tdiu Question About C&p Doctor's Inaccurate Report

[Tayi]

Hi, I'm new here, and I want to apologize if this has been addressed somewhere already- I searched but couldn't find anything.

I have a problem that I hope someone here may know what to do about.

A little background history: I served in the Army from 2003 to 2005 when I was medically discharged for a chronic pain syndrome. I applied for disability and was found 40% disabled for fibromyalgia (which if you don't know is a pain thing like arthritis, only not in your bones, it's in your muscles and ligaments). I also have 30% for depression and 10% for GERD/IBS. Earlier this year, I worked with VA Voc Rehab to try to get a job, and they found that I was not employable because of my health. After they gave up on me, I went to Oregon State Voc Rehab, and they tried some different things, but in the end they also concluded that I was not employable because of my health and reccommended that I apply for Social Security. I applied for SSDI and at the same time I applied for Individual Unemployability because of my fibromyalgia.

I had my C & P exams in the middle of September, and I got my decision really quickly, about a week ago. I wasn't even able to get a copy of the exam results until today. The VA decided that not only was my fibromyalgia not so disabling that I can't be employed, they reduced my disability percentage from 40% to 20% based on the C & P doctor's report. I kind of freaked out when I read that, but I freaked out even more today when I read what the doctor had actually written.

In several key areas, this doctor recorded things about my condition that are completely false. I don't want to say he was lying; he seemed like a nice man; but this record says that I said things that I never said, and says that I didn't say things that I did say.

For example, he wrote that I reported no pain in my lower extremities. What I actually told him? The pain in my lower extremities is so severe that it limits me from standing or walking, and I get stabbing nerve-damage-pain down my legs to my feet at random (frequent) intervals.

He wrote that I reported no incapacitating eposides because of pain symptoms in my lower back/ lumbar spine area. What I actually reported was that I went through a month long work trial program with the State of Oregon Voc Rehab and every single day the pain in my back was so bad that it prevented me from performing either some or all of the tasks I was supposed to do, including 4-5 days (in a single month) when I couldn't even get out of bed.

He listed a bunch of tender points that I supposedly reported didn't hurt (fibromyalgia is diagnosed by the presence of pain at 18 specific tender points all over the body). I reported that they did hurt. He wrote that my symptoms are intermittent and occasional; it's been four straight years now that I've been in pain without a single break. It goes on; I would say maybe 75% of his report is completely false. It's like he examined an entirely different person.

What do I do now? Is my only option to appeal? Do I just send in a letter that says, "I appeal," and wait for another exam and hope that this time the doctor doesn't lie about me on paper? Should I try to hunt down opinions from other doctors that say that I do in fact have pretty severe symptoms, and try to put to together a whole case proving my side of the story? Would they even read it if I did? As far as this doctor engaging in what I think is fairly unethical behavior, is there some process whereby I can alert the VA so more people don't have to deal with this guy? Is there some way to get, I don't know, an addendum added to my medical records that says that I vehemently disagree with his statements?

Thanks for any advice you have, I really appreciate it.

Tayi

[tssnave]

Tayi,

Hang in there. The members of hadit will give you some great advice on this situation. I'll let those with more experience guide you on this but I saw you were still online and remembered how I felt when I made my first post and sat staring the the computer wondering if anyone would actually read it and reply to it so I wanted to give you some reassurance in case you needed any (if not, ignore me).

Your story, and others like it, are the reason I think we should be allowed to have tape recorders in C&P exams (you can't but some vets have taken spouses into exams but from what I've gathered that's a 50/50 chance if they'll let you bring a spouse in with you but at least if you did the spouse could write a statement in support of your claim about what she heard). Also, I'd love for vets to be able to play a recording and attach it to their claims of their exams with docs who don't speak English well enough to be understood.

Again, hang in there. The VA is an administrative tiger but from other posts here you'll see that eventually it can very often be tamed by playing by their rules and more importantly, making THEM play by their rules.

Good luck and keep us posted,

TS Snave

[Ricky]

Tayi - a few things you need to do.

First can you tell us what the rating decision said was the reason for the denial of the I/U and then why the rating was decreased?

Second - file a notice of disagreement (NOD). In the NOD tell them why you disagree with their decision. You will need to attack the reasons provided in the rating decision along with the fact that you received an inadequate C/P exam (if this was the case) This should be done as soon as possible, however, you really need to contact a service organization such as DAV, AL etc........

Second - gather your previous medical evidence. Go see a doctor that has or is treating you currently. Explain the situation to him and see if he is willing to write you an independent medical opinion (IMO). In the IMO he needs to fully identify the level of disability you have from the Fibro. Make sure he covers all of the pressure points. Have him include a statement that in his opinion he feels that you are not employable. Take this along with anyother medical evidence you have the evidence from your failed attempts at rehad and send it in to support your NOD.

Now go see the patient rep at your VAMC and file a complaint against the doctor that did the C/P exam and demand that another exam be done by a different examiner.

Hang around on Hadit and we will see if you can help you. By the way welcome to Hadit and thank you for your service.

PS - hows the SSDI claim coming? Also you said you were medically discharged - did it result in a disability determination by your service?

Edited October 25, 2007 by Ricky

[Pete53]

Taya:

Welcome to Hadit. Well you know the reason now that we recommend that you take a loved one with you to C&P Exams. They are not as likely to try that BS if there is a witness.

If I were in your shoes I think the first thing I would do is file a formal complaint against the Doctor and ask for another C&P. I would also appeal and proposed reduction.

I would get copies of all my medical records and ask for complete copies of your Voc Rehab File. They have their own files.

If I could afford it I would look into getting an Outside Medical Opinion. I suspect that you should learn how Social Security is viewing your claim in under 4 ot 6 months from filing if you filled out all your paperwork.

I would submit to Social Security Copies of the VA Voc Rehab that says that you are unemployable and forward the same copies to the VARO.

Good Luck

There is help here on Hadit and don't get discouraged and give up cause you earned the benefits by your Service.

[Tayi]

Pete53, Ricky, TSSnave, thank you for your replies. I'll see if I can answer some of the questions that you asked.

The reason my decision papers gave for denying IU was: "Although the evidence of record shows that your service-connected disabilities affect your employability, you fail to meet the schedular requirements. You do not have a single disability ratable at 60 percent or a combined rating of 70 percent with one of your disabilities being independently ratable at 40 percent. Therefore, we have denied entitlement to IU benefits." I don't have a disability independently ratable at 40 percent because they lowered my fibromyalgia rating from 40% to 20% based on the false statements reported by the C&P doctor.

I thought about contacting a veterans' advocate or something, but I wasn't sure that would be very helpful. I first filed my claim through a veterans' advocate and all the guy did was type up the documents instead of handwrite them, have me sign them, and then fax them instead of mail them. It didn't seem to be all that useful. Maybe in a more complicated situation like this, they would be able to help though? I don't know.

I'm actually working on getting in to see another doctor to try to get some sort of paper record to refute this guy, but I just moved from the west coast to St Louis, and getting into the system has been a huge hassle. I do have an appointment with a rheumatologist in about a month, so I'll see if I can work with that. The thing is, though, I've seen several doctors previously, within the VA system, and my records with them supported my claim when I first filed it. I made sure the VA had all my Voc Rehab records too, and it even looks like they looked at them. I mean, they admitted that my record shows that my service connected disabilities prevent me from working. They just admitted it, and then refused me IU.

As far as Social Security, they have all my Voc Rehab records and my VA medical records, and I had an exam with one of their doctors. They've been working on it about 4 months now, so I don't really expect to hear from them soon. Plus I've heard that they don't like to approve fibromyalgia claims, so I'm trying not to get my hopes up for a favorable decision.

Thanks so much for the suggestions y'all have given, I really appreciate it. Looks like I need to do some searching on NODs and appeals.

[jessejames]

The VA NEVER quotes or uses Part B in 4:B of CFR 38 4.16, It is just as applicable as Part A!!

§ 4.16 Total disability ratings for compensation based on unemployability of the individual.(It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.

[Berta]

"Earlier this year, I worked with VA Voc Rehab to try to get a job, and they found that I was not employable because of my health. After they gave up on me, I went to Oregon State Voc Rehab, and they tried some different things, but in the end they also concluded that I was not employable because of my health and reccommended that I apply for Social Security. I applied for SSDI and at the same time I applied for Individual Unemployability because of my fibromyalgia"

If Voc Rehab or the state Rehab stated that your service connected disabilities prevented you from being rehabable -that means your SC disabilities render you unemployable.

"The VA decided that not only was my fibromyalgia not so disabling that I can't be employed, they reduced my disability percentage from 40% to 20% based on the C & P doctor's report. I kind of freaked out when I read that, but I freaked out even more today when I read what the doctor had actually written.

In several key areas, this doctor recorded things about my condition that are completely false. I don't want to say he was lying; he seemed like a nice man; but this record says that I said things that I never said, and says that I didn't say things that I did say."

There is a C & P doc here in New York who is so old he cannot tell right from left-and vets and even their vet reps have complained abut him for lousy C & Ps.

You must act on the proposed reduction ASAP and also tell them how deficient this exam was.

I suggest you get a real doctor with full expertise in fibromyglia to opine on your claim- The IMO doctor has to follow a specifc criteria and it is here under the search feature "Getting an Independent Medical Opinion".

I seem to advise doing that more and more these days because a vet can end up getting no where if they expect a C & P doctor in a 15 minute exam to even come close to providing a proper C & P.

IMOs can be very costly-but a strong medical opinion from a real doctor can help a help considerably and the cost is absorbed by any eventual compensation.

"Should I try to hunt down opinions from other doctors that say that I do in fact have pretty severe symptoms, and try to put to together a whole case proving my side of the story? "

If the SSA awards you-that too should help your VA claim.

There are many doctors who do IMOS- I always recommend Dr. Craig C. Bash-but Medopinions has a list of specialists too.

They are well worth the money in my opinion- in your case -I dont think they would need your SMRs-as you have established service connection-

a paid IMO doctor takes a lot more time reading ones complete medical records than a C & P doctor could do.

Have you formally applied for TDIU?

I also think you sure should try to get a good service officer or vet rep to help with all this-

make sure you respond to the proposed reduction ASAP and attach copies to this NOD to VA- anything that supports that they are wrong about the rating they have proposed and state how the C & P was a faulty exam.

Edited October 25, 2007 by Berta