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Berta

Mariano V Principi

Question

I posted this link for LZ Jump today but this discussion bears repeating here:

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Full Version: Doctor Shopping Or Fishing Expedition

hadit.com Veterans Forum > General VA Claims Questions & Information > (VA Claims Research) Veterans Affairs Claims and Benefits Research

carlie

Jan 6 2009, 11:31 AM

Does someone have the rule handy on what we refer to as

"Doctor Shopping or Fishing Expedition".

Thanks for any and all help.

carlie

Berta

Jan 6 2009, 12:02 PM

Carlie- Mariano V Principi was supposed to stop doctor shopping and fishing expeditions.

I used Mariano and put this BVA citation into my AMC response:

"The BVA has referenced a holding in Mariano thus:

“The probative evidence in this case demonstrates that it is

at least as likely as not that the veteran's hypertension

developed as a result of his service-connected diabetes

mellitus. Significantly, there is no probative evidence to

the contrary. See Mariano v. Principi, 17 Vet. App. 305,

312 (2003) (holding that the Board is not permitted to seek

additional development for the purpose of obtaining evidence

against the claim).”

from: http://www.va.gov/vetapp08/files3/0820535.txt"

The BVA threw out the first VA doc opinion against my claim and ordered a New opinion-

I had raised Mariano in my I-9. But I raised this case again for the AMC as I was worried that the "new" VA opinion could still incorporate the old opinion which both Dr. Bash and I successfully knocked down.

Also the VBM 208 edition makes this point on page 105:

"If the veteran has submitted a private opinion in his or her favor,the VA may grant the claim without developing negative evidence."

I helped a vet with no rating at all get 100% TDIU in four months due to his extensive psychiatric rcords from a private physician.

I expected that VA could have awarded on my first 2004 IMO or at least on the second one from 2006. The BVA read these for the first time in late September and an examiner- hopefully read them during the recent AMC medical review.

I feel that if the VA has enough info to justify an award- whether from a private doctor or VA doctor- the claim should be awarded.

Even if the claim has probative medical evidence from a private doc, then any negative opinion from VA could be challenged and if these opinions are of equal weight-the vet should still succeed under Relative Equipoise.

I felt that the VA was seeking a "new" opinion in my case because their old opinion wouldnt stand up to Dr. Bash's.

But I also feel that if all of my evidence was properly considered -to include my FTCA stuff- the new VA opinion should award the claim.

carlie

Jan 6 2009, 09:46 PM

Thanks Berta,

carlie

Rockhound

Jan 7 2009, 12:09 AM

Is requesting a C&P exam the same as Dr. Shopping if there is sufficent medical evidence to support SC or even if a C&P examiners opinion differs from the other medical evidence in support, does it mean that the evidence is in relative equipoise, provided they do not find the prior medical opinion was made in error?

Rockhound Rider cool.gif

cowgirl

Jan 7 2009, 12:51 AM

Are you having Gimli help too? works for me! smiles.

Good question, but what I understand VA may require a C&P exam at any time, I can't refuse a C & P exam or reexamination. Even if I feel I've provided more than adequate evidence from private physician sources, VA will could request a C & P exam by one of their own examiners. Then I read that failure to report for such exam may result in an interruption or even termination of benefits.

Not sure if relative equipose is applicable until applied AFTER the va goes through their determination steps.

Cg'up2009

QUOTE (Rockhound @ Jan 7 2009, 12:09 AM) *

Is requesting a C&P exam the same as Dr. Shopping if there is sufficent medical evidence to support SC or even if a C&P examiners opinion differs from the other medical evidence in support, does it mean that the evidence is in relative equipoise, provided they do not find the prior medical opinion was made in error?

Rockhound Rider cool.gif

Rockhound

Jan 7 2009, 02:08 AM

That's basically what I am saying. Knowing that you must attend a C&P exam and the examiner gives a differing opinion/diagnosis, but fails to support his diagnosis by finding/showing the prior diagnosis was made in error, does this mean that the evidence is in equipoise? You have one opinion for one diagnosis which supports SC and you have another with a differing diagnosis that doesn't support SC wouldn't this one for and one against mean that the decision should be in favor to SC for the Veteran?

Without the all important statement from the differing opinion/diagnosis that the prior opinion/diagnosis was made in error, then wouldn't the evidence be in equipoise?

Rockhound Rider cool.gif

cowgirl

Jan 7 2009, 04:18 AM

To the Rock'ster! Found this great discussion in hadit archives. hope it helps.

cg'up2009

http://www.hadit.com/forums/lofiversion/index.php/t948.html titled 'A change in diagnosis in a orginal claim'

Pete53

Jan 7 2009, 05:46 AM

Its strange that the VA can call a Veteran on Doctor shopping but their hired guns don't count.

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