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Interesting Cavc Decision On Faulty Exams


Guest Berta

Question

"After a review of the record, the Court holds that the Board has committed prejudicial error in its decision by relying on an examination that was inadequate with regard to assessing Mr. Hernandez-Garcia's entitlement to a higher rating for SMC and failing to provide an adequate statement of reasons or bases for its decision. Green, supra; see generally 38 U.S.C. 7261(B)(2); Conway v. Principi, 353 F.3d 1369"

http://webisys.vetapp.gov/isysquery/irl158/77/doc

They remanded this claim this past October. It is just awful what this vet went through-

Mr. Hernandez-Garcia argued in his Substantive Appeal, and again in a statement submitted to the Board in April 2002, that it was error for the RO to rely upon the 2001 VA medical examination to deny his claim because the examiner erroneously found that his hand disabilities were related to diabetes. R. at 792, 839. He advised VA that he did not suffer from diabetes and that that finding by the 2001 VA examiner was erroneous. Id. Specifically, the 2001 VA examiner stated: "There is a surgery evaluation dated [August 18, 1999,] on [VA medical records] which mentions this veteran has a history of diabetes mellitus type II"; the examiner then concluded that Mr. Hernandez-Garcia's hand disabilities were caused by his diabetes and not his service-connected arm conditions. R. at 780-81. The record on appeal contains neither an August 18, 1999, surgery evaluation noting diabetes nor any other medical evidence that was

before the examiner in 2001 that diagnosed Mr. Hernandez-Garcia as having diabetes. See R. at 1- 860. Inexplicably, the Board ignored this issue and did not address his complaints that the VA medical examination was based on an inaccurate factual premise except to simply state: " Parenthetically, the Board also notes that [Mr. Hernandez-Garcia] disputes the recent VA examiner's characterization that his symptoms were due to diabetic neuropathy . . . regardless [of] whether the neuropathy is caused by diabetes or otherwise, the Board's focus in on whether he can move his hands to achieve functional use." R. at 4. Indeed, the Court has held that medical opinions based upon inaccurate factual premises are entitled no probative weight. See Reonal v. Brown, 5 Vet.App. 458, 461 (1993) ( medical opinion based upon an inaccurate factual premise has no probative value). Accordingly, the Board's statement of reasons or bases was inadequate to justify its reliance upon the 2001 VA medical examination when that etiology opinion was possibly based on an inaccurate factual premise. See 38 U.S.C. 7104(d)(1); Reonal and Gilbert, both supra. Further, the VA examination failed to address the degree of impairment caused by pain upon movement and how that pain affected the functional use of Mr. Hernandez-Garcia's hands, wrists, and fingers. See DeLuca, 8 Vet. App. at 206; 38 C.F.R. 4.45, 4.50. The 2001 VA examination reported that an evaluation of his hands for muscle strength, grasping ability, and range of motion could not be effectuated because there was "resistance." R. at 779. However, there is no discussion by the examiner regarding whether that "resistence" to examination and movement was because of pain or instead was a refusal to cooperate with the examination. See R. at 777- 79. Therefore, the Board erred by failing to consider, or at least discuss, how these regulations apply to the facts presented in this case and on its reliance upon the 2001 VA medical examination to deny the claim . See Deluca, supra. Moreover, the VA medical examinations relied upon by the Board to deny Mr. Hernandez-Garcia's claim were performed in February 2000 and January 2001. It is unlikely that these examinations could be considered contemporaneous two years later when the claim was denied. See Caffrey v. Brown, 6 Vet.App. 377, 381 (1994) (assessing contemporaneousness of medical diagnosis in terms of date of Board decision and concluding that medical examination conducted 23 months prior was not contemporaneous with Board decision). These factors diminish the probative weight that can be given to the VA medical examinations relied upon by the Board. See Green, supra.

In its statement of reasons or bases for its decision, the Board did not address certain evidence favorable to Mr. Hernandez-Garcia. The Board failed to discuss the 1998 and 1999 medical opinions by Drs. Negron, Lopez, and Enriquez referenced in the 2000 RO decision (R. at 764) and the May 2000 private physician's reports (R. at 774-75). Specifically, the record before the Board indicates that Dr. Enriquez reported that Mr. Hernandez- Garcia did not have effective functioning of grasping and manipulation with his hands and that he would be equally served with the use of a prosthetic device. Id. at 773-75. Dr. Lopez stated in his report that Mr. Hernandez- Garcia was unable to write or feed himself. R. at 738. Further, the February 2000 VA medical examination reported that Mr. Hernandez-Garcia required assistance from his wife to "perform activities of daily living and for needs of nature" and that "he has allegedly no functional use of his upper extremities." R. at 753. In addition, the Board failed to consider whether Mr. Hernandez- Garcia was entitled to SMC at the "n rate" under 38 U.S.C. 1114(n). Indeed, he is already service connected for "loss of use of both arms" and whether that loss of use was " at levels, or with complications, preventing natural elbow action with prostheses in place" entitling him to SMC at the "n rate" should have been considered and addressed by the Board. 38 U.S.C. 1114(n). Accordingly, the Board did not consider all "potentially applicable" provisions of law and regulation, analyze the probative value of certain evidence in Mr. Hernandez-Garcia's favor, and provide an adequate statement of reasons or bases for its rejection of that evidence. See 38 U.S.C. 7104(d)(1); Gabrielson, supra; Allday, 7 Vet.App. at 527; Schafrath, 1 Vet.App. at 593; Gilbert, 1 Vet.App. at 56-57.

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Berta,

You are a godsend to veterans and seem to be able to find things for veterans to help them that could be a big help in their claims. I know this information that you posted will be of great help to me in my husbands claims. Thank you for your time and help. It is greatly appreciated.

Again thank you,

Mssoup1

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  • HadIt.com Elder

Berta is the best

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what bothers me the most in this decision is how LONG it took!

Not only that but I was reading all 2005 CAVC decisions (only am about 1/4th through them) and 6 of the veterans had already died by the time CAVC got to their appeal!

Someone ( maybe mssoup) this AM said they might end up in a casket with a VARO denial plastered to their hand!

First I laughed because I feel that way too sometimes- but the reality is-

that vets ARE dying before their claims are awarded.

Another thing too- these C & P doctors- dont they also provide medical care?

I mean- didn't they at some point deal directly with patients in the VA clinics or the VAMCs?

If they cannot accurately assess a veteran for a C & P exam , how did they ever provide proper medical care in the past for veterans in any type of exam?

By the way- thank YOU all!

I never forget for a second that VA compensation is based on your sacrifice-and it is our grateful nation's debt-

the bad part is that much of this grateful nation doesn't have a clue what you all have to go through

to get it. It is an absolute disgrace.

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Berta

The C&P docs at my VA do not provide medical care. They work more like doctors for an insurance agency. The clinic and hospital docs are seperate. I filed a letter about the inaccuracy in my C&P exam and it seem that someone at the VARO did ask for a clarification. Now the problem is I cannot get a copy of the"Revised C&P". I went through the release of information dept. Not only is the update not there but the original is now missing or hidden. Any ideas on who has a copy or if this revised report even exist. My appeal time is half gone and I just got a letter from the VA saying they CANNOT locate a C&P exam. Any chance that the DRO just looked at my records? Some of the things in the statement of case just don't make since but I cannot get where they got it from. I do feel that the DRO actually looked at the file and made a good faith effort to do a proper rating unlike the first rater. The first one was so flawed. It was as if they sent me another vets claim and letter.

What is our recousre when something is just WORNG! Example my SOC states that I was awarded migranes from the date they first treated by the Neurologist in March 05. Well it is March 04 and I have the spinal tap records to prove it. My VA doc said he would mention the errors in my treatment records. How do you get the VARO DRO to look at these?

Still fighting til the END

SE

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Thank you Berta this is a Godsend I am working on appeal based on a flawed examination with lies and distortions.

Greetings,

I too am in the process of dealing with a C&P exam that was as well flawed with the same issues you have raised. I have sent the VA medical Center a copy of the final C&P report and highlighted the issues of the flawed C&P exam done by a power hungry NP. I have sence met with the person in charge of the C&P however a week later I received a basic form letter from the VA Medical Center director. That was not good enough. I shot back another letter stating that that response was not good enough and requested a face to face meeting with the him and the Chief of Staff.

I sent all copies to the VA RO to make sure they also knew the current sitiation. Do not rely on your service officer to be your advocate. They will tell you you can always appeal the C&P exam. Thats not good enough answer. I wanted to know why the VA has NP dealing with C&P exams in the first place. The NP are not doctors and have little or no expirence dealing with severe health issues. We are not going there for a cold.

I now understand why the VA claims are so backlogged, when the VA Medical Centers send NP to do a MD job what do they think will happen. There will be misdignoses for claims. Attitudes, and chips on there shoulders because they have been brainwashed they are doctors. They are not. Don't give up and do not allow the Medical Center to blow you off. With a C&P exam issue you must deal with the Medical Center that gave it to you. I hope this helps you.

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