teabeeyea

Yea as I state in my paper it first came to public light in VCS et al v. Shinseki et al. Thing is rather than back off the idea with the 2008 controversy VHA funded PTSD center has been emboldened to do more of it.

I've recently published some research on PTSD disability claims as an open letter to Jim Strickland. What I've found is that VHA employed and/or funded PTSD specialist have been treating the act of filing for disability and/or self advocacy as pathology. Feel free to repost and/or pin this link as you see fit. http://www.scribd.com/doc/184250448/Compensation-Seeking-Veteran-Paper-Autosaved-docx Thanks! Eric Hughes PS: Don't forget to check out the hyperlinks in the footnotes.

If I read this right.... a veteran can request that errors on a medical examination be "Fixed" under the Privacy Act. The VA knows this. BUT,.... it also seams as if the VA can "Alter" medical examinations at the Hospital Level and that this is too be done with communication with the VARO. Is that how other folks read this directive? Or am I blowing hot air again?

Department of Veterans Affairs VHA DIRECTIVE 2004-014 Veterans Health Administration Washington, DC 20420 April 14, 2004 CHANGES IN COMPENSATION AND PENSION EXAMINATION REPORTS 1. PURPOSE: This Veterans Health Administration (VHA) Directive provides policy for making requested changes in Compensation and Pension (C&P) Examination Reports. 2. BACKGROUND a. The Automated Medical Information Exchange (AMIE) package is the official source for a completed C&P Examination Report. b. The Veterans Benefits Administration (VBA) has a custodial relationship to the C&P Examination Reports. Since rating decisions may have been made based on the existing documentation, any changes made to the C&P examination, must be coordinated with the appropriate VA Regional Office (VARO) for action to ensure consistency. c. Currently, VHA clinical or contracted staff performs C&P Examination and Reports findings to VBA via AMIE. VBA prints a copy of the electronically-transmitted completed examination via AMIE, and uses the paper version to adjudicate veterans’ disability claims. Requests for changes to the C&P examinations are routed to the original author for approval or disapproval. d. Changes to existing documentation may be made in accordance with the Privacy Act and Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule; however, a critical communication gap occurs because VBA is not electronically alerted to any changes made to an examination in AMIE after the original version of the completed examination is available. NOTE: Communication with VBA is critical since changes to examination reports may significantly affect the outcome of a disability rating decision. 3. POLICY: It is VHA policy that changes to C&P Examinations Report must be the same in Text Integration Utilities (TIU) and in AMIE. 4. ACTION: When VHA health care facilities utilize TIU functionality to store the examination report, the examination must also reside in AMIE. Once the AMIE report has been released to VBA, any changes made to the report in TIU must also be made in AMIE. Whether the report resides only in AMIE or in TIU and AMIE, a copy of any changed examination will be sent to all parties who have previously received the examination. VHA health care facilities must keep a copy of the C&P examination compiled by the facility’s physicians. a. Changes. Administrative corrections or updates, e.g., date of birth, made to the C&P Examination Report need to be processed by the Privacy Officer, or qualified designee. THIS VHA DIRECTIVE EXPIRES APRIL 30, 2009 VHA DIRECTIVE 2004-014 April 14, 2004 b. Amendments (1) A request from a veteran to amend a C&P Examination Report must be in writing and submitted to the Privacy Officer at the VHA health care facility that performed the examination. The VHA health care facility should process the request only after contacting the VARO as indicated in subparagraph 2b. NOTE: Amendment processing information is located in VHA Handbook 1605.1, Privacy and Release of Information. (2) If the VARO receives the amendment request, it needs to be forwarded to the attention of the Privacy Officer at the VHA health care facility that performed the examination. The corresponding Privacy Officer can be located via http://vaww.vhaco.va.gov/privacy/Documents/VHACOPOList.doc. In addition, a copy of the amended C&P Examination Report is to be provided to all parties who previously received the report as required by the Privacy Act and HIPAA Privacy Rule. 5. REFERENCES a. VHA Handbook 1605.1, Privacy and Release of Information. b. Privacy Act of 1974. c. HIPAA Privacy Rule, Title 45 Code of Federal Regulations Parts 160 and 164. d. VHA Handbook 1907.1, Health Information Management and Health Records. 6. FOLLOW-UP RESPONSIBILITY: The VHA Office of Health Data and Informatics (19F) is responsible for the contents of this Directive. Questions may be directed to (760) 777-1170. 7. RECISSION: This VHA Directive expires April 30, 2009. S/ Art Hamerschlag for Jonathan B. Perlin, MD, PhD, MSHA, FACP Acting Under Secretary for Health DISTRIBUTION: CO: E-mailed 4/15/2004 FLD: VISN, MA, DO, OC, OCRO, and 200 – E-mailed 4/15/2004

The PFT test to me is useless for treatment. The VA nurse ask me not long ago " have you ever had a pulmonary function test" I said I have had many but why do you ask and why does it matter, she said the computer told me to ask. I said oh I see. It is for diagagnotic reasons but otherwise as I said it is useless in treatment. I guess the test only indicates if you need treatment and possible what type treatment. Gerd goes along with PTSD, COPD, Sleep Apnea, no doubt. I hope this and the site helps.

Here in Cincinnati that sort of behavior was even encuraged to a some degree as the VAOIG cited the Cinci VAMC with failing too perform Peer Review's of examiner's work.

Bottom line: A C&P examiner MUST follow the C&P examination Worksheet for a given type of exam. They can be found at: http://www.vba.va.gov/bln/21/Benefits/exams/index.htm Furthermore, the examiner must RATIONALIZE their opinion of your case by citing the specific types of imperical test results and physical examination observations made from the C-File and the physical examination. AND MUST BE TIED TO THE FACTS OF THE CASE IN THEIR HISTORICAL ORDER! If the C-File is not present at the examination, raise a Daubert Rule of Evidence 702 objection in a Notice of Disagreement. Even the day of examination is proper, but not needed. Check the examiner's credentials at the State and Specialty Board level. If they are not current, raise Daubert Objection Rule 702 in the NOD. If the historical review is out of order, raise Daubert. (Out of order C-Files suggest evidence tampering with your case) If the examiner fails to Rationalize his opinion in an comprehensive discussion ..... Raise Daubert. Basicly, the examiner can't say something is so just becouse he has an M.D. or Psy.D. after his name. He has to justify the opinion using the standards of his profession.

Sorry that I posted these in reverse order. Start with the bottom, and work your way up

The veteran recalls 38 CFR 4.6 Evaluation of evidence. It reads: The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law. (Emphasis added) That the Rating Board, and Rating Officers execute the responsibilities of their office "as contemplated by the requirements of the law" is unalienable. In Daubert v. Merrell Dow the Supreme Court expounded upon Federal Rules of Evidence: Rule 702. It charged all federal trier's of fact before allowing the admission of expert scientific testimony to be entered into evidence. Commonly known as the "Dauber test", it in essence compels the court to limit expert scientific or technical testimony to matters which are specifically and directly tied to the data and evidence at had. The data used must be evaluated using the Scientific and Technical Methodologies used by the expert's profession. While the opinions rendered by an Medical Examiner, need not be generally widely accepted by the scientific community, the opinions must ultimately be derived by the methodologies required practice of good "medical science". Quoting Justice Andrew Blackmum, writing, and joined by Justices White, O'Connor, Scalia, Kennedy, Souter, and Thomas, JJ., joined. the Majority Opinion in Daubert v. Merrel Dow reads: © Faced with a proffer of expert scientific testimony under Rule 702, the trial judge, pursuant to Rule 104(a), must make a preliminary assessment of whether the testimony's underlying reasoning or methodology is scientifically valid and properly can be applied to the facts at issue. Many considerations will bear on the inquiry, including whether the theory or technique in question can be (and has been) tested, whether it has been subjected to peer review and publication, its known or potential error rate, and the existence and maintenance of standards controlling its operation, and whether it has attracted widespread acceptance within a relevant scientific community. The inquiry is a flexible one, and its focus must be solely on principles and methodology, not on the conclusions that they generate. Throughout, the judge should also be mindful of other applicable Rules. Pp. 12-15. (emphasis added) Thus, the US SUPREME COURT. charges all Federal Triers of Fact -which includes VA Rating Boards and the Court of Veteran's Appeals- to base their assessment of admissibility and comparative weight, too an Expert Witnesses Opinion based on the methods the examiner used to arrive at their conclusion. Not on how well the conclusion itself fits with the Rating Officer's or the courts preconceived notion of the veteran's case. As further established, -when it comes to the ordering of, or conduct of a VA Medical Examination- Rating Officers can no longer "Wiggle Out" of judicial oversight by citing 38 U.S.C.Sec 1155. Subsequently, in 1999 the US Supreme Court expanded the "Dauber Test" in Kumho Tire Company, ltd, v. Patrick Carmichael et. al. Again, quoting the majority opinion: (a) The Daubert "gate keeping" obligation applies not only to "scientific" testimony, but to all expert testimony. Rule 702 does not distinguish between "scientific" knowledge and "technical" or "other specialized" knowledge, but makes clear that any such knowledge might become the subject of expert testimony. It is the Rule's word "knowledge," not the words (like "scientific") that modify that word, that establishes a standard of evidentiary reliability. 509 U. S., at 589 -590. Daubert referred only to "scientific" knowledge because that was the nature of the expertise there at issue. Id., at 590, n. 8. Neither is the evidentiary rationale underlying Daubert 's "gate keeping" determination limited to "scientific" knowledge. Rules 702 and 703 grant all expert witnesses, not just "scientific" ones, testimonial latitude unavailable to other witnesses on the assumption that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline. Id., at 592. Finally, it would prove difficult, if not impossible, for judges to administer evidentiary rules under which a "gate keeping" obligation depended upon a distinction between "scientific" knowledge and "technical" or "other specialized" knowledge, since there is no clear line dividing the one from the others and no convincing need to make such distinctions. Pp. 7-9. (emphasis added)

This is why Martinak v. Nicholson is so important: ..."The Secretary's discretion over the [rating] schedule, including procedures followed and content selected, is insulated from judicial review with one recognized exception limited to constitutional challenges." Wanner, 370 F.3d at 1131. Although the Secretary believes otherwise, a regulation prescribing the policies and procedures for conducting a VA medical examination is not a part of the rating schedule or subject to the prohibition on judicial review. The rating schedule consists only of those regulations that establish disabilities and set forth the terms under which compensation shall be provided. 38 U.S.C. 1155. A regulation prescribing the policies and procedures for conducting a VA medical examination does not serve these purposes. Indeed, most of these regulations do not mention a particular disability at all. See, e.g., 38 C.F.R. ?? 4.1, 4.2, 4.10. These regulations also do not set forth the terms under which disability compensation shall be provided. Those terms and conditions are listed elsewhere, i.e., in the diagnostic codes and rating tables applicable for a specific disease or injury. Moreover, the VA General Counsel has opined that the mere placement of a regulation in part 4 of title 38 of the Code of Federal Regulations does not make the regulation a part of the rating schedule or subject to the prohibition on judicial review, and we agree. See VA Gen. Coun. Prec. 5-2002 (May 17, 2002) [hereinafter G.C. Prec. 5-2002] ("Placement of a regulation in Part 3 or Part 4 of the C.F.R. is not determinative of its susceptibility to judicial review."); see also Sabonis v. Brown, 6 Vet.App. 426, 429 (1994) (stating that the Court is not bound by a precedent opinion of the VA General Counsel). The Secretary's characterization of a particular regulation as part of the rating schedule does not do so either. See Theiss v. Principi, 18 Vet.App. 204, 213 (2004) (noting that a court need not accept the agency's characterization of a rule or regulation (citing Hemp Indus. Ass'n v. Drug Enforcement Admin., 333 F.3d 1082, 1087 (9th Cir. 2003))). Again, the rating schedule consists only of those regulations which establish disabilities and set forth the terms under which compensation shall be provided. 38 U.S.C. ? 1155. None of the specific regulatory provisions at issue here serve these purposes. See 38 C.F.R. ?? 4.1, 4.2, 4.10, 4.85(a). More importantly, the Secretary's duty to perform medical examinations does not arise under the rating schedule statute, 38 U.S.C. ? 1155. In Green v. Derwinski, we held that a regulation instructing the Board to return inadequate medical examinations, 38 C.F.R. ? 4.2 (1989), was promulgated by the Secretary pursuant to his statutory "duty to assist a claimant under 38 U.S.C. ? 3007(a) (1988)," and that the "fulfillment of th[is] statutory duty . . . includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the valuation of the claimed disability will be a fully informed one." 1 Vet.App. 121, 123-24 (1991); see also 38 U.S.C. ? 5103A(d). In other words, the Secretary's medical examination regulations are actually his construction of the "'gap left . . . by Congress'" in the duty-to-assist statute. Chevron v. Natural Res. Def. Council, 467 U.S. 837, 843 (1984) (quoting Morton v. Ruiz, 415 U.S. 199, 231 (1974)); see 38 U.S.C. ? 501 (general rulemaking authority). Moreover, Congress has deliberately chosen not to include the Secretary's duty to conduct medical examinations in the rating schedule statute. This omission suggests that judicial review of VA medical examination regulations is allowed, not that it is precluded. See LeFevre v. Sec'y, Dep't of Veterans Affairs, 66 F.3d 1191, 1198 (Fed. Cir. 1995) (acknowledging the "well-settled presumption that agency actions are reviewable"). Furthermore, our statutory obligations require that we ensure the integrity of the procedures used by the Secretary to gather the evidence necessary to substantiate a claim. Jolley v. Derwinski, 1 Vet.App. 37, 39-40 (1990) (holding that VA must follow its own procedural rules by assisting a claimant in obtaining newly discovered medical records). Our review of the Secretary's medical examination regulations is part of this obligation. For these reasons, we hold that a regulation prescribing the procedures for conducting a medical examination is not part of the rating schedule or subject to the prohibition on judicial review of the rating schedule by this Court... If the underlined portion of the above Judical opinion rendered by Judges Kasold, Moorman and Lance is read closely it is apparent that the Court clearly belives that the Secretary purposely misrepresented VA regulations at the June 14, 2007 hearing. Medical exams are not protected from Judicial Review. Thus, Per Martinak v. Nicholson, the a medical examiner's report must live upto the same strict standards of professional admissibility required of every other Expert Scientific or Technical Witness that testifys before a federal trier of fact.

Medical Examiners are "Expert Witnesses" under the federal rules of evidence. There is a huge body of case law -outside the COVA- that basicly states when an Expert Witness either does not do his job, or who's opinion is obviously full of non-scientific "crap", the FEDERAL TRIER OF FACT must toss the opinion out on its ear..... But only if the other side ASKS that the opinion be tossed out on its ear. The VA is getting away with sloppy examinations exactly becouse Vets don't know that they can OBJECT to the quality of the examination, based on the examiner's lack of qualifications, or lack of care in performing the examination. This body of non-va case law was opened up by the COVA this past summer. To learn more see your local law librarian at your local Law School. Ask for the annotated federal rules of evidence published by "West Law" hard bound copy. UNITED STATES COURT OF APPEALS FOR VETERAN'S CLAIMS Joseph Martinak v. R. James Nicholson COVA Docket No. 05-1195, Argued June 14, 2007 Decided August 23, 2007 before Judges Kaskold, Moorman, and Lance. UNITED STATES SUPREME COURT RULING Kumho Tire Company, Ltd., et al. v. Patrick Carmichael et al. 526 U.S. 137; 119 S. Ct. 1167; 143 L. Ed. 2d 238; 1999 U.S. LEXIS 2189; 67 U.S.L.W. 4179; 50 U.S.P.Q.2D (BNA) 1177; 50 Fed. R. Evid. Serv. (Callaghan) 1373; CCH Prod. Liab. Rep. P15,470; 99 Cal. Daily Op. Service 2059; 29 ELR 20638; 1999 Colo. J. C.A.R. 1518; 12 Fla. L. Weekly Fed. S 141 Prior history: On writ of certiorari to the United States Court of Appeals for the Eleventh Circuit UNITED STATES SUPREME COURT RULING William Daubert, et ux., etc., et al., Petitioners v. Merrell Dow Pharmaceuticals, Inc. Citations: 509 U.S. 579; 113 S. Ct. 2786; 125 L. Ed. 2d 469; 1993 U.S. LEXIS 4408; 61 U.S.L.W. 4805; 27 U.S.P.Q.2D (BNA) 1200; CCH Prod. Liab. Rep. P13,494; 93 Cal. Daily Op. Service 4825; 93 Daily Journal DAR 8148; 23 ELR 20979; 7 Fla. L. Weekly Fed. S 632 Prior history: Summary judgment granted to defendants, 727 F.Supp. 570 (S.D. Cal. 1989); affirmed, 951 F.2d 1128 (9th Cir. 1991); certiorari granted, 506 U.S. 914 (1992) FEDERAL RULES OF EVIDENCE: Rule 702: Testimony of Experts If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Martinak_05_1195.pdf

I had an examination in May. They asked me to bring records. Accepted some of them. But only those they three pages that supported the va's case. Not the 100 or so pages that supported my case.

Key phrase in your statement "MOST OF THE FOLKS" in triage don't know what the box 26 codes mean. It only takes one supervisor at one VISN triage desk to slow down a claim with a certain code or codes. The grunts doing the actual work need not know what the code means. They would not need to know what a code "Means" to hold it up, or slow it down. Also if they have access to box 24, then they have acces to box 26. Last, box 26 is ABSOLUTELY used by state Veterans Agencies and GI Bill benifits issues.

Try this again: http://www.veterancourtcodes.com/

Think separation "Under Honorable Conditions" discharge is the same as an "Honorable" discharge? Then like most veterans you are wrong. Pull out your DD214. Look at block #26 - directly under block #24 "Character of Service". If you where enlisted and anything other than the letters "ETS" are in block #26, your dd214 may have cost you a job, money, or VA benifits in the past. Absent congressional action, it may continue to do so for the remainder of your professional life. Any other "Code" in block #26 tells both the Military, and many larger employers, your state veterans service office, and defense contractors, something negative about you. Example: "SFK" means you left because of disability. This lets every employer that knows the code that if they hire you, their health cost will likely go up and you may have more absences from work. Thus, you may get passed over for someone else. "BFS" "Good of the service, conduct triable by court marshal" If you just rolled your eyes at the wrong officer, an employer my assume you are a felon. Even if you where tried and ACQUITTED, or if charges or Article 15 was never brought against you! "BLC" - Homosexuality Enough said. There are even codes for "Bedwetting" "personality disorder" "drug use" "mental health problems" "financial problems" "malcontent".... the list goes on and on. Each and every negative thing the Military could possibly say about you is tied to a code number. If you annoyed your last commander, or left becouse of disability, you likely have one of the negative codes on your dd214. Some have even suggested that the VA uses these codes at their triage desks to determain how fast your C&P claim gets does or does not get processsed. You can learn more by going to www.vetcourtcodes.com or by googling for Army Regulation : AR 635-5-1