C&p In My Favor, Still Denied.

[timetowinarace]

Taking the Awsome advice of my brilliant veteran peers, I requested and recieved a copy of my c-file. I had not known I could get copies of C&P exams so I had none. Well, my last C&P was for depression secondary to SC undiagnosed fatigue.

The examiner felt I had/have signifacant cognitive dissorder due to brain trauma in service. He diagnosed "rule out cognative disorder" and major depressive disorder secondary to cognative disorder. He gave me a GAF of 38.

Then he wrote that he has asked for neuropsych testing for a more quantative answer to losses and he would have to put an adendum on this report. The "rule out" part. He says in this report that if the tests do not show cognative loss then he would think more of a chronic fatigue would be apppropriate.

He says I am not employable. He says I must depend almost completly on my wife. He says I am not competent for VA purposes.

I was denied the claim because I had filed secondary to SC fatigue and the VA had not obtained records for head injury.

Are they not supposed to develope the claim? The neuropsych testing was never done to rule out cognative disorder. How could they decide the claim without all the evidence? Either way, I would have won the claim had it been developed. If the testing was done and showed cognitive dissorder, the examiner allready had shown a nexus to SC and secondary depression. All I needed was records wich I now have. If the testing had shown no cognative dissorder, the examiner allready pointed to chronic fatigue witch is allready SC and I had an open claim for increase. Either way I win. If they do the testing that is ordered and develope the claim as required by law. The only way to deny my claim is to decide it without the test results.

I have it all now. It's only a matter of time. It better be anyway. I've had enough of fighting with the pen. I'll be going back to what I know soon.

[Guest fla_viking]

Dear Fellow Veteran.

It is the law for the VA to obtain those records. Its concider a CUE for them not to. However if your at the RO level. These are the tricks they play until you get up to BVA. This is a good lession on gettting your C File and go to the exame with hard copys to give the examiner what it is your asking for. It looks like with this dirty trick from the RO. The RO has you marked for denial after denial. The courts have ruled so many times they have to get those records that its now just bad faith claims handling for them to do that to you now. I can promise you that unless you immeaditly appeal to the BVA. YOu are in for years more bad faith claims handleing from the RO.

Terry Higgins

[Jay Johnson]

Are you able to request a hearing with the DRO, or are you past that point? The RO can give you an endless run-around, but if you show up to the hearing and present your case in a factual way with hard evidence, you may be able to get things overturned at the RO level....the DRO can't play dumb (IE - claim they didn't "see" the evidence) if you present it to them in person.

[wallyg]

The basic rules for the conduct of C&Ps require that the examiner provide a diagnosis.

Those same rules also specify that it is NOT a valid diagnoses if the examiner cites "rule out ??? or rule out ***".

What you have my friend is a C&P that should have been returned by the RO as 'inadequate'. You should file a request for a new C&P, and at the same time, file a complaint of an inadequate examination, under the VA's own rules.

The alternative, is to let the decision become final, and then file a CUE, based on the RO NOT re-accomplishing an inadequate C&P. But, thank will take at least a year, before you can file.

This is from the VA's 2002 "Clinicians Guide".

1.12 Diagnoses do’s (also see diagnoses don’ts)

1. Definite diagnosis: Give a definite diagnosis or use the previously established diagnosis.

2. No Diagnosis found: If no diagnosis is found for any claimed condition, state this. For example, state “Lower back pain: There is insufficient evidence to warrant a diagnosis of an acute or chronic low back disorder or its residuals.” Explain in detail the reason why a diagnosis cannot be established for the condition claimed.

3. Diagnosis of Unknown Etiology: If a disability does exist but a definite diagnostic name cannot be given to it, state this. For example, state “Muscle strain of unknown etiology”. (See Gulf War Examination Worksheet concerning “undiagnosed illnesses” in Gulf War veterans.)

4. Support each diagnosis: Support each diagnosis with subjective (history) and objective (physical) data.

5. Effect on daily activities and work: Comment on the disability’s effect on the veteran’s daily activities and his ability to work.

1.13 Diagnoses don’ts (also see diagnoses do’s)

1. Non-committal diagnosis: Don’t use phrases such as “differential diagnosis” or “rule out”.

2. Symptoms or signs: Don’t use symptoms (pain) or signs (tenderness) for a diagnosis if a more exact diagnosis is known. If a disease appears to exist but an etiology cannot be determined, you may say, for example, “fatigue of unknown etiology”.

3. Opinion for further studies, evaluations, or laboratory tests: If further studies, evaluations or tests are necessary, perform them before making a final decision. Otherwise the examination is incomplete and will be returned as inadequate.

4. Change the previously established service connected diagnoses: Don’t change previously established diagnoses, unless you carefully explain the discrepancy and adequately substantiate the new diagnoses.

38 CFR

4.2 Interpretation of examination reports.

Different examiners, at different times, will not describe the same disability in the same language. Features of the disability which must have persisted unchanged may be overlooked or a change for the better or worse may not be accurately appreciated or described. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Each disability must be considered from the point of view of the veteran working or seeking work. If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.

[41 FR 11292, Mar. 18, 1976]

[Wings]

The basic rules for the conduct of C&Ps require that the examiner provide a diagnosis.

Those same rules also specify that it is NOT a valid diagnoses if the examiner cites "rule out ??? or rule out ***".

What you have my friend is a C&P that should have been returned by the RO as 'inadequate'. You should file a request for a new C&P, and at the same time, file a complaint of an inadequate examination, under the VA's own rules.

The alternative, is to let the decision become final, and then file a CUE, based on the RO NOT re-accomplishing an inadequate C&P. But, thank will take at least a year, before you can file.

This is from the VA's 2002 "Clinicians Guide".

1.12 Diagnoses do’s (also see diagnoses don’ts)

1. Definite diagnosis: Give a definite diagnosis or use the previously established diagnosis.

2. No Diagnosis found: If no diagnosis is found for any claimed condition, state this. For example, state “Lower back pain: There is insufficient evidence to warrant a diagnosis of an acute or chronic low back disorder or its residuals.” Explain in detail the reason why a diagnosis cannot be established for the condition claimed.

3. Diagnosis of Unknown Etiology: If a disability does exist but a definite diagnostic name cannot be given to it, state this. For example, state “Muscle strain of unknown etiology”. (See Gulf War Examination Worksheet concerning “undiagnosed illnesses” in Gulf War veterans.)

4. Support each diagnosis: Support each diagnosis with subjective (history) and objective (physical) data.

5. Effect on daily activities and work: Comment on the disability’s effect on the veteran’s daily activities and his ability to work.

1.13 Diagnoses don’ts (also see diagnoses do’s)

1. Non-committal diagnosis: Don’t use phrases such as “differential diagnosis” or “rule out”.

2. Symptoms or signs: Don’t use symptoms (pain) or signs (tenderness) for a diagnosis if a more exact diagnosis is known. If a disease appears to exist but an etiology cannot be determined, you may say, for example, “fatigue of unknown etiology”.

3. Opinion for further studies, evaluations, or laboratory tests: If further studies, evaluations or tests are necessary, perform them before making a final decision. Otherwise the examination is incomplete and will be returned as inadequate.

4. Change the previously established service connected diagnoses: Don’t change previously established diagnoses, unless you carefully explain the discrepancy and adequately substantiate the new diagnoses.

38 CFR

4.2 Interpretation of examination reports.

Different examiners, at different times, will not describe the same disability in the same language. Features of the disability which must have persisted unchanged may be overlooked or a change for the better or worse may not be accurately appreciated or described. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Each disability must be considered from the point of view of the veteran working or seeking work. If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.

[41 FR 11292, Mar. 18, 1976]

Wally, Good find! ~Wings

[timetowinarace]

It's true the exam was incomplete. The examiner stated in the report that it was incomplete. He did order testing. But if this testing was done, it would prove either of my two claims, no matter the results.

I don't know who canceled the testing but it was never done. If the RO read the C&P (desision was quoted from it) it was known at the time of the decision that they did not have all the medical evidence. The only way to deny the claim is to do it without the evidence.

Jay,

I had filed a NOD as soon as I got the decision. Everything is waiting on DRO. The C&P examiner told me everything at the exam so I didn't wait long before having the testing done privatley. So they have that too.

I agree with Terry. The RO knows axcactly what he/she is doing. The delay will make for a nice check. Problem is, it won't buy my house back. I've had enough.