Accordingly, The Case Is Remanded

[lu12]

1. Schedule the veteran for a va ortho examination for the purpose of ascertaining the etiology of his cervical and psychiatric disorders. the claim file most be available to and be reviewed by the examiner in conjunction with the examination. The examiner report should indicate that the claim folder has been reviewed, and that the examiner has taken into account the private and va medical records of prior treatment referable to neck pain including Radioculopathy to the upper extremities and psychiatric disorders.

Base upon a review of the historical records and medical principles, the examiner should provide an opinion as to whether there is a 50% or greater probability that the veteran's cervical spine and psychiatric disorders are related to either his period of active service, or to his service connected disability.

The examiner should specifically address and reconcile this opinion with the various opinions of the record finding that the veteran's cervical and psychiatric disorders are related to his low back disability and the injuries he sustained in service.

If the examiner feels tat the requested opinion cannot be given without resort to speculation, the examiner should so state. :P

I will appreciate any comment on the last portion of this statement from the BVA :P

lu12

[Rockhound]

This is my own opinion and may not have any backing by any regulation or law, But I feel that such directed statements like that last one, makes me feel like they are directing the C&P Examiner to say just that. directing him to say that his opinion would be pure speculation and not supported by anything he could see or find on tests or from examination.

It reminds me to much of the C&P instructions that I got for my psych evaluation that put a personality disorder on me and I'm still fighting against that directed opinion.

Rockhound

[jbasser]

Lul2, in this case you may want to go to the VA where you had the C&P exam and get a copy to actually see what the Doctor said. If the Doctor did not follow the instructions per the clinicians guide listed on the VA website then the BVA has to request the Doctor to make one. If the Doctor feels like he cannot do so, he needs to state that he cant. Then then may send you to another doctor to get an opinion.

The doctor should write the probability statement. If the DOc writes at least as likely, 50/50, more than likely, abover 50 persent, was due to, (100 percent sure).

Less than likely, not as likely and most lokely not are the negative ones.

The Title 38 under evidence lists Nexus. For example, The veteran has a cervical spine injury most likely caused by the way he supports his neck because the shoulder is elevated, or the veteran has a back injury due to the posture used to support his neck placed pressure and assisted in the deformation of the vertabrate.

That is the way it is supposed to be done. Rockhound was also correct when he said they directed opinions.It is like an attorney leading a witness. They tried to direct 2 on me at a C&P exam but the Doctor told them them they were wrong. One way to fight a directed opinion is to say using the direction tatic means the RO is trying to seek a diagnosis in their favor as if they were making the diagnosis. These little tricks are used quite often.

Good Luck

Edited January 11, 2008 by jbasser

[lu12]

Rockhound

What I take from this statement is just a clear and simple action from the BVA this is not justice neither a fair practice seems to me this is injurious, prejudiced and discriminating - then again what about VA own rules and regulations?

And like Berta said and wrote:

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.

"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."

Evaluation of evidence.

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

"b. Review of Evidence. Concisely cite and evaluate all evidence that is relevant and necessary to the determination. Rating decisions must evaluate all the evidence, including oral testimony given under oath and certified statements submitted by claimants, and must clearly explain why that evidence is found to be persuasive or unpersuasive. Decisions must address all pertinent evidence and all of the claimant's contentions. " end of cite"

Rockhound, I have already fulfill the VA request and regulations.

1. various - imo

2. various - ime nexus opinions

3. evidence of (S&S) during service and with in the 12 mo. presumptive period.

what about:

"reasonable doubt"

"approximate balance of positive and negative evidence"

"equally" for and against the vet under Relative Equipoise (the Benefit of Doubt Doctrine).

I am really Exhausted,

lu12

Edited January 11, 2008 by lu12

[lu12]

lul in this case you may want to go to the VA where you had the C&P exam and get a copy to actually see what the Doctor said. If the Doctor did not follow the instructions per the clinicians guide listed on the VA website then the BVA has to request the Doctor to make one. If the Doctor feels like he cannot do so, he needs to state that he cant. Then then may send you to another doctor to get an opinion.

The doctor should write the probability statement. If the DOc writes at least as likely, 50/50, more than likely, abover 50 persent, was due to, (100 percent sure).

Less than likely, not as likely and most lokely not are the negative ones.

The Title 38 under evidence lists Nexus. For example, The veteran has a cervical spine injury most likely caused by the way he supports his neck because the shoulder is elevated, or the veteran has a back injury due to the posture used to support his neck placed pressure and assisted in the deformation of the vertabrate.

That is the way it is supposed to be done.

Good Luck

JBASSER,

I agree, and thank you for your response, but I'm going to have to wait until c&p finished their business and that include wait some more time till my c-file is return back to the AMC, Washington, C&P will not surrender any inf. until the AMC comes with a decision.

Lu12

[Berta]

"reasonable doubt"

"approximate balance of positive and negative evidence"

"equally" for and against the vet under Relative Equipoise (the Benefit of Doubt Doctrine).

Every law reg and law says this is what we all are to expect and get-

the reality of the VA is that this is not always the case-

as I always keep in mind-

VA owes those scales-and when Blind Justice tries to weigh our evidence against theirs - sometimes the VA kicks her in the knee)

Often the only way to get fair and equal consideration of our evidence is to send them a favorable IMO.

If a vet has a lousy C & P result- a good IMO can put the claim into relative equipoise.

I would sure raise these issues to VA-even though they know all the regs-I think it pays when a vet rattles off VA case law and 38, M21-1 right back at them.

[lu12]

"reasonable doubt"

"approximate balance of positive and negative evidence"

"equally" for and against the vet under Relative Equipoise (the Benefit of Doubt Doctrine).

Berta, what are your soughs or what do you think about the remanded statement copied below.

If the examiner feels tat the requested opinion cannot be given without resort to speculation, the examiner should so state.

I will appreciate any comment on the last portion of this statement from the BVA :P

Edited January 11, 2008 by lu12