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Getting An Independent

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Berta

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Independent Medical Opinions can often be the only way a veteran or widow can succeed on a VA claim.

Opinions obtained from private treating doctors are often free yet most independent medical opinions are needed from doctors with full expertise in the field of the disability can be very costly.

However an award can easily absorb this cost with a few comp checks or the increases in comp that the claimant might never obtain without an IMO.

A Valid IMO must contain the following:

The doctor must have all medical records available and refer to them directly in the opinion.

In cases involving an in-service nexus- the doctor needs to read and refer to the SMRs.

Also the doc needs to have all prior SOC decisions from VA particularly those referencing any VA medical opinions or a copy of the actual C & P results.

The doctor should define their medical expertise as to how their background makes their opinion valid.

In other words a psychiatrist cannot really opine on a cardiovascular disease.

An internist cannot really opine on a depression claim.

The doctor must have some valid medical expertise that makes his/her IMO valid.

The doctor should state their opinion in terms of “as least as likely as not”, or “More than likely” as to the present disability and the nexus to the veteran’s service medical records or other SC disabilities, if the medical evidence warrants them to agree with the claim.

They should then refer to specific medical evidence to support their conclusion.

They should rule out any other potential etiology if they can-but for service as causing the disability.

They should briefly quote from and cite any established medical principles or treatises that support their opinion.

They should point out any discrepancies in any VA examiner’s opinion-such as the VA doctor not considering pertinent evidence of record in the veteran’s SMRs or Clinical record.

They should fully provide medical rationale to rebutt anything that is not medically sound nor relevant or appropriate in the VA doctor’s opinion.

They should attach a full Curriculum Vitae if possible or list their expertise within the opinion and tell VA of any special medical background they have that also makes their opinion valid. (For example, how long they have treated patients with the same disability, any articles they have written, or symposiums attended etc,)

It helps considerably to identify pertinent documents in your SMRs and medical records with easily seen labels as well as to list and identify these specific documents in a cover letter that requests the medical opinion.

A good IMO doctor reads everything you send but this makes it a little easier for them to prepare the IMO as to referencing specific records.

Send the VA and your vet rep copies of the signed IMO.

And make sure your rep sends them a 21-4138 in support of it- you also- can send this form (available at the VA web site) as a cover letter highlighting this evidence.

PS- Mental disabilities- make sure the doctor states that you are competent to handle your own funds- otherwise, if a big retro award is due-the VA might attempt to declare you incompetent and it takes times to find and have the VA approve of a payee.

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Did you NOD their decision and point out the in service evidence to them?

Did they list this as Evidence in the SOC or simply just ignore it?

What was their exact wording of the denial?

Do you have copies of your SMRs that reflect the back problems?

Did you highlight these copies and send them to the VA to support the claim?

Did yoiu attempt to get any buddy statements to prove the inservice nexus (link) to the back problems?

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  • Content Curator/HadIt.com Elder

Berta,

Thank you for responding.

Did you NOD their decision and point out the in service evidence to them?

Yes.

Did they list this as Evidence in the SOC or simply just ignore it?

They listed some, but not all of it. I sent them what they were missing.

What was their exact wording of the denial?

Here's the denial letter from the NOD I filed, but I can't find the original denial letter. I will probably need to go to the VARO and review my records, including getting a copy of my C-file.

We determined that the following condition(s) was/were not related to your military service, so service connection remains denied: back disability 0%.

Decision

The previous denial of service connection for back disability (also claimed as upper and lower back condition) is confirmed and continued.

Evidence (I am paraphrasing, for privacy purposes)

- Service treatment records

- ER treatment records

- Orthopedic treatment records

- MRI report

- Epidural pain block treatment records

- Neurologist treatment records

Reasons for Decision

The claim for service connection for back disability (also claimed as upper and lower back condition) is considered reopened. However, the evidence continues to show this condition was not incurred in or aggravated by military service.

The service treatment records were considered in deciding your claim. Private medical records show you have been diagnosed with degenerative disc disease and chronic low back pain with lumbar disc displacement. You have received lumbar epidural steroid injections.

Do you have copies of your SMRs that reflect the back problems?

Yes, I have everything.

Did you highlight these copies and send them to the VA to support the claim?

Yes. I made sure that I sent them only copies the records related to the problem.

Did yoiu attempt to get any buddy statements to prove the inservice nexus (link) to the back problems?

I do not have any buddy statements, but my ex-wife did provide an objective statement of what she observed while we were married. However, we were not married while I was in the military.

Based on the "incurred by or aggravated by military service" statement, they obviously ignored something because:

1. Entrance exam shows no back problems.

2. Service treatment records show numerous injuries and treatment for back problems

3. Exit exam indicates 'history of back problems'.

Thanks,

Vync

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  • Content Curator/HadIt.com Elder

Talk about timing, I just got another claim denial in the mail from the VA. I posted the text of it here:

Lower Back Claim

I'll follow up with my claim problems there.

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Responding to the bottom of this page with your comments: No back probs prior to service, problems in service re:back and exit exam notes back problems...I have basically the same documentation...Health condition upon enlistment physical Good, no back problems...Back injury in-service with months of treatments/therapy/pain medication/bed rest/no relief of pain/pain radiating to legs/given a corsett to wear/and discharge physical denotes health condition fair with all the back problems noted...yet I have been fighting for my due justice since 03. Case is at BVA. Good luck with your claim for your back. I presented 2 IMO's/IME's and they took the word of a flunky Nurse Practitioner whom the VA demoted from ever doing C&P's again...and the beat goes on...

Berta,

Thank you for responding.

Did you NOD their decision and point out the in service evidence to them?

Yes.

Did they list this as Evidence in the SOC or simply just ignore it?

They listed some, but not all of it. I sent them what they were missing.

What was their exact wording of the denial?

Here's the denial letter from the NOD I filed, but I can't find the original denial letter. I will probably need to go to the VARO and review my records, including getting a copy of my C-file.

We determined that the following condition(s) was/were not related to your military service, so service connection remains denied: back disability 0%.

Decision

The previous denial of service connection for back disability (also claimed as upper and lower back condition) is confirmed and continued.

Evidence (I am paraphrasing, for privacy purposes)

- Service treatment records

- ER treatment records

- Orthopedic treatment records

- MRI report

- Epidural pain block treatment records

- Neurologist treatment records

Reasons for Decision

The claim for service connection for back disability (also claimed as upper and lower back condition) is considered reopened. However, the evidence continues to show this condition was not incurred in or aggravated by military service.

The service treatment records were considered in deciding your claim. Private medical records show you have been diagnosed with degenerative disc disease and chronic low back pain with lumbar disc displacement. You have received lumbar epidural steroid injections.

Do you have copies of your SMRs that reflect the back problems?

Yes, I have everything.

Did you highlight these copies and send them to the VA to support the claim?

Yes. I made sure that I sent them only copies the records related to the problem.

Did yoiu attempt to get any buddy statements to prove the inservice nexus (link) to the back problems?

I do not have any buddy statements, but my ex-wife did provide an objective statement of what she observed while we were married. However, we were not married while I was in the military.

Based on the "incurred by or aggravated by military service" statement, they obviously ignored something because:

1. Entrance exam shows no back problems.

2. Service treatment records show numerous injuries and treatment for back problems

3. Exit exam indicates 'history of back problems'.

Thanks,

Vync

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I wanted to bump the IMO criteria up- had many questions lately on IMOs.

There is no IMO criteria in 38 CFR. I based this criteria on my IMOs from a former VA doctor who knew exactly what the VA needed to have in an independent medical opinion.

"Independent Medical Opinions can often be the only way a veteran or widow can succeed on a VA claim.

Opinions obtained from private treating doctors are often free yet most independent medical opinions are needed from doctors with full expertise in the field of the disability can be very costly.

However an award can easily absorb this cost with a few comp checks or the increases in comp that the claimant might never obtain without an IMO.

A Valid IMO must contain the following:

The doctor must have all medical records available and refer to them directly in the opinion.

In cases involving an in-service nexus- the doctor needs to read and refer to the SMRs.

Also the doc needs to have all prior SOC decisions from VA particularly those referencing any VA medical opinions or a copy of the actual C & P results.

The doctor should define their medical expertise as to how their background makes their opinion valid.

In other words a psychiatrist cannot really opine on a cardiovascular disease.

An internist cannot really opine on a depression claim.

The doctor must have some valid medical expertise that makes his/her IMO valid.

The doctor should state their opinion in terms of “as least as likely as not”, or “More than likely” as to the present disability and the nexus to the veteran’s service medical records or other SC disabilities, if the medical evidence warrants them to agree with the claim.

They should then refer to specific medical evidence to support their conclusion.

They should rule out any other potential etiology if they can-but for service as causing the disability.

They should briefly quote from and cite any established medical principles or treatises that support their opinion.

They should point out any discrepancies in any VA examiner’s opinion-such as the VA doctor not considering pertinent evidence of record in the veteran’s SMRs or Clinical record.

They should fully provide medical rationale to rebutt anything that is not medically sound nor relevant or appropriate in the VA doctor’s opinion.

They should attach a full Curriculum Vitae if possible or list their expertise within the opinion and tell VA of any special medical background they have that also makes their opinion valid. (For example, how long they have treated patients with the same disability, any articles they have written, or symposiums attended etc,)

It helps considerably to identify pertinent documents in your SMRs and medical records with easily seen labels as well as to list and identify these specific documents in a cover letter that requests the medical opinion.

A good IMO doctor reads everything you send but this makes it a little easier for them to prepare the IMO as to referencing specific records.

Send the VA and your vet rep copies of the signed IMO.

And make sure your rep sends them a 21-4138 in support of it- you also- can send this form (available at the VA web site) as a cover letter highlighting this evidence.

PS- Mental disabilities- make sure the doctor states that you are competent to handle your own funds- otherwise, if a big retro award is due-the VA might attempt to declare you incompetent and it takes times to find and have the VA approve of a payee."

I need to add here that a secondary condition to an established SC condition wold not need the IMO doctor to read all of the SMRs.

They just have to state with medical rationale why the second claimed disabilty is due to (secondary to) the initial SC disability.

DIC claims IMOs are different and the IMO doctor needs the death certificate and any autopsy findings and any past C & Ps as well as the entire clinical record (to include SMRs in most cases) and copies of any and all private records.

Contributing causes of death on the death certificate ,if service connected, should warrant a DIC award.

Say the vet dies and the Death certificate reads, immediate cause of death ,cardiac arrest

with cerebral ischenmic event

contribting.

Say this vet had SC DMII and then died due to the massive brain stroke.

An IMO could reveal with full medical rationale that the brain ischemia ,as likely as not was caused by the diabetes due to diabetic cardiomyopathy, evident as atherosclerotic heart disease, proven by past ECHO, causing a clot that passed into the veterans brain.

I am not a doctor but the point here is that an IMO regarding a veteran's death can make the difference between the spouse getting a denial or a DIC award.

A good IMO doctor will state medically- step by step- how the veteran's cause of death was contributed to by any SC condition, if the medical evidence supports that finding and that is a medical rationale.

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bumping it up again

I just noticed I developed the DIC criteria before the new AO IHD presumptive came into play.

If a AO vet with DMII died of IHD or CAD which VA said had preceeded their DMII -I bet the VA denied many DIC claims on that basis and the new AO IHD regs would allow that claim to be reopened under Nehmer now.

VA in my case did pull out a past IHD CUE claim I had pending and sent it to the Nehmer people but I didn't wait for that and I filed a new AO IHD claim too.

AO widows and widowers whose claims (for DIC and Accrued) now fall under Nehmer (denied in the past for what is now an AO presumptive and had accrued claims as well as DIC denied) can -if successful under the new regs obtain ALL accrued beneits due the veteran in their lifetime as well as potential favorable EED and retro amount.

I check with a NVLSP lawyer 2 weeks ago on that and-it does not matter if the widow/widower filed for accrued within the one year after death traditional accrued claim deadline either as long as the veteran had a pending claim regarding an AO condition at time of death.

(Or a claim that can easily be construed as a AO condition.)

My article on survivors and the new AOs will be coming soon at VAWatchdog,.org.and I will post a link to it at hadit.

Edited by Berta
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