Unrebutted Medical Evidence

[Berta]

In responding to the VCAA letter I recently received I used citations of VA case law to make sure they handle it right.

Mariano V Principi which I cited- I mentioned here once before but believe it is worth repeating what this case is all about again.

If you have sent the VARO IMOs that are unrebutted by any so called VA expert- those opinions stand as probative medical evidence that prevent the VA from trying to find some other VA quack to knock down.

I have 3 unrebutted IMOs. A socalled VA expert had the chance to rebutt two of them and didnt.

I also have sent VA unrebutted lay medical opinions supported by medical treatises as well as the veteran's autopsy,ECHO and MRI.

http://www.va.gov/vetapp04/files/0404870.txt

In this decision the BVA refers to Mariano-thus:

"Additional development by the Veterans Benefits

Administration Appeals Management Center (VBA AMC) would only

serve to further delay resolution of the claim. Bernard,

supra. See also Mariano v. Principi, 17 Vet. App. 305, 312

(2003) cautioning against seeking additional medical opinion

where favorable evidence in the record is unrebutted."

The VA was trying to find a VA doc to rebutt already favorable medical evidence which is against all VA case law 101---

This is why my vet rep felt he would walk in to a DRO conference with my IMOs in 2005 and win-my evidence was that good-

But I think he took the IMOs from the c file, never made a copy, and they blew out a VARO window before he got to see the DRO-that was 2005 and I am re sending them again today with IMO # 3-they never have been addressed by the VA and I believe my POA lost them prior to the DRO conference.

I cited in my VCAA resonse MAriano V Principi and these reference to how this case involves claims as stated by the BVA within:

http://www.va.gov/vetapp04/files/0404870.txt

Also I cited and added this established VA fact of law-

veterans should not hesitate to send the VA lay evidence and also associate their evidence to standard medical treatises.

The law is clear that this evidence must be used to adjudicate claims properly.

Section 3.159 Part One

http://a257.g.akamaitech.net/7/257/2422/12.../38cfr3.159.htm

CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS

PART 3_ADJUDICATION--Table of Contents

Subpart A_Pension, Compensation, and Dependency and Indemnity

Compensation

"Sec. 3.159 Department of Veterans Affairs assistance in developing

claims.

(a) Definitions. For purposes of this section, the following

definitions apply:

(1) Competent medical evidence means evidence provided by a person

who is qualified through education, training, or experience to offer

medical diagnoses, statements, or opinions. Competent medical evidence

may also mean statements conveying sound medical principles found in

medical treatises. It would also include statements contained in

authoritative writings such as medical and scientific articles and

research reports or analyses.

(2) Competent lay evidence means any evidence not requiring that the

proponent have specialized education, training, or experience. Lay

evidence is competent if it is provided by a person who has knowledge of

facts or circumstances and conveys matters that can be observed and

described by a lay person."

It is often imperative to remind VA that you want full compliance with ALL pertinent VA case law and to send the regs themselves or insert via a scanner into the claim and any othr responses -the specific regs that support your claims.

[sjh4951]

Hi,

I submitted good letters (6 + 1 that the oncologist sent on his own)from my late husband's doctors who were all extremely qualified in their field. However, none of

the letters were backed up with any scientific evidence and the VA examiner did site a study done regarding my husbands cancer, so I was denied for DIC based

on the one letter from a VA doctor who never even saw my late husband. Where is the benefit of the doubt??

[Berta]

The VA sure loves to mess around with widows claims.

Then again Agent Orange vets have a widow to thank (and NVLSP) for the Nehmer decision.

Did you receive a VCAA letter that told you exactly what evidence the VA needed to award?

In order to comply with the VCAA in most DIC claims the VA often has to suggest that the widow get independent medical opinion and then by virtue of their recipt of the VCAA election notice, signed and sent back to them by the widow-they have to address all of the evidence that the VCAA letter told the widow to get.

Also this is why it is imperative for a IMO doctor to follow the criteria for preparation of an IMO to the letter-

Dr. BAsh knows VA case law and one os many issues he raised as to a "medically inaccurate" SSOC I got that contained a VA socalled "expert''s opinion on my claim was the fact that the VA doctor had not supplied any medical rationale or any established medical literature to support her opinion.

Dr. Bash references 3 or 4 medical texts-such as Braunwald right in his IMOs for my claim.

It seems that this is the basis for their denial of DIC- in your case-

because they found the VA doctor had cited a medical reference text or treatise and your IMO doctors didnt.

I hope you are preparing a NOD on this decision and I suggest reading , under the search feature here "Getting an Independent medical opinion" as it shows what a IMO MUST comply with -otherwise the VA will refute it as they did in your case.

It would pay to also contact these doctors with the IMO criteria to show them what they need to do in order for VA to consider their opinions adequately.

I assessed considerable medical treatises and texts in order to support my claim and sent this along with Dr. BAsh's IMOs to support that my husband's condition at death was directly due to diabetes from his Agent Orange exposure.

It would help if you found ample treatises yourself and then gave them to these IMO doctors so they could incorporate them into their IMOs or -as in Dr. Bash's case- he had access to medical texts that you have to pay for access to on the net and his references were the cream of the crop as far as cardiological literature goes.

If you paid for these IMOs (mine cost 4,000) you have every right to make sure these doctors comply with the criteria that VA will accept on IMOs.

Was your husband an incountry Vietnam vet or served in waters offshore Vietnam during the Vietnam War? Or was he at the DMZ during the Korean War? The units of Korean War vets exposed to Agent Orange can be found here under a search also.

If so was his cancer (I assume he had cancer? a Soft Tissue Sarcoma?

This would render him as an Agent Orange veteran.

Otherwise the IMO would have to establish a clear nexus for his cancer to his service.

If the medical treatise that VA doc used was the sole basis for denial- it seems to me that the claim for DIC is strong but must overcome that issue.

I would suggest getting the IMOs docs to use more than one medical treatise to support your position.

Edited September 11, 2007 by Berta

[cloudcroft]

sjh4951,

I'm no expert but this is how I see things (and part of this post is an FYI addressed to vets in general who are beginning the claims process)...

Most vets misunderstand the VA's "Benefit of Doubt" doctrine. In common usage as a layperson would understand it, you'd think this concept would apply in lots of situations where the vet seems to have a good case, but IIRC, the VA uses it differently: The Benefit of Doubt (BoD) is ONLY applied to a claims case that is in a state of equipoise.

In YOUR case, since the VARO denied you, I have to assume that the preponderance of the evidence must have been against you - at least that's what the VARO decided -- so the BoD doctrine does not apply.

Had you won, the preponderance of the evidence must have been for you. Again, the BoD does not apply (it's actualy rendered moot).

If the VARO determined that the evidence FOR and AGAINST you was pretty much equal -- with no clear tilting one way or the other -- then a state of equipoise exists and the VARO would have to apply the BoD doctrine and grant your claim. This is the only situation BoD is applied.

I tell people that they have 2 out of 3 chances to win their VA Disability claims:

1. The proponderance of the evidence is in your favor = a win.

2. The preponderance of the evidence is against you = a denial.

3. The evidence is in a state of equipoise, BoD is applied in favor of the veteran = a win.

So in theory, at least the way I see it, vets have a 66% chance of winning a "well-grounded" claim, a 33% chance of losing. Good odds.

But sometimes, since the VARO often does not "cooperate," you have to go all the way to the BVA for a outright win (the BVA determines a preponderance of the evidence is in your favor), or, the BVA sees that a case is in equipoise and it applies the BoD which is also a win. Or, of course, they can agree with VARO and deny you, but that would mean the BVA believes that the preponderance of the evidence is against you. To fix this last situation, you'd need to come up with more and very persuasive evidence. Of course, another possibility is the BAV remands something back to VARO -- the BVA does a WHOLE LOT of remanding -- and often this is a win, too, even though it may take a bit longer because your case is back in the line at VARO....or sent the the AMC which may take even longer.

So what I'm saying is although WE use the term BoD in general and expect it to apply in most cases, the VA uses it to apply only in a specific situation.

Hopefully, you can convice the VARO your case shows the proponderance of the evidence in your favor -- which would be a outright win at the VARO level -- and your 6 doctor letters seem to be enough evidence to do the trick. Or at least, you can remind the VARO that if your case is in a state of equipoise then the BoD should be applied...which would also be a win for you at the VARO level. If not, you'll have to apeal it to the BVA and hope the BVA judge sees it your way. Again, you have 2 out of 3 chances to win at the BVA, maybe 3 out of 4 chances if you count a remand as a win. Still good odds.

But even if you add no more evidence and leave your doctors' letters written as they are, perhaps your letters will be convincing enough at the BVA level -- if you MUST to go that far -- to get a win for you, or at the very least a BVA remand back to VARO ordering them to take a new look at your doctor statements. But as Berta has already said, I would first be sure exactly why you were denied (the specific reasons) and see how you can address them...this is good advice and true in ALL cases where a vet is denied: You address the reasons why you were denied and if you do, that should then be a win (in theory). Also, if your doctor letters are lacking anything, perhaps they can be rewritten to comply with VA expectations -- again as Berta was talking about -- and maybe that will be all you need to convince VARO and get a win now...so you don't have to go over its head to the BVA and take another year or so to get a final decision.

As I said, I am no expert and Berta knows more about IMOs than I do (I never had to get one although I DID consider it during my 4-year claims battle), I was just talking about how "legalese" the VA is re: specific meaning/definitions and what they want from doctors, but you can be the same way and use "legalese" yourself against the VA and beat them at their own game.

So first look at the specific reasons you were denied -- where your case was weak, incomplete, unconvincing, or just lacking hard evidence -- then see how you can fill those holes and then send those "corrections" in with your NOD.

As for your IMOs, explain to the doctors you don't mean to be bothering them unnecessarily, but tell them how "anal" the VA is and that IMOs have to be done in a way that's acceptable (understandable) to the VA...so it's not like you're being bossy telling the doctor how to do his/her job, it's the VA telling the doctor how to do his/her job, i.e., YOU are not the bad guy here, you're just trying to be sure the doctors' opinions are written in such a way that the VA gives them full consideration. If the VARO STILL does not consider them properly, perhaps the BVA will.

One final thought: The VA seems to give more weight to a VA doctor's opinion over any civilian doctor's opinion (I think we can thank former President Eisenhower for this concept)...so IMOs are at a disadvantage from the get-go. So maybe your case is one of these. Still, I think well-written doctors' letters would AT LEAST put your case/evidence in a state of equipoise -- in balance with what the VA has to deny you -- if not outright win it for you.

Good luck,

-- John D.

Edited September 11, 2007 by cloudcroft

[tssnave]

Berta,

1. Thanks for the court case citation cautioning the VA against seeking additional medical opinion where favorable evidence in the record is unrebutted. My C&P was very favorable (however little the VA actually read it) and I have sent in an IMO from my shrink and supporting statements from my PCP with my NOD which, in essence, says the same thing the C&P Exam does. If the VA sends me to another C&P Exam after they get the favorabled shrink IMO and PCP statment then I will at least know what court case to cite when I ask them why it is necessary for another C&P exam.

2. Why would your advocate NOT put your IMOs in your file? That just doesn't make sense to me. If you said the VA lost them, well, that's one thing, but to have the folks who are supposed to be HELPING you tell you it's great evidence and then NOT put it in your claim makes no sense to me (and more work for them)? It is a scary thing for others to read that the very advocates we are using my be working against us.

3. Why don't you and Tbird do a pinned link for IMOs under Important Topics on what makes a suitable for rating IMO? I have read numerous times people asking you what the criteria is for an IMO and you usually refer them to the search engine on hadit. The problem with that is the search button on the top tool bar (*Help *Search *Members *Calendar *Gallery) won't let you search on acroynms and gives you an error message on "IMO" and when you use the search engine in the middle top part of the home page you get multiple hits and the links don't always work and if they do, you have to wade through a lot of back posts to find the information on IMOs you are looking for.

Since what makes a ratable IMO is such basic yet critical information that most of us at some time or another request from you, why don't you and Tbird make it a pinned link under Important Topics?

What do you think about pinning what it takes to make a ratable IMO as a separate Important Topic link?

As always, Berta, thanks for all the information you provide us on the forum. I appreciate your help.

Thanks,

TS

Edited September 11, 2007 by tssnave

[Torvald]

tssnave,

Yes, you're right - the Hadit.com search function won't work on 3-letter words/phrases such as "IMO", as it gives an error message unless you enter something that is at least 4 characters long.

[Berta]

Tbird did a lot of work to make the search feature at the top of the page- it says right there that this search feature works better then the other one.

I found the IMO topic in seconds-

Use this too if you want CUE information -type Clear and Unmistakable Error into this search feature and it all pops up or just put CUE, SMR, IMO whatever-and you will get what you need.

Edited September 12, 2007 by Berta