Rizzo V Shenseki

[Berta]

Re: this recent case-

Per Larry Scott:

In essence, the Court said that if the VA says their medical expert is a medical expert, then it is so ... unless the veteran can prove otherwise.

This is called the "presumption of regularity" doctrine ... which basically says that what appears to be regular is regular, with the burden shifting to the attacker to show the contrary

CAVC decision and more commentary at:

http://www.vawatchdog.org/09/nf09/nfsep09/nf091009-3.htm

In this case I actually feel the CAVC is right- but I sure dont think this is fair- This is why I stress to knock down the C & Ps, go line by line and do all you can to diminish the credibility of the VA examiner as to their ability to opine with any expertise.I did this many times for the many denials I got since 1995- and of course the best thing to do is the find out what credentials the examiner has (before the C & P if possible) and then get an IMO from a real expert.

Mr. Rizzo’s attorney argued to the Board that Dr. Deyton’s opinion was defective because “Dr. Deyton did not support his conclusion with expert analysis.” This argument, however, attacked Dr. Deyton’s opinion itself – not his qualifications to provide such an opinion. Absent some challenge to Dr. Deyton’s credentials, this court sees no reason to preclude the Board’s reliance on Dr. Deyton’s competence to supply a medical opinion.

As this court has often

[Berta]

Just to add-the Crux of the Court's logic is here:

"Title 38 obligates VA to “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim.” 38 U.S.C. § 5103A(a)(1). However, because VA does not require a claimant such as Mr. Rizzo to provide any evidence that would establish the competence of a VA examiner in order to substantiate a claim for benefits, the duty to assist does not come into play in this case.

The presumption of regularity also supports this court’s judgment. “The presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties.”

I feel this claim was worded wrong when it was filed- but ---

the Court is making a point we cannot overlook-

the VA is NOT obligated to provide claimants with proof of any opining examiner's expertise.

That is up to us to challenge.

In 2004 I had a DMII denial from a VA Endocrinologist.

Obviously she was of expertise enough to opine on a DMII claim.

But I took her opinion apart based on the established medical record and highlighted the one statement she made that supported the claim.

I also found her listed on Healthgrades- and although she was endocrinologist-she had done extensive VA medical work in a totally unrelated area.

At the same time I found a "diabetes expert" at an IMO site- but after checking him out- he had written a Diet book on obesity and really could not opine on the cardio/neuro evidence I had.

To make long story short-when I contacted Dr. BAsh-I now had a Neuro Radiologist who could not only opine on internal medicine-thus the DMII, heart disease etc, but also he had extensive expertise in as he said in the IMO 'interpreting MRis of thousands of patients" with the same neuro damage due to DMII that my husband had had.

The BVA gave his IMOs and also my short statement from a former VA Neuro all the weight I needed to combat their docs.

This case is saying take it or leave it-as to having a qualified expert opine on a claim.

But there has been testimony before the H VAC and there will be more- as to how unfair this practice is-

If more vets would write to the H VAC and to the Sub COmmittee Investigations/Oversight as to the lack of legal rights we have in getting a VA expert to opine on our claims- which costs vets Millions in IMO fees-and costs other vets who cannot afford IMO- denial after denial-

maybe this could eventually change.

That assumes however that a VA expert would consider ALL the available records and then give an unbiased opinion.

It does happen-vets do get favorable VA opinions that reflect their medical evidence, but the reality is-when you consider how many vets only succeed when they get a real doc's IMO-

which must weigh to the same level of any negative C & P opinion-for an award under Benefit of Doubt-it just goes to show that VA's so called experts are not experts in most cases at all.

A good IMO doctor will include with their opinion a Curriculum Vitae-

Make sure you copy it all and send it to VA with the opinion.

Edited September 14, 2009 by Berta

[Pete53]

Most VA C&P Docs are has been and quacks. If you are having a hard time with an opinion or linking your dx to Service you almost have to get a Doc to help you.

[broncovet]

Berta is right, and what we need is a "Presumption of Regularity" with Veterans. In other words, a Veteran who has served his country honorably for 4 years or more deserves to be taken at his word..in the absence of evidence to the contrary.

So a statement by the Veteran such as "I got wounded in the military but could not go to a medic because we didnt have one." should be accepted as fact unless the government can proove his statement is false.

Why would Veterans not be taken at their word? We are "officials" of the government..recruited and trained to serve the interests of the government. Why are rating specialists opinions somehow more valid than Veterans statements? Yes, while it may be true that Veterans have a "Vested Interest" in their statement, likewise rating specialists also have vested interest in their own bonuses, and sometimes delay/deny Veterans claims so they can get their bonuses.

[MDB1968NM]

Berta,

Way to go!  I truly admire your logic and tenacity in going through what you did! 

Why are rating specialists opinions somehow more valid than Veterans statements? Yes, while it may be true that Veterans have a "Vested Interest" in their statement, likewise rating specialists also have vested interest in their own bonuses, and sometimes delay/deny Veterans claims so they can get their bonuses.

Broncovet,

I am new to the whole VA system as I am still on Active Duty but can you direct me to where it states that "ratings specialists also have a vested interest in their own bonuses, and sometimes delay/deny Veterans claims so they can get their bonuses."

Like I stated, I am new and probably way to naive in this area, but wouldn't this be getting some major coverage in the news?  I don't disbelieve you but would like to know where I can find this out....inspector in me let's say.  If what you are saying is true then I am surprised that this isn't covered in the news...at least the stations that I have watched.  That is such a "conflict of interest" that someone should pursue that injustice!

[deltaj]

Berta,

Way to go!  I truly admire your logic and tenacity in going through what you did! 

Broncovet,

I am new to the whole VA system as I am still on Active Duty but can you direct me to where it states that "ratings specialists also have a vested interest in their own bonuses, and sometimes delay/deny Veterans claims so they can get their bonuses."

Like I stated, I am new and probably way to naive in this area, but wouldn't this be getting some major coverage in the news?  I don't disbelieve you but would like to know where I can find this out....inspector in me let's say.  If what you are saying is true then I am surprised that this isn't covered in the news...at least the stations that I have watched.  That is such a "conflict of interest" that someone should pursue that injustice!

It is my understanding that V.A. rating specialists have a production goal of making rating decisions on 6 V.A. cases a day. I believe you can verify this daily goal by calling V.A. Online there are court cases where V.A. has been sued by a V.A. examiner who failed to meet V.A.'s daily goals and who was fired for that. V.A. regulations require that a rating specialist review the record in its entirety before making each rating decision. How under those circumstances is V.A. supposed to meet its duty to assist each veteran in acquiring records in support of each claim? I suggest you spend some time on hadit reading horror stories of veterans whose claims have been delayed or denied as a result of V.A.'s tactics of overlooking evidence in the file, failing to obtain evidence a veteran had signed a release to get, and failing to read documents in a veteran's file. The result of V.A.'s production goals of 6 rating decisions per day per examiner is that V.A. lowballs ratings and then some veteran's fail to appeal resulting in finality of decisions.

Edited September 15, 2009 by deltaj

[deltaj]

Just to add-the Crux of the Court's logic is here:

"Title 38 obligates VA to “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim.” 38 U.S.C. § 5103A(a)(1). However, because VA does not require a claimant such as Mr. Rizzo to provide any evidence that would establish the competence of a VA examiner in order to substantiate a claim for benefits, the duty to assist does not come into play in this case.

The presumption of regularity also supports this court’s judgment. “The presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties.”

I feel this claim was worded wrong when it was filed- but ---

the Court is making a point we cannot overlook-

the VA is NOT obligated to provide claimants with proof of any opining examiner's expertise.

That is up to us to challenge.

In 2004 I had a DMII denial from a VA Endocrinologist.

Obviously she was of expertise enough to opine on a DMII claim.

But I took her opinion apart based on the established medical record and highlighted the one statement she made that supported the claim.

I also found her listed on Healthgrades- and although she was endocrinologist-she had done extensive VA medical work in a totally unrelated area.

At the same time I found a "diabetes expert" at an IMO site- but after checking him out- he had written a Diet book on obesity and really could not opine on the cardio/neuro evidence I had.

To make long story short-when I contacted Dr. BAsh-I now had a Neuro Radiologist who could not only opine on internal medicine-thus the DMII, heart disease etc, but also he had extensive expertise in as he said in the IMO 'interpreting MRis of thousands of patients" with the same neuro damage due to DMII that my husband had had.

The BVA gave his IMOs and also my short statement from a former VA Neuro all the weight I needed to combat their docs.

This case is saying take it or leave it-as to having a qualified expert opine on a claim.

But there has been testimony before the H VAC and there will be more- as to how unfair this practice is-

If more vets would write to the H VAC and to the Sub COmmittee Investigations/Oversight as to the lack of legal rights we have in getting a VA expert to opine on our claims- which costs vets Millions in IMO fees-and costs other vets who cannot afford IMO- denial after denial-

maybe this could eventually change.

That assumes however that a VA expert would consider ALL the available records and then give an unbiased opinion.

It does happen-vets do get favorable VA opinions that reflect their medical evidence, but the reality is-when you consider how many vets only succeed when they get a real doc's IMO-

which must weigh to the same level of any negative C & P opinion-for an award under Benefit of Doubt-it just goes to show that VA's so called experts are not experts in most cases at all.

A good IMO doctor will include with their opinion a Curriculum Vitae-

Make sure you copy it all and send it to VA with the opinion.

Berta, Could you please provide us with the full names on the case and the case number? Was this case in the U.S. Court of Appeals for Veterans Claims or was it a federal circuit case? The link provided to this case doesn't work. Thank you for all you do for veterans and their families.