Allan Or Anyone

[ruby]

I know I read somewhere that the VA encourages the medical examiners to accept medical literature etc to support thier claims. I can't find what this information now and I need it for a NOD.

I don't know if it was a BVA,CAVC decision, letter of some sort.

Does anyone know if this exist and where I would find it. I was denied based on no medical literature to support, yet, the examiner refused it and the VARO ignored it --yes, it was submitted my an MD.

Thanks.

[Testvet]

Ruby I have never heard of a rule like that, with all of the studies linking heart disease and hypertension to PTSD as secondary problems the VA still denies claims even at the BVA level that uses the studies themselves as evidence then they still want your doctor to explain how your problems fit into the report you are using they can't add 1+1=2 they demand that a doctor spells it out step by step I had 3 doctors do it in IMO's over the past 7 years it didn't help at the RO level but the BVA Judge accepted it I know this doesn't explain what you want but I have never seen a written rule that the VA HAS to accept what the medical literature says as facts

[ruby]

Ruby I have never heard of a rule like that, with all of the studies linking heart disease and hypertension to PTSD as secondary problems the VA still denies claims even at the BVA level that uses the studies themselves as evidence then they still want your doctor to explain how your problems fit into the report you are using they can't add 1+1=2 they demand that a doctor spells it out step by step I had 3 doctors do it in IMO's over the past 7 years it didn't help at the RO level but the BVA Judge accepted it I know this doesn't explain what you want but I have never seen a written rule that the VA HAS to accept what the medical literature says as facts

Thanks Testvet, I remember reading somewhere an opinion or something that stated the c%p examiners could and should except medical literature or any other type of evidence to support thier claim at the c&p exam---Mine said no I can only review whats in your file.

That's what I am looking for I was denied due to the c&p jerk saying no medical literature to support when he refused to look at it.

[Hoppy]

The Board acknowledges the medical article submitted by the

veteran. With regard to medical treatise evidence, the Court

has held that a medical article or treatise "can provide

important support when combined with an opinion of a medical

professional" if the medical article or treatise evidence

discusses generic relationships with a degree of certainty

such that, under the facts of a specific case, there is at

least "plausible causality" based upon objective facts rather

than on an unsubstantiated lay medical opinion. Mattern v.

West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West,

11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509

(1998).

The RO should also contact Jan Beyea,

Ph.D., Consulting in the Public Interest,

550 South Bay Avenue, Islip, New York

11751 and request that he provide the

referenced statistical support for his

conclusion that the veteran is 1000 times

more likely to suffer injury from Hanford

related injury than the average person.

He should also be requested to provide

any new information regarding the release

of radiation from Hanford during the time

the veteran was stationed there and any

radiation dose reconstruction based on

that information. Any information so

obtained must be associated with the

claims folder. Failures to respond or

negative replies to any request should be

noted in writing and also associated with

the claims folder.

[Hoppy]

I have seen this problem when appealed result in a remand for the C&P examer to also read and comment on the literature your doctor discussed.

Right now your doctors opinion is not rebutted and they cannot ignore evidence.

[gdsnide]

Ruby,

Since they have made a decision NOD it then see if U can get a Lawyer interested or go to the BVA

GARY

[broncovet]

Neither the BVA, nor the CAVC can use a lay opinion to over ride a qualified medical opinion, including the opinion of a rating specialist, or even the opinion of a judge, on medical matters.

That is, if your doctor opines that YOUR condition "is at least as likely as not due to military service" then ONLY other doctors can "trump" than opinion, and, even then the "other doctors" would not necessarily trump that opinion if they just saw you one time, while your doctor has seen you over the years.

If your regular doctor has seen you for years, and offers the opinion that "your condition is at least as likely as not due to military service", then you can argue at appeal that the C&P "doctor", who has only seen you 20 minutes, is not as qualified to make that opinion as is your regular doctor who has a much longer history with you.

Do not overlook the possibility of shredding. If you can find evidence that may have been mishandled (not considered in the decision), then you can also argue at appeal that the C and P doctor did not view the COMPLETE File, because some key evidence was missing which led the C and P doc to an inappropriate conclusion.

Edited May 24, 2009 by broncovet