Success !

[Hoppy]

This is a success story. However, I am posting in claims and research because I have a lot more to say about the process than just a statement that we won. Also before I get started and bury a question I have in what will be a long post I will ask the question now.

Does anyone know of the process for having a compensation and pension examiner reprimanded or barred from performing compensation and pension examinations? The compensation and pension examiner wrote a report that was adversarial. He wrote an opinion that stated that the veteran's symptoms in the military were caused by a nonservice connectable condition that predated service. His opinion directly contradicted as existing opinion of record. More importantly it is an accepted medical principle that the cause of the veteran symptoms in the military cannot be attributed any single etiology. There were other errors and presumptions made by the clinician.

The fact that a veteran has the ability to rebut or otherwise present evidence in support of the claim does not excuse an individual who is bound by professional standards of doing a professional job. A labor law attorney I previously worked with presented this argument against a professional involved in a workers compensation law suit. I am very interested in pursuing a complaint against the clinician. If you have any ideas please advise me. If this were a workers compensation claim or civil claim the complaint will be filed with presiding judge.

Now for the success story and how the long battle unfolded.

When I first met the veteran he was homeless and living in his car. I tried to get them to go to the VA hospital and see a social worker. As time went on I realized that he was diagnosed in the military under the DSM II with a non-service connectable personality disorder. After reading the service medical records it was obvious to me that under the DSM-IV he would have been diagnosed with a service connectable panic disorder. For the purpose of obtaining a compensation and pension examination we obtained an opinion from the primary care Dr. The primary care Dr. reviewed the service medical records and determined that his current diagnosis of panic disorder was related to the symptoms in the military. This should have been sufficient to get a compensation and pension examination. Unfortunately, the claim was denied without any exam. This forced me to obtain a report from another clinician. I wrote a brief summary of the history of the claim and sent it to a qualified specialist who worked as a staff clinician at a VA hospital. Fortunately this clinician became interested in the case and reviewed all the records. The clinician wrote a very favorable and strong report.

The new report did in fact cause the regional office to schedule a C&P exam. Unfortunately, the C&P examiner made some wild guesses about the nature of the veteran's lifetime battle with panic disorder. What is most bothersome is the report took advantage of speculative theories and flawed conclusions based on invalid experimental designs. The report ignored any symptoms that could be explained by individual differences of symptoms that are known to occur in service connectable conditions that had been diagnosed by treating clinicians and are a matter of record. The most apparent aberration was the problem of assigning a single etiology to the veteran symptoms. Had the etiology been correct the condition would have been considered to have existed prior to entry into the military. The manner in which this was stated gave the false representation that an unconfirmed theory had somehow been validated. I'm of the opinion the examiner did everything he could to write an adversarial report that would result in a loss of benefits. It appears that the DRO gave weight to the opinion of the examiner who was the staff clinician at a VA hospital rather than the C&P examiner.

The good news is that a DRO service connected the veteran at 50%. I have not seen the decision yet. However, I am very sure that the award was based on the report I obtained from the VAMC staff clinician. We do plan to file for an upgrade. The veteran has not worked in four years and has been receiving Social Security for the panic disorder for the last two years.

Edited June 1, 2010 by Hoppy

[vaf]

Hoppy, my thought is to file a complaint with the state medical board -- I don't think you stated what the staff clinician's particular credentials were, but I would file a formal complaint with the professional credentialing organization that issued that individual's credentials. That is, if you can convince the Patient Advocate's Office at the VAMC to tell you what they are and where that individual earned them.

Also, if the clinician's bogus report rose to the level of negligence or a clear violation of medical standards that resulted in a denial of care, the wrong type of care, or in substandard care that damaged the veteran, I would consider filing a tort claim and an 1151 claim, if you could back those up with medical evidence.

You can either embarrass the hell out of them, hit them in the wallet, or both to make your point.

[Hoppy]

Here is an update.

I read the decision and the DRO provided a recap of both the report I obtained from the VAMC and the report from the C&P examiner. He made a statement that the report that was provided by the VAMC clinician included full supporting logic. There was no explanation as to how the DRO interpreted the C&P exam. I think this is a way of politely saying that the C&P was BS.

As far as the 50% rating goes there is plenty of room to appeal. The C&P examiner determined that the veteran was not employable. The service officer did not think that the C&P examiner properly supported this statement and that is why the people who rated the claim lowballed the rating. The rating was based on the VAMC clinical records and the C&P report. This created a huge hole in the process through which this claim fell.

A complete C&P was not provided. The C&P examiner was only asked to answer several questions. VAMC clinicians do not write their reports for rating purposes. The histories they take are very limited and shallow. The C&P examiner used a report that was not a standard worksheet. However there was a section with the heading “HISTORY”. The first word in this section was “presently”. How can you take a history that starts with the word presently. Needless to say no history was taken. The standard work sheet requires that when the issue is initial service connection there must be a complete history pre-service, in-service and post service.

The lack of this history caused the report to be fatally flawed. The reason for this is because raters are required to consider longitudinal evaluations of symptoms.

When evaluating a mental disorder, consideration shall be

given to the frequency, severity, and duration of psychiatric

symptoms, the length of remissions, and the Veteran's

capacity for adjustment during periods of remission.

What was unknown to the rater is the duration of symptoms. There has been no significant remission in the last three years. There is a question that needs to be addressed which involves a rater’s ability to rate a claim in the absence of a description of the specific symptoms, It can be argued that the phrase used by a clinician referring to “mild panic attacks” is not sufficient for rating purposes.

What would be more accurate is an explanation that the panic attacks totally incapacitate the veteran for ten minutes and stop any productive work. There after cognition and fatigue problems can last for 24 hours. If the attack occurs at night a entire night of sleep is lost. Thus, a person with three so called “mild” panic attacks could wind up losing three nights a week of sleep.

The report contained no accurate description of symptoms of depression. Depression could be feeling down and confused. In the case of this veteran he went through a major depressive episode during which his life plan was to live in a van between a river and a local Island and collect cans until he died. The previous year prior to the major depressive episode the veteran’s SSA records shows that he earned $16,000.00. During the MDD episode the veteran had no plans to seek treatment, compensation or employment. He talked about conditions that would cause him to commit suicide. He told me if his something came between him and his dog he would commit suicide. He will not discuss suicide with treating clinician because he is afraid they will give him a 72 hour lock down. His dog would be stuck in the truck the entire time. None of this is known to any clinician. If they had given him a regular C&P they would know this because I would go to the exam and tell them.

I went to the bogus exam with a letter that would have explained what I have seen and heard the veteran tell me. I have personally been monitoring this veteran since the time he was working. I was monitoring him because even though he was working he was homeless living in a car. I gave him tools in 2006 that were required for a job he got through a temp service. I know more about this veteran than his wife and son. I am what is called under labor law an independent and objective witness. I receive no compensation. The C&P examiner would not talk to me or take my letter. He said that he did not need to do this because it was not a standard exam.

They caught me by surprise. We had the CP exam and were told the claim would be rated in September. I was working on getting a new report from the VAMC clinician which included my observation to submit before it was rated. They rated the claim three weeks later. There are a lot of questions they will need to deal with in the future that were omitted because they rated the claim without a standard C&P exam.

They should make it an absolute requirement that if service connection is awarded without a standard C&P exam then the claim must go to a standard exam prior to rating. Assuming that VAMC treating clinicians collect proper histories for rating purposes is just another way to delay a claim. It only benefits the VA,