Does Anybody Recall A Regulation Or Court Decision?

[jlshand]

Thought I had seen somewhere in my research that the VARO's are supposed to give precedence to Independent medical Opinions over VA employed MD's

Might have been in a BVA decision or even someone on this board.

Does anybody recall seeing something to this effect?

[jlshand]

In a past RO denial of mine the adjudicator stated in reason & bases :

THANKS CARLIE, DUMB ME STILL HAS NO IDEA WHAT THIS IS SAYING BUT THATS OK< THANKS FOR TRYING

"We do not find her testimony as to the incurrence of inservice injury to be of sufficient probity to weigh in equipoise (balance) with medical evidence prepared contemporary to the time frame in question."

This was actually the VA going against their own VA C&P doc's info.

It took a few years to beat it down, but the truth finally rose to the top as it usually does if you hang in there.

Hope this helps someone.

carlie

[jlshand]

See if your situation resembles that of the veteran in Sklar v. Brown, U.S. Court of Veterans Appeals, No. 91-1586, in a decision dated 5-18-93. In that case, the Court held that if there is a diagnosis by a specialist, and the only evidence against the veteran claim is a contrary opinion by a non-specialist, then the findings of the non-specialist should carry little weight.

We've argued that my husband's C & P exam was flawed, and the denial based on that exam should be thrown out. The exam was performed by a non-Board certified internal medicine doc whose opinion was given more weight than my husband's personal Board certified internal doc and a non-VA Board certified surgeon who performed my husband's carpal tunnel surgery.

Vicki, that must be the one I thought I recalled. Also found a BVA opinion that reversed a VARO decision which supported the VA MD opinion over the vets private Md. Let me know if you need the specifics and thanks

[Guest Morgan]

Contemporary in this context is a synonym for contemporaneous (a descriptive word used in the regs referring to C&P exams). It means existing, occurring, or originating during the same time.

Please post the info on that BVA case you mentioned.

[vaf]

Ditto here, I'd like to see the BVA case. I'm getting our stuff together for rebuttal.

In the Sklar case, the veteran's personal nonspecialist doctor (whose expertise was in arthritis and rheumatology) wrote an opinion that contradicted the VA's specialist's opinion (who was a clinical psychologist) regarding PTSD. If it works to the VA's advantage, we will argue that it should also work to the veteran's advantage.

Here's Sklar v. Brown.

http://webisys.vetapp.gov/isysquery/irl17ca/1/doc

[vaf]

One other thing.

The exam is to be thorough AND contemporaneous. In order for the exam to be thorough, it needs to be conducted by a specialist in the condition being evaluated, according to the guidelines listed in the C & P exam. The examiner must also, if the regs are followed, have the veteran's file in hand, and also have already read about the veteran's medical history regarding the condition being evaluated. This, of course, is hardly ever done, but veterans normally don't throw the BS flag on exams like this. I'm going to throw one, though.

Like I said, if it works to the VA's advantage, I'm going to let them know we're aware of that case and any others where they seized the advantage.

[Guest Berta]

Vicki- you are absolutely right!

I think I am a good example---I thought the recent movement at the VARO was over my I-9- Today I realised it was because I had sent a formal SSOC response prior to sending the I-9-

When the new DRO denied me in Sept -my vet rep asked her point blank why because my IMO from Dr. Bash clearly supported my claim-

she said she was unable to understand medical information in the IMO -so she denied! (These are the people who control us?)

My vet rep then suggested the VA get a med opinion-

I wish my vet rep had called me because I would have fought that idea.

The DRO has my email addy and phone number but she never called me either on this.

The VA then again denied the claim due to an unusual statement the VA doc made-I pounced on it-

but the VA's IMO doctor also supported the claim.Yet I had to explain to VA how-

BUT -getting back to what you said-

My IMO doc had the veteran's complete VA med recs,EHOs, MRIs, past SOCs, FTCA stuff, award letters etc- the whole shibang. He clearly stated his professional expertise that allowed him to fully interpret the MRI results and the other stuff.

The VA doc admitted-in her opinion- to only having a few blood chem reports on the veteran -nothing else at all--which she based her opinion on---she didnt even know the VA had caused his death under 1151,that I was awarded wrongful death, and that a full autopsy had occurred whch supported my FTCA charges.And which now supports my DMII claim as Rod had end organ damage consistent with untreated advanced DMII.

If the VA's opinion- as you said- is NOT based on adequate records and documentation- it is

not a probative medical opinion. Demolish it! Dont be afraid to tell them how it is!

I told them in my SSOC response that this type of 'VA medical opinion'was as "substandard" as the VA finally admitted Rod's VA medical care was(per VACO OCG FTCA documentation which I attached ) and that the opinion-, based on a few records, from 6 years of care ,is exactly why Rod is dead, as VA doctors ,for 6 years, never assessed the whole picture until 1992, and then they had to cover it up.

No one should ever accept an unacceptable VA so-called "expert" med opinion if it does not adequately reflect that the VA doc read the med recs.

What gets me is that these C & P docs are also docs who treat you-

is their medical treatment as deficient as their unwillingness to read the whole med picture for a C & P exam?