problem I have with this is the submitted a FDC with plenty of evidence. The biggest issue I have with this is during my normal claim I had a decision 8 days after my C&P exam and here we are with a supplemental claim and it more than 40 days since the C&P exam. This is not an appeal. I requested a reopen due to new evidence (that the VA claimed they did not have.)

C&P exams can be accessed via Blue Button. This is something may have been recently allowed. Up until a couple days ago the C&P results were available 3 days after they were uploaded. Recently the VA changed this to where they results are now available after 30 days. I recently experienced this. I had a C&P exam on Nov 5th and when going to blue button got the same message the OP received. 30 days later I accessed my C&P results via blue button.

I agree completely it should be shorter but realize that I may not have the luxury of brevity. It was the way the exam was done that made me decide to keep it long. I asked myself if I was submitting a brief statement or evidence. While I am not an attorney if I have to go before the BVA everything I submit would be read and that is why it was still long. In my SMR's there are 13 clinical visits for back issues. Yet in this examination the examiner only commented on of them. I see that as lazy and no matter what happens there isn't a single person at the VA that will take the time to review my entire file. Knowing this I had to make sure they were called out on everything. I am going to be honest here. I don't expect the letter to be read at all.

I agree with it being a little too long. I went back and forth against shortening it and decided to keep it the way it was. Mostly because I don't think it is getting read no matter how long it was. As sad as this may sound I am basic putting together evidence for the appeal process because I have absolutely zero faith in VARO's doing anything right.

I finally got it right this time. C&P Memorandum.pdf

UGH!!! screwed it up again.

I probably won't see it in my life time but at some point examiners and raters need to be held accountable for their failures. Mistakes happen but blatant disregarding the required rules is unacceptable. If they did their jobs correctly there would not be any backlogs. I finished my memorandum for my exam. As I went through the exam notes it was clear the entire exam was a farce. The examiner got just about every part of this exam wrong by flat not properly doing his job. Attached is what I am faxing to the intake center since it is a supplemental exam this is about. Edit: I found a typo and think is important. Correcting and will upload again.

you are correct. The claim is still pending. They recently made changes where C&P exam results were not available until 30 days after they have been uploaded. It used to be 3 days. I am willing to bet this was because people were able to make complaints before the exam claim was finished. Once the claim is done it becomes an appeal issue and does not hold up claim adjudication this helping their numbers. I filed a complaint on Friday and is now in the system. I am finalizing my breakdown of the exam via memorandum and will fax that to the intake center today. I will post it here.

Already did that. I called the 800 number and filed a complaint about the exam on Friday. I am re-working my memorandum for record with all the contentions on the exam and will fax it in on Monday.

I already submitted an IME when I filed my claim. I did an intent to file a little over a year ago after I learned by talking to some other vets that I may have been royally screwed with my ratings. I mean I was denied for claims the VA said were not in my medical records. After getting my C-File I learned they were full of it. So I gathered all of my records and went to the Ellis Clinic for an IME because I wanted to have all my bases covered. I submitted all of my SMR Records to Dr. Ellis and he reviewed them before my appointment with him. So when I filed my claim I had a completed IME report from Dr. Ellis covering every disability I was claiming and had a clear nexus for all of them. Dr Ellis also did ROM testing using a goniometer and I submitted that as well. The C&P examiner for the VA did not use a goniometer he just eyeballed it. I submitted all of the "missing" SMR's that were in my C-File. I also uploaded Dr. Ellis Curriculum Vitae with all the other evidence I submitted. It looked like a clear slam dunk for me. The examiner that did the C&P exam was a physician assistant. I also submitted a separate statement in support of claim for EVERY disability I was claiming. My wife also wrote a statement for me.

That is the thing. The examiner stated in the report that my back "The condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury" Here is the rationale he provided....word for word.... (the examiner typed it in all caps) HE WAS SEEN 1992 FOR UPPER BACK STRAIN. AGAIN IN 1995 FOR LUMBAR STRAIN. THESE WERE THE ONLY TWO CLINICAL VISITS. CURRENTLY HE HAS FUNCTIONAL AND MECHANICAL COMPLAINTS THAT ARE INFLUENCED BY OBESITY. NO RELATIONSHIP TO THE EPISODES IN THE SERVICE. 1. I have SMR's that show 13 different clinical visits while on active duty. In my 2009 denial the VA acknowledged I had back issues but they denied me because I did not have a diagnosis while in service. So I submitted the evidence that showed there was a diagnosis that I got from my C-File that they ignored. 2. I am not sure how he can get away with saying my back issues are "influenced" by my being obese. (I am 5'11 and weigh 270). If he is going to say my back problems are caused by weight he has to provide a better rationale than just saying my weight influenced it. 3. At the beginning of the exam the examiner said to me. "Tell me about your back". I started explaining the issues and not even 30 seconds in he stopped me and said I get it. I remember this clearly because I was telling him that during flare ups my back hurts so bad my wife has to put my socks and shoes on for me because I can't even do that.

Of your list of examiners to look out for my examiner was #1 and #2. My examiner barely spoke during the exam. He said tell me about your back and nothing more. The only words he uttered were when he gave me instructions for his bogus ROM exam and to push forward and backward on my legs. He also did not ask a single question. Not one.

I have to admit I was quite suprised by what was in the DBQ. My appointment was so fast I thought he may have took a great deal of information from all the evidence I submitted. For this claim I submitted an IME report, my own personal statement in support of claim. A Statement from my spouse. SMR's and Civilian records and X-Ray report. I made sure I left nothing for chance but the examiner did not mention one single piece of medical evidence I submitted. While it is an accusation I cannot prove I believe the C&P examiner was for lack of a better word pissed off at the evidence I submitted and the Dr. Ellis IME in particular. I am willing to bet he very well could have had a number of decisions overturned based on an IME from Dr. Ellis. I will attach a copy of Dr. Ellis Curriculum Vitae. It is available on his website so I am not breaking any rules there. It is available to anyone. I uploaded his Curriculum Vitae on Ebenefits and faxed it in with my supplemental claim when I filed them. The DBQ is full of blatant lies and while I am not going to say the examiner is a liar I do not know what his motives were for doing he did with the DBQ. Well in the end I will have to redo the letter I sent because when I posted my earlier message I had thought I uploaded the letter only to later learn it timed out on the page and did not upload. That is ok......though. It will give me the opportunity give it a final edit and make sure I do not miss anything. CVDrEllis.pdf

I called today and filed a complaint about an inadequate exam. I also created a memorandum for record and uploaded it to ebenefits and faxed it in as well. As I went through this exam it is clear this examiner is full of crap and pretty much lied throughout. I did not call him a liar but sure wanted to. inadequate exam redacted.pdf

What you said makes perfect sense and after taking a closer look at the DBQ it is more than likely true. I am going to call the 800 number tomorrow to file a complaint for an inadequate exam. I think this DBQ was done in a certain way to try to avoid following certain required decisions. 1. By stating that I stated that I did not experience any flare-ups this gives the examiner the out of not having to apply Deluca. 2. By stating that I did not report functional loss this gives the examiner the out of not having to apply Mitchell 3. The examiner ignored favorable evidence which is in violation of Nieves-Rodgriguez v. Peak 4. The Examiner stated that there are only 2 clinical visits for my back. I submitted 9 with my claim. However the absence of service records is not negative evidence. Other evidence was available and not reviewing this is in violation of Bucyzynski v. Shinseki 5. The rater did not use a goniometer for ROM testing.