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brokensoldier244th
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Posts posted by brokensoldier244th
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No, nothing has changed. You can refuse an exam. They can schedule them, you refuse enough times then your claim goes to rating. If there is not enough credible evidence it gets denied. If there is, its granted. I'm not sure where you see that some shift in policy has occurred. Inadequate exams are defined in M21-1, also.
Raters, and the number of claims they have, rate, complete, or kick back, are all evaluated also. Its not just my decision or the rater's decision. Its not different than any other office where someone- bank lender, insurance determination, whatever operate. At some point someone makes a decision. Sometimes you aren't going to like that decision. If the examiners do not answer the ratings questions correctly or write something that is conflicting then yes, its going to get sent back. An insurance company would do the same thing. This is not unique to just the VA.
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The VA can't just say an exam is inadequate- favorability has nothing to do with it. An exam is inadequate if the doctor doesn't answer the questions, or doesn't answer them with rationale. That's it. Problem is that what veteran's sometimes think is adequate rationale isn't based on the ratings schedule, or in some cases is worded in such a way that its unclear if the doctor is saying its favorable or not. This goes for private C&Ps, too. OR the lay statements of the veteran, their doctor's nexus, don't align with what is in the existing VAMC treatment records or STRs, etc. Ive got records of my own where a doctor says something that sounds favorable in one paragraph, but in medical-ese it means the opposite. There are some online dictionaries around for medical terminology- skim through them when reading your records. It helps a lot.
I can usually spot these, where a doc somewhere else does an exam IMO having never seen the veteran or a bunch of stuff in the existing records and then writes up an opinion that isn't congruent with other evidence. This is why all you guys/gals need to download your VAMC medical from MyHealthVet or get them for a date-range from Release of records. That way your doctor isn't lying on the form at the top where it says "ive reviewed the veterans X,Y,Z records.
Ive sent claims to rating where the veteran refused exams that were still granted claims. So long as I can annotate enough existing evidence in the existing record I send it. I dont get too hung up on if it will get deferred back to me for needing an exam (lost accuracy points for me) because 1. I'm pretty good at arguing my case, I did this for myself and others for years before working at VA, and 2. because if its deferred for needing an exam the Rater has to cite why with a reference to M 21-1 which means that I learn something that I didnt know to apply to the next one.
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You can apply for it on a direct basis if you have documentation of your time there, proof of exposure (this shouldn't be a problem- its well known), and a doctor that can and will link the existing literature to your specific circumstances. Sending in WebMD about Camp Lejeune won't help much- we all know that stuff anyway. What we don't know, and can't presume, except for the legally known presumptions, is that YOUR ED/fertility is tied to Camp Lejeune and Trichloro, etc. That's where your doctors opinion comes in. They have to tie your condition to that potential occurrence (since you were presumed sound when you entered) and allso (very important here- lots of docs skip/skimp on this one) WHY they think they are tied together.
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I have had veteran's flat out refuse further examinations in writing or via phone- if I have that and they have no outstanding requests for other information (or they have waived that with a 5103 saying they have nothing to send ) then I send it to rating. I'm not going to continuously pursue action when the veteran is unwilling or unable to participate.
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Exams and general duty to assist is under 38CFR 3.159
CAS
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Submit a 5103 that says you have nothing more too send. Legally VA is required to do certain things- that is statutory and cant be waived by a 5103- that's only for you're evidence- but usually 2 federal requests or a received negative response "we don't have it...." from a federal records holder is enough to satisfy duty to assist.
If the doc didn't follow there instructions it's an inadequate exam. This is statutory, too, that's why there are standardized forms for it. 38CFR 3.326
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This is correct. While there are redactions and whatnot, VA does have access to, or the ability to, confirm certain military operations, etc. That being said, a DD214 is not uber top double pinky swear secret either, and much of the time either a combat MOS, or SF MOS shows up on the DD214, along with "remarks" entries RE: hazard pay or imminent danger pay authorized. We don't need to know the whole David Hackworth story breakdown for most things- an area of op, and a unit designator are usually sufficient for what we need. Since we can see awards we can verify combat service that way, too. "Personnel Actions" memos with awards, medal citations, etc, all show up in your OMPF, usually, too. I also see clearances all the time in the initial or renewals of SF86's so that gives me clues also.
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1 hour ago, Berta said:
This is very concerning:
" I just need to figure out how to do this myself rather than pay somebody money again for no results because they give me bad information. I had no problems going to my exam, but they strongly suggested I don't. "
Without a C & P exam, and even with a strong IMO/IME, the VA can and will often deny a claim,if a vet is a no show for their C & P exam.
Because there is no concept of Relative Equipoise they can apply.
In some cases such as recent VA medical records,submitted with the claim, some vets might not even need a C & exam but that does not happen often.
My exerience with two lousy posthumous C & P exams at VA was that my IMO doctor could easily knock down the C & P results ,with a full medical rationale .
When BVA ordered a third exam for that claim , a Cardio exam, I got a VA PA C & P exam- nothing wrong with Physician's Assistants but I knocked down those results myself, and sent my rebuttal directly to the BVa as the PA didnt have a clue on heart disease and BVA disregarded that exam as too speculative, and awarded.
Relative Equipoise ,in my case, meant that I had 3 IMos to support my claim, and had even ordered a 4th IMO and I paid for a real Cardio exam, so the BVA wanted 3 VA exams- 3 for and 3 against-and they awarded . The forensic cardio doc had not even prepared that IMO yet so the company refunded about half of the fee I paid.
Relative Equipoise ( evidence equally for and equally against the claim) is what gives us the Benefit of Doubt, as explained on page 8 of this CAVC decision:
https://efiling.uscourts.cavc.gov/cmecf/servlet/TransportRoom?servlet=ShowDoc/01207459408
and discussed here multiple times under our search feature.
I sure wonder who charged you $ for bad advice and if they have any legal standing to even have been your POA. But best not to mention 'who' here.
Many of us have gotten piss poor advice from so-called vet reps, etc.
My BVA decision concludes with this statement:
"Based on this evidence, the Board finds that the weight of
the evidence is in relative equipoise exists in this case.
Resolving reasonable doubt in the appellant's favor, the
Board finds that the criteria for service connection for the
cause of the Veteran's death have been met, and the service
connection for the cause of the Veteran's death is warranted.
38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. "I was disappointed that the BVA did not mention much of my considerable evidence in the decision, bcause it could have helped other widows/widowers, as I had studied all of mydead husand;s VA medical reords diligently and by then I had also studied Cardiology, Neurology and Endocrinology, and Dr Bash found my lay medical work was supported by the documented medical evidence,to include all VA blood chem reports,etc and even my non- medical evidence such as my husand's driver's license.
This is very much the case. While its not an automatic denial, unless there is something to potentially rebut a negative opinion from an examiner the rater has nothing to go with except your prior medical records that they have already seen (and the examiner, likely, as well, at least the parts relating to OSA). It hurts nothing to go to the C&P and still have your own doctor notes or treatment.
You aren't required to use VAMC at all if you don't want to just make sure you upload your medical notes to your Efile, or sign and return the 21-4142/21-4142a (you can send these in anytime before a rating finalization, and download them from VA.gov with a google search- make sure you use the most current form version-older forms sometimes have outdated language that makes them unusable, legally) that tell us you have private treatment and have the contact information and we'll request them ourselves.
Keep in mind not all doctors respond to us, though, and some doctors charge for printing records- which VA will no pay for- so its always best, if you can, to get them from your doctor on your own and upload the relevant parts. -
1 minute ago, allansc2005 said:
broncovet,
We still have to get the veteran's TDIU decision from 2017; as I mentioned earlier, her decision paperwork burned up in a fire.
We are going to a VSO today or Monday to see if we can get BOTH copies of her TDIU and her newest 100% SC decision.
She-veteran has at least 20 SC conditions listed as of now, but which ones were used for TDIU, we don't know at this point.
She has a wide hodgepodge of SC conditions ranging from spinal problems, bladder problems, hearing, knees, shoulders...
In our math, which we all know the VA doesn't use, her total combined SC conditions add up to 240%.
Allan 2-2-0 HOOAH!
I really don't like this asdumption, as if VA invented a numbering system. The rating table used is similar to that used in other disability findings like insurance and short/long term disability. There is no "240%" disability. It's a functional impossibility, and serves no purpose other than veterans comparing who's "more disabled". /Mini rant off
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Depends,
If you after applying for housebound it's 21-2680 (for SMC-S. This should be usually inferred at rating if the language is already in your notes " Homebound, can't leave house, agorophobia, severe anxiety with loss of function in major areas..." These are not specific wordings, just examples of some that I've seen. It gets missed sometimes butt make sure you Merry three criteria first based on your rating and it Dbq exams results and findings.
For the others that are for things like missing limbs and lack of function of major organs (blindness, amputations, TBI) they are usually inferred.
For smaller stuff like ED (Men), gyno issues, and other things that don't fit into another category you can file a regular claim form asking for SMC-K which is " loss of function of a creative organ". It's worth about 110 a month.
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Its got to do with how they are scanned in, I think. sometimes they are scanned in as documents, other times they are images of pages converted again to PDF. I think those are the ones that CTRLF barfs on.
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No, usually when you apply for IU you list the worst of them that are causing the difficulty.
- allansc2005 and Rivet62
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If she's scheduler than she's not TDIU anymore- or shouldn't be, usually. When it happened to me as part of the same rating action I was "TDIU for several months of the eventual time period, then within the same decision they then increased it to 100 sched from a later date. The decision letter said in it somewhere that TDIU was moot since I was 100% already.
The SMCs aren't automatic just with 100%, you still have to meet the other criteria.
A vso can get the past decision letters- they can just print them off of their access to VBMS.
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Veterans service rep- we build the claims off the evidence you send in, evaluate it and mark it up where we can find that the contention meets up with the medical documentation, request the exams, and make sure everything is as of record as it can be after the opinion from the examiner comes back before sending to rating.
Don’t know shoot 12- vsr’s cap at 10, I think unless you become a rater or rotate out into training or supervising. I’m a mentor for new vsr’s right now- more work, no increase in pay- you know, the usual.
I’d rather be redesigning their remote training and required yearly retraining. Some of it looks godawful. Like Windows, 1997.
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8 minutes ago, Rivet62 said:
If I ever arrived at 100% P&T I would use my bachelors, somehow, maybe at a VAMC in something
Well, thats what I did, eventually. Bachelors in IT, Masters in Ed/Distance learning, working on another MS now. Currently plodding away as a GS9, almost 10. For VSRs a Bachelor's in 'something' is pretty much a pre-requisite.
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Well, maybe GS10's or 11's. GS9s are rare enough that their work is reviewed by someone higher up anyway, at least in my RO- I recently applied for 1 open GS9 RVSR position. It was the first one they had had in at least 5 yrs, and I was told up front that if I was chosen I would be a full RVSR but my ratings would be subject to more scrutiny. GS5's barely have a Bachelor's degree are not anywhere close to being a VSR unless they are coming in from somewhere else with considerable federal service already behind them.
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GS5's, GS7's and even many GS11's don't go near signing retros like that- they never have. Its completely outside their responsibility. You can't even become a rater until you are at least GS10 about 90% of the time- that 10% is only authorized at GS9 if there is an extreme need and usually its approved only if they already have someone in mind at the GS9 level as a VSR that especially on top of things.
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Your doctor provided no rationale to support his contention other than saying "im a board certified sleep guy....". The examiner that wrote your original exam laid out exactly why, in his opinion, the two were not connected. Your IMO did not address any of that. The IMO needed to address those points and rebutt them with citations to evidence to the contrary.
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Its a production/quality error if we don't gather everything we can find- at the time- if our claim(s) that get worked get scooped up by QMS they go through it with a comb- they do the raters, too. They only do so many per each of us a month though. There is no way they could get all of them. There are things continuously coming in, though. Thats why we send out those 5103s with the checkbox at the bottom that says "im done sending stuff in....". Otherwise at some point after exams are completed and opinions returned, we check VAMC one more time and download/upload that, and send to rating. We can't keep them open forever.
Anyway- if we don't locate or get a negative response from federal records holders- whether NPRC, VAMC, individual reserve/guard units, MTFs- its a duty to assist error on our part and 1 we lose a shit ton of production points, and 2 we have to correct it- it comes back to US (me, for example) with the regs attached and comments that vary from helpful to "fix it".
The newer stuff IS electronic and comes to us that way, just in a piss poor organization, usually, whether its the Services, NPRC, or whatever you uploaded last week. Thats why I always tell 'you guys' to put a brief table of contents or summary, and page numbers, or, that AND highlight or underline the salient points you want us to see. I use CTRL-F a lot on PDFs but not all of them scan in readable like that so I have to eyeball hundreds of pages. That's my job, don't weep for me. BUT if you page number or underline or highlight the high points I can find them a heck of a lot faster when im mouse spinning that scroll wheel. I used to do my claims like mini research papers- brief TOC or abstract on the first page, a statement of what I was contending, and page numbers, or dates, or whatever. I could see my VAMC stuff online (I got out in 2002) and I hand carried my military STRs out on a thumbdrive- spent about 3 pass weekends scanning or printing, and a lot of burger king money on a couple of the record clerks at Kenner clinic LOL. I know that isn't possible with a lot of you older guys.
But you YOUNG guys.....well.......Hear, heed, tell your friends that are still in. Thumbdrives are cheap and most everyone has a laptop. Make a friend or 4 in in S1 and Release of Info. It will make their lives a lot easier. Take advantage of IDES and get all that crap done Before and While you medboard or ETS.
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There may be a time lag but also, the system, if you don't title your documents when you save them before uploading just assigns a default "correspondence" label. That can mean anything- random updates from examiner facilities trying to schedule you, 4192s returned from employers, STRs that aren't labeled correctly when sent by the services (sometimes they send a giant PDF- I like those, others, however, scan each page and upload it......WTF?) - all sorts of stuff. It's also not in any order except by date received when the system puts it into your Efolder. We (VSRs) change the dates on claims (back date them to the postage date- if we can read it on the scanned envelope) to make sure they coincide with when they came in, not when the system processed them because it may be a few days between when its received at Janesville and when its actually scanned in.
also, Ive requested service records and even STRs more than once on a veteran that comes over my desk that ive worked on before, even if its a subsequent claim- because ive found that DPRIS records (your 201 file, basically) magically updates and I find new stuff in there that wasn't there before. Same with STR's. With VAMC I just download the whole mess from whatever the last date was that it was downloaded and then convert it to PDF and label it with the VAMC and date range. Not every VSR does it this way. It really sucks when someone downloads a hundred pages of VAMC records into your file and then just labels it "clinical records" with no date range, or indication of what VAMC it came from- because some of you have several.
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You can access your unit records the same way we do- request them from the National archives or DPRIS. Personnel records are supposed to be sent automatically from the services, that doesn’t always happen and I have to request it again. You can also request them from
https://milconnect.dmdc.osd.mil/milconnect/ after you log in, then look under your correspondence. You can request them from DPRIS.
as for the rest, I don’t know what VSOs are and aren’t supposed to do our show you That’s their job to know that. If they want to show you then so be it.
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Yes. Don't get too hung up on whether its primary or secondary.
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I'm sorry that your appeal is held up. It helps to know that the private side is as backed up as we are- not because of animosity to you or any glee in the process taking longer, but it allows me background knowledge of the process happening outside in the wild, as it were. I don't file my own claims anymore- 1. I can't, and 2. I'm done anyway. But, I did use Ebenefits for about 15 yrs when I did, from 2002- 2017 so Im well aware of its shortcomings.
I don't work appeals, and I rarely, if ever, hear from POA's, etc, so information like yours and what was posted earlier about what POA's see on their end is immensely helpful to me. I also do some application testing on things like VA.gov and Ebenefits when solicitation for volunteers is put out, and stuff like this is helpful for me to pass on to the application people.
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? Can a veteran refuse the duty to assist.
in VA Disability Claims Research
Posted
The reason for the denial is clearly stated in the denial letter. If there isn't enough evidence and then the veteran doesn't go to the exam, it says that. (?) That's why its generally in the best interest of the veteran to go.
If you have had 9 exams for the same condition- have you asked "why?" The notes in VBMS would likely say something about that and the reasoning. Your VSO can look it up, and the phone people can see the notes portion, though they cannot see the entire claim. Without knowing why they have sent you 9 times I have no idea. Ive not seen that many before.