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Benefit Of Doubt?


Guest Morgan

Question

We received my husband's decision letter and I have questions. First, it's important to know that my husband's doctor advised against having an exam as it was detrimental to his health. I discussed this with the rep on the 800# and he assured me it would not hurt his case if he declined the exam.

But all of his claims were denied because he didn't have the exam--"Because of conflicting medical information on file, an exam was ordered to provide more information. You canceled the exam, therefore not enough information is available to give a favorable decision on your claim."

He has medical evidence (two private IMOs) that fully confirms diagnosis and treatment of the conditions claimed. They say the private docs didn't provide treatment and lab results to support their opinions. In one IMO the supporting documentation was attached and referenced in the IMO, such as, "see evidence #4" then that document was clearly marked #4. The other doctor stated, "I have examined this patient and it is my opinion that..." He provided only his opinion, but I attached supporting VA medical records to my cover letter to prove meeting the rating criteria. VA and private medical records show diagnosis and current treatment. VA says this is not enough to support the doctors' opinions about his history and current conditions.

The main claim involves functional loss of use of both lower extremities, confirmed by two private doctors. But one VA doctor, wrote a statement in a recent record that my husband had "mild weakness and good tone in lower extremities." (He's the one who screwed up things the last time my husband was rushed to the hospital.) Here's the issue: this doctor has never even touched my husband's legs. If fact, my husband has never undressed at any time for any kind of exam by this doctor. He was always seated, fully clothed, in his wheelchair, and he only talked to the doctor. I was always with him.

A couple of months ago, I had contacted the supervisor of the nurses at the OPC about the inaccurate records in my husband's file, especially about diabetic exams for feet and legs. The supervisor called back to let me know they have, since my complaint, changed the way they enter data in the VA software program. Still the doctor's note is there and the VA used it to deny several claims.

On one hand, two IMOs with full rationale are not enough to make a favorable decision, but one VA doctor statement is enough to make an unfavorable decision, since he canceled the exam. They are saying the IMOs did not include any treating records, yet the VA doctor made only a two-line statement.

They insisted that if he doesn't go for the exam, they will not reconsider.

If a vet cannot withstand a C&P exam, and all but one inaccurate statement supports the claims, would this not be a case for applying benefit of doubt to the veteran's favor?

If anyone can help me understand this, I would greatly appreciate the help.

Edited by Morgan (see edit history)
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I understand how you feel my claims were denied based on a inadequate examination conducted in my wheelchair. I believe you have to go to the appointment but I don't believe they can force you to have an invasive prodedure. I would do a written complaint about the poor examination and any false information placed in your record both to the regional and hospital.

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The VA rater states that their is no history of treatment, lab results, etc. from the IMO Dr's. Where does the VA Rater think the Examiner is going to get his supporting evidence. The Examiner is not a treating Dr, and unless he can show a well documented exam, covering all aspects of the C&P woik sheet, and requesting lab test, and etc to further his opinion, then the rater is talking garbage which has no chance of making it through a proper review.

As to missing a C&P exam, a well written statement giving reason and basis why it would be detrimental to the health of the Veteran may even not be sufficient to see the Veteran clear from having to submit to a VA C&P examination request. It does not matter if they say it would not be held against them, even if it was put in writing. If the VA Rater says that an exam is needed to clear up some supposed missing evidence that is needed for a clear decision to be made, then and unless you can show by the preponderance of the evidence already in the records, is sufficient for rating purposes, then you are in a catch 22 as far as the VA is concerned.

On appeal, you can ask for an indepentand review of the records by another Rater, not ome from this VARO but from another, you might have a chance if the other rater finds their is sufficient evidence to rate the claim in your favor without the health endangering C&P Exam. Of course, that doesn't necessarily mean that they will find in your favor, but if the review shows a C&P is not needed, then you may have a better chance at a shot with the BVA.

Maybe if you could stretch out the C&P exam, only doing part of the exam one day and after a couple of days, do another section of the exam. In this way you have time to rest up between section of the exam and there by not being overly stressed. This of course would have to be discussed with the powers that be and hopefully you can get the proper C&P examination you need to help your claim.

May the Great Spirit be with you.

Jim S. :P

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The 2 IMOs should be enough to satisfy Benefit of doubt-

do you have a medical statement that the C & P would hinder his health?

Yes- unfortunately the VA will overrule IMOs with some quack opinion if they can-

you have to break down their quack opinion- it can be done- I have done it 4 -5 times already on my past claims and had to recently for my present claim-

"The supervisor called back to let me know they have, since my complaint, changed the way they enter data in the VA software program. Still the doctor's note is there and the VA used it to deny several claims"

Make the points with VA that you had made here-

about this examination-

another thing- I used this for a local vet-

He had an IMO from an Expert-well known in the field of his disability-

I was able to access a speech that this IMO doc gave at a symposium-

as well as treatices he had helped write.

STILL the VA knocked his IMO down over a VA doctor .

I found the VA doctor listed at Healthgrades and for a few bucks I got a run down on him.

His expertise as an internist was way below the IMO doc and he moonlighted for Workman's Comp (he was used to negative opinions)

The Healthgrades report on the IMO doctor was excellent-

also he had given a full "Rationale" unlike the VA doctor for the veteran's disability.

The VA finally awarded.

The VA med opinion I got recently was pathetic-

I kept good tracking of my husband's medical records.

They were sent to the local VAMC for a C & P (but he was dead- that would have been interesting) then when they discovered their error- they promised me and my vet rep that the VA expert would have them all plus my 2 IMOS when she got the claim-

SHe based her opinion on a few Chem bood work reports-said no Red Flags appeared in his med recs-yet she

definitely stated the veteran was a risk for DMII due to his exposure to AO, but would not say his DMII was misdiagnosed-

Reg Flags are throughout his med recs-and I have proof from the VA itself that she never saw the med recs, the IMOS, the MRIs, or the autopsy-the entire record stayed at the local VAMC for 2 months but her assistant called them for a few chem reports as they "were under pressure to get this done"

That is another thing we put up with- the VA doctors ARE under pressure for these opinions for claims-

And of course they are hiding my IMOs somewhere and never gave them to this doctor- she should have had them-oh well- that made it even easier to knock her opinion down---

My point is- my VARO vet rep- with decades of expertise felt this was basis for a successful months ago under Benefit of Doubt-

I had plenty-they had nada-like you---- you cannot accept this at all-------

In your case you have to either get the IMOs punched up to the rationale they want or knock down their medical opinion-

By the way what C & P was this?

Have you accessed it as a blank C & P to see exactly what the VA doc should have done?

Another potential way to break them down-to prove the exam was not properly done-----

Edited by Berta (see edit history)
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Berta and Jim,

The VA doctor made this statement during just a routine visit. My husband didn't go to the C&P exam, we canceled it. We got a letter saying he should come prepared to stay a long time as this exam would be complex and long and may take more than a day. His pulse rate has been in the 30s and his cardiologist advised him to stop anything that causes angina or shortness of breath. I sent that to them. I think I made someone mad at the RO because the senator's office contacted them. I didn't call the senator's office about the claim although I did mention that I thought they had rated him incorrectly for SMC. I called the senator's office about trying to get him in to a better supervised program of care, reasonable considering the VA doctors almost killed him twice in 10 months. Then the senator's rep contacted the VA and they considered it an informal claim, so I had to follow with more evidence to substantiate his claim for increased SMC. They awarded SAH last time with the IMO, but now they are questioning the functional loss of use of lower extremities.

To top all of this, we just got bad news from his primary care team. They did the overnight Holter monitor and the VA cardiologist says he needs a pacemaker. This atrial fibrillation started after the hemorrhaging in his lungs when the doctor failed to call to tell him to adjust his Coumadin. All of this was going on when they scheduled the exam. Worse of all, we had taken him to an emergency visit with a private cardiologist last week because of the 30s pulse rate and he told us a pacemaker placement would be extremely dangerous for him because of his damaged lungs. He is really stressed about his claims now, because he's heard about how the VA takes benefits away. Since they questioned the functional loss of use (because of the idiot doctor that wrote that statement), he's afraid they will start messing with his benefits. We know the claims are appropriate and his private doctors are competent. The doctor who didn't give a lengthy rationale gave his statement about his lack of function DURING an examination. I brought his signed statement home with me that day. He even said he has no more use of his lower extremities than what he would have with an amputated limb and a prosthetic device. I had told him that was the criteria for the rating of loss of use of lower extremities (feet). He said it was implausible to think he could use one and better than the other. Do you think he got too specific? Maybe they thought he was trying to make a rating decision for them???

Thank you all so much for your input. I just don't know whether to leave this right where it is or keep going. It is very stressful and intense to fight the VA. We had hoped to get this claim approved in case he needed medical care that we would be better getting outside the VA. Now that's exactly where he is with the pacemaker situation. We do not want to have that done at the VAMC.

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Is he eligible for Medicare- that would get him out of the VA system for -hopefully=better care-

and I am sorry I forget -did you file a Section 1151 claim?

"This atrial fibrillation started after the hemorrhaging in his lungs when the doctor failed to call to tell him to adjust his Coumadin. All of this was going on when they scheduled the exam."

Coumadin (Warafin) should be monitored-

http://www.drugs.com/Coumadin/

This med is powerful stuff and can have a bad interaction with other meds-

His docs sound like the Keystone cops-

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No, we haven't filed an 1151 yet. But that's in the plan.

Yes Coumadin is supposed to be monitored closely. What's worse is I called and told the team nurse to tell the doctor that he was coughing blood and having shortness of breath. After a few rude exchanges from the desk receptionist, I asked her to have him to call me to review his medication. He never called so I took him outside the VA to my doctor. When he got there the doctor said his INR was 5.62. Should have been no more than 2.5, and even that is theraputic range. I had asked over and over if I needed to call after each lab to get results, but they always told me that they would call him is anything needed to be adjusted. He has many medical records from another state where he was called to adjust his Coumadin at the rate (and below) his last two VA lab results before he went to the hospital for the bleeding. So it was too high for two months.

Honestly, Keystone Cops would be better doctors.

He is eligible for Medicare, but it is shocking how doctors treat Medicare patients. Many specialists won't accept new Medicare patients. They have to if they come through the ER but they get rid of them as soon as possible.

Another issue we addressed that they denied was an earlier effective date. The CFR says the admission date to the hospital for a SC condition is considered an informal claim and is to be assigned as the ED if a formal claim is filed within a year. If it's a nonVA hospital, it still applies, as long as the VA pays for it. This bill was paid without even going to committee because it was so obvious that it was the VA's fault. They did a full chief-of-staff investigation and told me we would get a written report in two weeks, but we didn't hear anything else about it. That was in September.

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Jim and Berta,

The PVA says they will take this directly to someone who has never had their hands on this claim before and try to get someone to reconsider it. Should I do this or ask for another RO to review it? Or go to the BVA. I was told by a consultant who worked for VA for five years as a rating specialist (He's a physician's assistant. Left because he couldn't stand to see the way they twisted the law and screwed veterans) that this is a winnable case and we could advance his documents so the BVA could decide this case in a few weeks. ???

I have no doubt I made someone mad by questioning their judgment and providing CFR and M21-1 substantive statements to back up my argument.

Edited by Morgan (see edit history)
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"The PVA says they will take this directly to someone who has never had their hands on this claim before and try to get someone to reconsider it. Should I do this or ask for another RO to review it? Or go to the BVA"

I dont know what the PVA means by this-but I assume they mean you could request a DRO review- a de Novo-a new look- at the claim-you have to make a formal request for a de novo.

I dont know how a vet could possibly get another RO to review their claim-it is within the jurisdiction of the RO it is with now-

I dont believe any valid claim should ever get so far from being done right at the RO level that it has to go to the BVA- my logic is based on the fact that the BVA looks at the same evidence, and has the same medical and legal criteria as to ROs. Of course the BVA has an advantage- they know how to read there--

the disadvantage is the time factor, and then a potential remand right back to the RO that messed it up in the first place ,adding more time .....my opinion.

I feel a good Section 1151 ,filed ASAP, would get their digits out of their rectums at the RO.

They take 1151s very seriously-

and they probably messed up more than the coumadin episode-

I would file a Sec 1151 like this:

to VARO C file etc----

This is a claim under Section 1151 of 38 USC.

I believe that my VA medical records will reveal that I have suffered from additional disability due to VA health care, to include improper administration and dosages of certain medications, known in the standard medical community to have pronounced detrimental negative affects, if they are not properly prescribed and monitored.

(You could attach anything that supports the coumadin results -bleeding lungs) if you want- I like to leave these claims sometimes open-ended-so they might put their foot in their mouth and discover something else they buggered ,that the veteran is not aware of)

Just my opinion but this is what it might take-

Sometimes a vet will complain to Congressperson or a Senator and the VA of course finds out about it.

If the vet does not follow the complaint (if about med care) up with a formal Sec 1151, the VARO just figures well- that is that- no Congressperson or senator can really do much about lousy care- the vet has to make a formal charge-

My husband , in his 1151, told them he feared they would kill him, and I told my Congressman I think they were trying to kill him,in Feb 1994, and they did 7 months later after they got his 1151 claim.

When he dropped dead I was in shock but filed this claim in my own right within 2 months of his death.

They didnt kill him BECAUSE he filed a 1151 claim- hope no one took it that way-

they killed him due to totally incompetent medical care.

Make sure-if you file the 1151, that you have ALL of his VA med recs before the MF comes into the VARO (mysterious force) and hides them somewhere-they only hide the good stuff.

Edited by Berta (see edit history)
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I misunderstood what Jim said, I think. I thought he said we could have another RO to look at it.

I don't know what the PVA means by that either. The PVA rep said if I'd get a VA doctor to write a statement that he had examined him and he has functional loss of use just as his private doctors indicated, and that an exam would be detrimental to his health, she could take it to someone she knows at the RO and have this reconsidered. She said we have a year to do that. She failed to get the POA to the RO the day she got it, and the VA decision letter said they had no record of a SO representation for my husband. Late on Friday afternoon, I told the RO he had the PVA as his POA and the next Monday morning they had the decision made and the senator's office called. We got the decision letter four days later. The PVA did finally go upstairs to get the file and look at it.

I have to work at remembering that the RO and the medical care are two separate entities. So I am a bit confused. Why would the RO care if the 1151 is filed? I can understand the medical team wouldn't be too happy; but to me, the RO seems totally unconcerned. His doctor wrote that he was given substandard care and both of the incidents were avoidable. Yet the RO decision letter mentioned no inferred 1151. Should they have notified my husband of how to do that?

Is the 1151 a claims issue, or a medical malpractice issue?

In another issue, the VA said his records were silent on renal dysfunction, but in another statement they quote a VA doctor about joint degeneration that is "possibly related to known renal dysfunction." And it just now hit me, they rated his renal dysfunction lumped with diabetes in the last claim. How absurd to say his record is silent about renal dysfunction. Still, what can the vet do? Appeal.

What gets me is the VA had no incentive to do this right. A veteran can go to jail for misstating something, but when the VA does it, what can the vet do? Appeal.

Edited by Morgan (see edit history)
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  • HadIt.com Elder

A lot of claims should be inferred by the VA but they rarely are in my experience. I don't think they would ever infer a Section 1151 claim. They don't even infer obvious secondary DMII medical conditions. They don't infer earlier effective dates when they know the condition existed prior to the claim. The VA does nothing unless they are pushed, kicked and prodded into it. They will decide a claim and not even look at the file.

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"Is the 1151 a claims issue, or a medical malpractice issue"

It is a legal VA disability claim over a malpractice issue-

Many vets ( in some cases I dont think it is good idea)

file both the 1151 and also a formal SF95 charge against the VA.

The SF 95 sets the issue up with the VA lawyers-(Federal Tort Claims Act)

These are two separate entities-

ROs rule on the 1151 claims- the regional counsel rules on the SF 95- and if you need to continue to fight it, it goes to the Office of General Counsel in Washington where there are superb VA medical doctors who deal with it.

An SF 95 can trigger a large settlement- if successful-

that settlement (lump sum) is offset against the veteran's comp for the same disability.

In my case I invested most of the settlement to generate enough interest to offset the DIC offset-they continued to deny the 1151 even though the VACO had granted wrongful death-

I made the OGC call the VARO- got my DIC award letter real fast then-

One of my vets who I helped get 100% under 1151 felt that-had he filed under FTCA- a formal charge with VA lawyers- he would have blown the cash too soon and preferred the 100% check every month.

He was right to do this-2 years ago he got retro for PTSD and some SMC- over $8,000 bucks-

in less then 2 weeks it was gone-

The VARO might not seem to handle the 1151 with much concern- and they will hope you go away-

but behind the scenes they do take this type of claim seriously-

my c file reveals that- as well as two VA medical opinions that were atrocious-

they pressure these docs to write anything-I immediately knocked these atrocious medical opinions down with solid evidence.

It is up to you- the renal dysfunstion- I would certainly look into that-

this is most certainly due to the Diabetes-

what are his BUN and creatinine levels-you need to read over his Blood and Urine Chemistry reports-

It says right on the med rec what is normal and abnormal-

There are many sites on the web to help one decifer med rec symbols.

Many of us here know what they mean.

what is the VA doing about this ? Renal dysfunction- like so many other complications of diabetes- if not properly assessed and treated can lead to

death.

John is right- they could 'infer' claims themselves but they don't. They have to be told everything like they are 10 years old.

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Thanks, Berta. This is good info and I greatly appreciate it.

The Home Based Primary Team came this morning and they say the doctor has no problem with verifying his functional loss of use of lower extremities and renal dysfunction. They say they will input that medical evaluation in his medical record right away. Do you think the DRO would reconsider this?

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I hope they will also state that it is due to or secondary to his SC diabetic condition-

The DRO- they should consider anything you have -during the DRO process and even if they sent you a SOC or SSOC already----

Here is the DRO Job Description:

I am in processing forcing my DRO to do what she is paid to do---: In the past 6 months she hasn't even gotten to # 2 yet

http://72.14.207.104/search?q=cache:gyPtup...&hl=en&ie=UTF-8

This is the basic overview but the link goes into more detail:

Stage Description

1 The appellant elects the DRO review process.

2 The DRO conducts a de novo review of the prior decision.

Reference: For more information on de novo review, see M21-1MR, Part I, 5.C.13.

3 Based on a review of the evidence of record, is there enough evidence to make a new decision?

If yes, the DRO makes a new decision.

If no, the DRO

pursues additional evidence considered necessary to resolve the claim, and/or

conducts an informal conference to obtain additional evidence from the appellant and his/her representative.

4 Based on evidence gathered, the DRO

upholds or overturns the original decision

works with the appellant and his/her representative to

focus the issue, and

fully explain the decision in an effort to resolve the appellant’s disagreement, and

begins to prepare the appeal for BVA review by sending an SOC, unless there is a full grant of benefits.

Reference: For more information on sending an SOC, see M21-1MR, Part I, 5.D.

11. DRO Duties and Responsibilities

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