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?

[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

[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

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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