Court Filing Question?

[allan]

If the BVA leaves out a important IMO in their final decision, is this an error the court would look at?

The BVA says in their final that the cervical, thoracic & lumbar region that has developed DJD & DDD from the accident I'm claiming, couldn't have been service connected, but the osteoarthritis that developed over the same time span in the shoulder, from the same accident, is.

The judge completely left out the Sept IMO Dr Bash & the PVA submitted.

Dr Bash submitted a prior IMO in Feb & the BVA said he didn't have the complete file in front of him when he made his statement, so they gave it no weight.

He states in his Sept-05 IMO that he "again" reviewed the VA claim file and it is still my impression that his multilevel degenerative changes of the spine are related to his motor vehicle accident in service.

Rationale: The accident(being thrown from a car) represents a significant trauma to the neck & back. He states," it is known that such an injury precipitates or accelerates the onset of the degenerative process of the spine, Turek, beginning at page 1512 and elsewhere.

The BVA judge Thomas, requested a IMO for the shoulder"only" this last Jan & the Dr said almost the same as Dr Bash for the shoulder. The BVA than awards the shoulder & writes it up like medical science couldn't apply to the spine, only the shoulder?

[CRYPTOTECH]

The VA dislikes doctors like Dr. Bash because he is only going to opine to your favor.You're paying him to opine in your favor and the VA knows this. They get so many opinions from Dr. Bash and they are all in favor so sometimes they give his evals very little weight.

He will also ALWAYS say he reviewed the Veteran's claim file when a lot of times he didn't.

Frank

If the BVA leaves out a important IMO in their final decision, is this an error the court would look at?

The BVA says in their final that the cervical, thoracic & lumbar region that has developed DJD & DDD from the accident I'm claiming, couldn't have been service connected, but the osteoarthritis that developed over the same time span in the shoulder, from the same accident, is.

The judge completely left out the Sept IMO Dr Bash & the PVA submitted.

Dr Bash submitted a prior IMO in Feb & the BVA said he didn't have the complete file in front of him when he made his statement, so they gave it no weight.

He states in his Sept-05 IMO that he "again" reviewed the VA claim file and it is still my impression that his multilevel degenerative changes of the spine are related to his motor vehicle accident in service.

Rationale: The accident(being thrown from a car) represents a significant trauma to the neck & back. He states," it is known that such an injury precipitates or accelerates the onset of the degenerative process of the spine, Turek, beginning at page 1512 and elsewhere.

The BVA judge Thomas, requested a IMO for the shoulder"only" this last Jan & the Dr said almost the same as Dr Bash for the shoulder. The BVA than awards the shoulder & writes it up like medical science couldn't apply to the spine, only the shoulder?

[vaf]

VA decisions must contain an analysis of the credibility or probative value of the evidence submitted by and on behalf of appellant in support of his or her claim, and if the VA rejects this evidence, the VA must submit a statement of the reasons or bases for the implicit rejection of this evidence by the VA. See Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994) citing Gilbert v. Derwinski, 1 Vet. App. 49, 59 (1994).

VA is required to consider all the evidence of record, including medical records and all pertinent lay statements. See Harder v. Brown, 5 Vet App. 183 (1993).

The Board of Veterans Appeals cannot rely only upon evidence it considers to be favorable to its position. It must base its decision upon all the evidence of record. See Smith v. Derwinski, 2 Vet.App. 137,141 (1992) citing Willis v. Derwinski, 1 Vet.App. 63, 66 (1990).

The Board of Veteran’s Appeals’ failure to address evidence in its decision is indicative of whether it considered such evidence. See Douglas v. Derwinski, 2 Vet.App. 435, 440 (1992).

If your IMO, personal statement or any other evidence is not listed as evidence in the decision and is not discussed in detail in the decision, you should cite the above Court decisions regarding evidence in your NOD.

[allan]

I didn't pay Dr Bash for a favorable medical opinion.

I paid him for a thorough evaluation of my service, medical records since service, c-file & provide a diagnoses for or against Multiple Sclerosis.

I was looking to get it settled & felt, like the VA rating dept., that the VAMC Dr's refused to look at the whole picture & use all the medical evidence available.

If your publically accusing Dr bash of fraudulently selling medical opinions without proof, I'd advice you to reconsider. That's against the law, isn't it? Especially if you work for a federal agency.

Or do you just have something against him personally.

I wouldn't think his opinions would carry so much weight with the CAVC for medical opinions if he was the fraud you claim he is.

Edited June 6, 2009 by allan (see edit history)

[CRYPTOTECH]

So would you of paid him to do a eval and write up a negative evaluation against your claim. I think not. I'm not saying Dr. Bash is a fraud but he is getting paid NOT to write up negaitve evails. It's common sense. If he wrote up negative evals he wouldn't be in business. He's in business to make money off hard-pressed Veterans and Social Security Claimants. I do understand trying him though if you have exhausting everything else. What else you have to lose, except 2 grand of your hard earned money. I'm just telling it like it is. Sorry, you didn't hear what you wanted to hear.

Frank

I didn't pay Dr Bash for a favorable medical opinion.

I paid him for a thorough evaluation of my service, medical records since service, c-file & provide a diagnoses for or against Multiple Sclerosis.

I was looking to get it settled & felt, like the VA rating dept., that the VAMC Dr's refused to look at the whole picture & use all the medical evidence available.

If your publically accusing Dr bash of fraudulently selling medical opinions without proof, I'd advice you to reconsider. That's against the law, isn't it? Especially if you work for a federal agency.

Or do you just have something against him personally.

I wouldn't think his opinions would carry so much weight with the CAVC for medical opinions if he was the fraud you claim he is.

[vaf]

Just my opinion, but I don't see where it serves any purpose to argue the merits or liabilities of IMO providers such as Dr. Bash. Let's also remember that full-fledged M.D.'s sign off on C & P exams performed by nurse practioners, PA's, residents, and other non-M.D. evaluators, without reading the entire C-file or examining the vet in person.

Bottom line, if what the vet considers to be valuable evidence is not cited, weighed and discussed as to its impact on a rating decision, the vet needs to cite legal argument to force that consideration into the process. Evidence ignored is evidence not considered. I believe that's the best approach to tip the benefit of the doubt in favor of the veteran.

[allan]

Thank you VAF.

I'll do so.

The judge picked out part of a comment a Dr put in my records decades ago.

The Dr says I came in with back pain from helping to push a car out of the mud. The next sentence says I have a long term history of back problems. This statement is throughout my medical history.

The judge picked out, "Dr says I came in with back pain from helping to push a car out of the mud."

A few months later the same lumbar, thoracic or cervical spot flairs up again. The Dr says I came in with back pain again. Says I reported walking in snow & feeling pain. Again the Dr states I have a long term history of back problems. So this judge only picks out the things I'm telling the Dr that caused the spine to flair up & writes it up as inter-current causes. Its plain as heck the Dr is saying its the same crap flaring up.

DDD & DJD never does heal. It's not new injuries but flair ups. I get them from sneezing or rolling out of bed. Anything can trigger a herniated disk, scoliosis or arthritic bone spur poking a nerve on me. It's in decades of records.

This judge completely excluded favorable parts of VAMC C&P's. He picked out what he wanted concerning the shoulder & left out the left arm, cervical, thoracic, lumbar & MS that was also stated as favorable by several Dr's.

The BVA has been doing this to me for nearly 12 yrs in every SOC or SSSOOOCCCC.

He states from the VAMC opinion, the osteoarthritis in the shoulder could evolve from the accident and quotes the VAMC Dr. But says the injured spine from the accident couldn't do that. Whiplash & blunt chest trauma can't have a lasting effect on the spine, but the shoulder involved in the same, blunt chest trauma can? What pure BS.

All those Dr's, including their own C&P dept knows nothing, but this BVA judge has all the medical knowledge there needs to be to exclude them.

Than he excludes altogether Dr Bash's IMO's that stated the spine injuries evolved into the DJD & DDD I presently have.

My brain doesn't work right & I can see where the fraudulent statements are. And it's not on the part of three other Dr's & Dr Bash. They all say the same thing. Service connected.

Guess I'll let an attorney have some real fun with the BVA. I've kept this going since 1995. That will help getting someone that knows their stuff I think.

He states he requested an neuro-orthopedist to provide an opinion, but he refused.

So you try once with one Dr & thats it?

Good thing I'm heavily medicated. This stuff use to make me tear the house apart.

[allan]

Dr Bash had my c-file copy two months before he decided to write the opinion.

He said he wouldn't charge anything If I wasn't in my favor.

Like SSA attorneys & VA attorneys, you have to evaluate the evidence "first" before you decide to take on the case.

It isn't a bought & paid for deal upfront. Your records are evaluated first & if there is a favorable opinion in there, than you pay. Not the other way around. He screens his work in advance.

It doesn't sound illegal or deceptive to me.

Like you say, he wouldn't be in business long charging for unfavorable IMO's.

I paid for an honest evaluation from Dr Bash, just like I did from my private treating MD. They both found all issues favorable, as did the VAMC C&P examiner.

When the VA pays for their IMO's, do they know the outcome in advance?

Spend over a decade Dr shopping for opinions like the BVA does & you can get a variety of opinions to choose from.

Isn't it nice of them to exclude whatever evidence is favorable, no matter where it comes from.

Maybe all Dr's opinions that are favorable to a vet are suspicious & must be excluded from a judges evaluation. Is that how it works?

Edited June 7, 2009 by allan (see edit history)

[broncovet]

VAF offered some very good advice.

In short, yes, if they did not cite your Dr. Bash IMO in their "Reasons for Decision", then they did not consider all the evidence of record, and, yes, that is an error. (CUE)

Although I generally like what Dr. Bash is doing, I do feel:

1) He is too expensive

2) Yes, his opinions are Pro Vet..he is being paid by the Veteran. Frankly I consider this LESS of a conflict of Interest than QTC "docs" doing C and P exams. After all, isnt it Dr. Peake who is a majority shareholder in QTC Corp?

[CRYPTOTECH]

Allen, I understand your frustration. It isn't illegal. I know that. And I agree that the VA does pay for their own C&P Examiners and they are often one-sided. It does work both ways. I see a more valid point here. If the VA is willing to pay then you have that same right. I'm just confused how the VA denied your claim when their own C&P examiner opined in your favor.

Good luck with your claim and just stick with it. You will probably get that brown envelope in the mail when you least expect it. And all this waiting and anxiety will be behind you.

Frank

Dr Bash had my c-file copy two months before he decided to write the opinion.

He said he wouldn't charge anything If I wasn't in my favor.

Like SSA attorneys & VA attorneys, you have to evaluate the evidence "first" before you decide to take on the case.

It isn't a bought & paid for deal upfront. Your records are evaluated first & if there is a favorable opinion in there, than you pay. Not the other way around. He screens his work in advance.

It doesn't sound illegal or deceptive to me.

Like you say, he wouldn't be in business long charging for unfavorable IMO's.

I paid for an honest evaluation from Dr Bash, just like I did from my private treating MD. They both found all issues favorable, as did the VAMC C&P examiner.

When the VA pays for their IMO's, do they know the outcome in advance?

Spend over a decade Dr shopping for opinions like the BVA does & you can get a variety of opinions to choose from.

Isn't it nice of them to exclude whatever evidence is favorable, no matter where it comes from.

Maybe all Dr's opinions that are favorable to a vet are suspicious & must be excluded from a judges evaluation. Is that how it works?

[Berta]

Allan-In March I realized I had not gotten as tough with VA as I did when I won my last claims-

Inspite of 2 DRO reviews (one due to a CUE) and 2 VA opinions -my IMOs from Drs Bash and Rabiee still remained ignored by the AMC-

The BVA remand in September was first time VA even acknowledged them.

I knocked down the new VA remand opinion myself,sending this rebuttal directly to the BVA and I specifically pointed out in April (I think I sent the BVA a Fax instead of letter)

not only more medical evidence but also I stated the errors I would call the CAVCs attention to-

if my IMOs continued to remain ignored.

Thinking that the BVA would Dr shop for a cardiologist (they asked for a cardio opinion but it came from a PA) I then ordered and paid for an additional IMO-but the doctor had not had time to review the extensive packet of med recs from me when a BVA envelope appeared in my mail 3 weeks later-after my strong statement (and more evidence) to the BVA.

I thought it was either another remand -the reason I ordered the additional IMO) or someone elses decision (I got two vets decisions by mistake from BVA last year.

It was an award.

Finally my IMOs had been addressed.

Also even my initial medical evidence I sent with the claim in 2003 -which a VA doctor tried to knock down-and I rebutted as well as Dr Bash-

was also stated as emphatically supportive of the claim.

The BVA certainly knew that the errors I stated -if the claim was denied- would be vacated or reversed by the CAVC.

The VA cannot ignore probative medical evidence that supports a claim.

This is a basic tenet of VA case law.

If the VA opines against an IMO with medical rationale-that is far different story-

but if they acknowledge they have an IMO,they are supposed to consider it fully if it supports a claim.

[Berta]

lost part of post in hyperspace-

You can file a Motion for Reconsideration at the BVA if they ignored the IMO or to at least rebutt the way they handled it.

Can you scan and post the decision here?

[Wings]

x

x

x

Allan,

I recieved the BVA Decision (denial), April 2009.

I have 120 days to file appeal at the CAVC "Court".

HOWEVER, if I file a "Motion for Reconsideration" with the BVA, that stops tolling the 120 days to file at the Court; and I have up to 120 days to file the "Motion for Reconsideration".

Once I get the BVA decision on the "Motion", I then have 120 days to file at the Court.

This is my plan. I am buying myself TIME to get my ducks in a row for an appeal to the Court.

When I file at the Court, I am fairly certain I will want to hire an Attorney.

~Wings

[Pete53]

Wings:

I love it when a plan comes together. Excellent strategy in my opinion. I am also of the opinion that the VA is going to move more to favor Vets than saving Government money. This could be the right time to gather all your ammunition for a final push.

[Berta]

Yep- Wings is right to do this-

it isnt only strategy -it is tactical warfare maneuvering-on the paper VA battlefield.

Whatever a vet can do if denied at the BVA level-or even prior to the denial -to set the claim up for potential CAVC filing is definitely getting those ducks in a row ---and well armed.

Somewhere here at hadit I posted some time ago NVLSPs suggestions for the I-9 appeals form-

to add to the form (I stuck it into the BVA hearing part) that I was preserving all errors that the VA made or could make in processing my claim-

then after I got the remand (which did take note of the VCAA errors they made which I relentless reminded the VA of-)

I also sent them additional evidence in March 2009 again mentioning the fact that my lay and professional medical evidence-contrary to all established evidentiary VA case law -still remained ignored and more importantly- unrefutted

and this clearly was another error that the CAVC would take note of.

NVLSP was very happy I posted their I-9 suggestion here at hadit- I hope it is available under search- if not I will try to post it again (my Word program is down-cant copy and paste it)

and when I recently helped a lawyer, who under auspices of NVLSP, had his first veteran's case at the CAVC, I learned that we should try to shape our responses to BVA-whether by Motion for Reconsideration or Addendum to put additional evidence into the record-

geared towards the fact that -with a potential BVA denial that could come our way-we are prepared to claim all errors the BVA made in their decision- that could get a CAVC remand or they could vacate the BVA decision and even award the claim.

A CAVC case on the docket means it is too late to send new evidence in.

But if the BVA made any significant errors (which could go back to the original VCAA letter the vet got)errors that prejudiced a potential award-

then a vet who can successfully call these errors out to the CAVC and get a remand - has more one bite at the apple to then present more evidence for the claim.

I almost just typed 'game' instead of claim.

it IS a GAME.

A war game!

You all know far better then I do how war games are played.

I only played them on paper for school.

But like the ones you did-they involve planning, strategy, and tactical maneuvers-geared to a very specific goal-Victory-

and VA claims really arent much different.

[allan]

Judge Thomas has been evaluating my evidence for over a decade.

I can't see how putting it back in his hands would help anything. He will likely refuse to include the same IMO's Dr Bash & the PVA hand carried to the BVA in DC., since he completely left that out of the final SOC. Any new IMO only opens the door for this BVA judge to Dr shop for the right IMO to deny on. If the judge says he gives no wieght to a favorable IMO I submit, he provides no medical rational for doing so. He grants the shoulder & denies the spine issues from the same accident. My guess is I will get 20% for the shoulder. Add that to my 30% & that will probably make 30%.

It's not hard to figure out how this rating system works for us vets.

But, I see what you mean about it being tied down so you can't submit new evidence if you just take it to the CAVC right off the bat.

I'm so sick of it I really want to have an attorney take this over, but see I must file a reconsideration to make sure all evidence & what I need to rebut gets in the record before it goes to CAVC. The CAVC will be final on the spine issues so I need to make sure everything has been rebuted before that.

I will take the advice & wisdom of you & Wings Berta. I'll get the reconsideration put together ASAP.

I just received a notice that the claims for MS, fibromyalgia, depression & chronic pain Dr Bash & the PVA filed in 2005, just reached the Seattle VARO since the BVA decision was final.

That means my C-file is probably there as well, so I need to get those claims rolling. I've got all needed medical records ready. Just need to figure out how to write it up. The Seattle PVA SO I had all these years turned it over to someone who has no clue what my claim is about, so I don't expect much help.

In the letter from the VARO I just received, it says they are very busy so it could be some time before they get to it & theres nothing I need to do right now. They say they will let me know if I need to send them anything.

Why is it I don't trust a thing they say?

I appreciate all the advice everyone gives. Without hadit I am lost.

[allan]

Frank. You asked: I'm just confused how the VA denied your claim when their own C&P examiner opined in your favor.

In 1997 I had a general medical C&P. The examiner was new & didn't include the labs or radiology reports in her summeray or an opinion as to service connection, so I requested another one.

This time the VARO board specifically asked another, more experienced C&P examiner on a more probable than not bases, if the Cervical, Thoracic, Lumbar, Left shoulder, Left arm & neuromuscular disorder of unknown cause is service connected. After being examined again & all diagnostic tests reviewed, the examiners opinion is "ALL" issues could be more probably than not related to the 1968 auto accident as problems and complainst have been steady over the years and flare ups have caused incapacitations for this veteran. He includes, "I hope this answers the boards concerns."

The VARO sat on this favorable C&P exam & refused to send a copy. Without notifying me or my SO, Two months later the rater scribbles on a note to a paid consultant at another VAMC that they couldn't get the other VAMC C&P dept to send an opinion.

They got the consultant to write an IMO & it said since I had no health complaints until the 1990's none of the issues could have been service connected. Three days later the rater wrote up & sent a denial out.

I than went to my private treating MD I had for years & asked him to review his medical records on me & my c-file copy. He agreed with the favorable C&P examiners opinion.

Dr Bash's opinions were the same.

This judge included the favorable opinion in 1997, but only the "shoulder" in his statement. He completely left out the rest of the issues.

[CRYPTOTECH]

Your doctor said, "After being examined again & all diagnostic tests reviewed, the examiners opinion is "ALL" issues could be more probably than not related to the 1968 auto accident as problems and complainst have been steady over the years and flare ups have caused incapacitations for this veteran."

MMMM, that really makes my blood boil. B) Your examiner should have known not to use the phrase "could be." That is if he/she was really in support for your claim. The experienced examiners know that this phrase is a killer for claims while at the same time making the veteran feel like his/her opinion was favorable.

If he was HONESTLY for you claim and was experienced he would have stated "ALL" issues are more likely than not related to the 1968 auto accident.

Frank

[allan]

"Your examiner should have known not to use the phrase "could be."

So the Opinion is only good enough for the judge to give weight for the shoulder issue? Since the examiner stated, " I hope this answers the boards concerns", why didn't the RO rater follow the codes & send it back to the examiner for more clarity in the opinion?

Instead, the VARO rater made a false statement in the records after sitting on it for two months that they couldn't get an answer, than violated codes by not informing me or my SO that they were seeking an IMO instead of another physical examination at their C&P dept. They also violated codes by not allowing time to respond to the IMO they sneak in by me or my rep.

My Private treating Dr for years opined, he examined me & read the records in his chart from 1978 to 1990 & a large number of records from the VA.

He states,"I believe that the conclusion of the examining officer in 1997 is correct, to wit that I have a record of ongoing and increasing problems in the injured areas since the time of his injury and that these problems are on a more probable than not basis related to the accident".

He goes on to say," it is my professional opinion on a more probable than not basis that this conclusion is correct".

This second opinion hasn't even been considered by the RO's or the BVA since I submitted it in Dec, 2000. Now some weight is given to it, but only for the Shoulder?

Dr Bash's opinions were far more detailed medically. They first said he couldn't have read the entire C-file before he gave his opinion. He submitted two more opinions. Than they said I had to weight while they sent him the C-file to completely examine. This opinion he sent in after that starts out that he "again" read the c-file & his opinion is the same. Fully favorable & gets down & heavy in medical science why.

This one the judge not only didn't grant any weight to but didn't even list in his final denial.

Isn't it a bit odd how these(error's)conveniently happen?

I don't think it has anything to do with being a little weak on the opinion statement from the first opinion in 1997.

This judge didn't even order an opinion for all the issues this last Jan, just the shoulder.

I say it's, lets give him 20% for the shoulder, combine it with the 30% he already has & with VA math that will probably work out to 30%. Bingo! Job well done & maybe he'll go away.

[CRYPTOTECH]

Since the examiner stated, " I hope this answers the boards concerns", why didn't the RO rater follow the codes & send it back to the examiner for more clarity in the opinion?

I wish there was a code but I don't think there is one that requires the rater to send it back for more clarification. I believe it's just up to the raters discretion.

Frank

Edited June 8, 2009 by CRYPTOTECH (see edit history)

[CRYPTOTECH]

Your doctor said, "I hope this answers the boards concerns." He should have known that saying "could be" would not answer the board. The board wants to know if your conditions are more likely than not related or caused by your accident in service. They already know that they "COULD BE" or they wouldn't have scheduled an examination in the first place. They should fire incompetent examiners.

Do you see what i'm trying to get across?

Frank

"Your examiner should have known not to use the phrase "could be."

So the Opinion is only good enough for the judge to give weight for the shoulder issue? Since the examiner stated, " I hope this answers the boards concerns", why didn't the RO rater follow the codes & send it back to the examiner for more clarity in the opinion?

Instead, the VARO rater made a false statement in the records after sitting on it for two months that they couldn't get an answer, than violated codes by not informing me or my SO that they were seeking an IMO instead of another physical examination at their C&P dept. They also violated codes by not allowing time to respond to the IMO they sneak in by me or my rep.

My Private treating Dr for years opined, he examined me & read the records in his chart from 1978 to 1990 & a large number of records from the VA.

He states,"I believe that the conclusion of the examining officer in 1997 is correct, to wit that I have a record of ongoing and increasing problems in the injured areas since the time of his injury and that these problems are on a more probable than not basis related to the accident".

He goes on to say," it is my professional opinion on a more probable than not basis that this conclusion is correct".

This second opinion hasn't even been considered by the RO's or the BVA since I submitted it in Dec, 2000. Now some weight is given to it, but only for the Shoulder?

Dr Bash's opinions were far more detailed medically. They first said he couldn't have read the entire C-file before he gave his opinion. He submitted two more opinions. Than they said I had to weight while they sent him the C-file to completely examine. This opinion he sent in after that starts out that he "again" read the c-file & his opinion is the same. Fully favorable & gets down & heavy in medical science why.

This one the judge not only didn't grant any weight to but didn't even list in his final denial.

Isn't it a bit odd how these(error's)conveniently happen?

I don't think it has anything to do with being a little weak on the opinion statement from the first opinion in 1997.

This judge didn't even order an opinion for all the issues this last Jan, just the shoulder.

I say it's, lets give him 20% for the shoulder, combine it with the 30% he already has & with VA math that will probably work out to 30%. Bingo! Job well done & maybe he'll go away.

Edited June 8, 2009 by CRYPTOTECH (see edit history)