What To Do When Va Selectively Ignores Evidence

[acesup]

In reviewing my only-partially-successful claims from 1974 and 2000, I have noticed something that played a part in their denials at the time.

I was initially 0, then 10% SC for lumbar spine back in 1974, but VA disregarded claims of sciatica/leg pain, etc and also never mentioned to me that their examination had revealed evidence of a wedge compression fracture at S5-L1. They also did not mention that they found scoliosis at lumbar and thoracic levels. (Up until ablout 2003, VA considered lumbar and thoracic as two separate segments of the spine for disability purposes. They only had given me SC for lumbar spine, never mentioned any other segments.)

In 2000, when I filed for increase, I was raised to 40% for "chronic lumbar strain with DDD". There were other findings, and again I had claimed lower extremity nerve damage, but they ignored all of these things. They shot down my claim that my SC spine caused problems in my C-spine, neglecting to consider or even mention the T-spine problems that their own records show.

Now, in my recent C&P, the N.P. ignored the fact that I am claiming certain issues secondary to medications for my SC spine. My claim does specifically state that certain things (OSA, ED, DVT etc.) are caused by known side effects of the medications I take for pain management, including long term use of gabapentin, narcotics, and trigger point and facet block steroid injections. During the C&P exam, I specifically told her of the side effects I have experienced, and gave her a stack of FDA drug data sheets with known side effects highlighted.

So, in her report, does she mention the drugs? Not no but heck no! She says stupid stuff like "OSA is not caused by or secondary to his SC disability because there is no link between lumbar spine strain and OSA". You get the drift, it is pretty much the same for each condition.

On my spine C&P, she claims I have these huge ROM readings without pain (Her numbers she reports would make a young ballerina envious of me). She never mentions the MRI's (only a few months old) I brought that list moderate stenosis, spondyolisthesis, complete effacement of signal in places (in other words, crumbling). She rejects my C-spine claim, saying it can't be caused by L-spine, never mentioning the problems in the thoracic segment.

Now, here's the question: Should I wait until I'm rated or denied, then use this (ignoring evidence in their possession) as part of the basis for appeal? They can't just keep on ignoring the side effects of drugs that THEY give me, can they?

Edited December 10, 2010 by acesup (see edit history)

[RedneckSavant]

I KNOW this is an old thread, but it's a recurrent issue.  I ran into it when, after sitting on a desk for 2 years, an RO sent me a letter giving me 60 days to clarify my NOD or it would be voided.

There's a point of law VA loves to forget that might help anyone who has this issue:

 

38 USC 7104 (a)  The VA has a duty to consider all possible claims for compensation raised by the medical evidence - including emails and secure messaging.  If the issue was not addressed in VA's SOC - then it was not considered, by law.  The BVA has been consistent in its findings that a DRO opinion stating that he has read the record DOES NOT suffice as consideration of evidence presented.  The specific evidence must be named and given appropriate weight in the statement of case.  For example:  It's not acceptable to just say 'have reviewed radiology reports',  the officer must address the MRI results that show spinal stenosis, and his reasons for or against attributing this to a service related injury and present disability.  The key point here is that this is an obligation that the VA incurs whether or not the veteran has claimed a disability that has resulted from the spinal stenosis.  

I had a closed head injury on AD - multiple fractures and a couple dislocations.  I have recurrent tinnitus and diminished cognition as well.  VA failed to recognize these as "post TBI symptoms not otherwise classified' when reviewing my chart.  That's a 60% the BVA will no doubt award when it lands on their desk.  The evidence is incontrovertible.  I wish it weren't, but it is.  The decision might not happen until long after I am dead - so please take this one piece of advice and implement it:  DESCRIBE YOUR CLAIM IN YOUR WILL.  Don't let the VA off the hook when you die.

[stf504]

On 12/10/2010 at 8:47 AM, broncovet said:

Again, Berta has given you good advice. Broken Soldier, tho also has a point. The VA is required to give a "reasons and bases" for a denial, AND my RO decision lists the evidence considered. If the evidence you consider compelling is not on the VA's list of evidence considered for your decision, then IMHO when you do resubmit this evidence, the VA would be required to give you an earlier effective date. Under the constructive notice rule of Bell vs Derwinski, the VA is assumed to have the evidence before them, even if they do not (that is, if they shredded it). If the VA fails to consider material evidence, that is a basis for CUE.

 

However, I do not recommend you take my advice. Instead read Attorney Katrina Eagle's advice and follow that, and you are likely to have a better result. Her advice on CUE, appeals, etc, is here:

 

http://knol.google.c...1#The_CUE_Claim

 

Correction: The link above about CUE is attorney John Forristal's and is not Katrina Eagle's, but Katrina was also a contributing author on this page.

 

 

Thank you. I needed to read this post. I checked my evidence section of the decision letter and there were several pieces of evidnce I submitted but not listed in the evidence section.

[brokensoldier244th]

Im not being facetious-

Rhetorical question:

How does one claim they are ignoring your evidence when all they have to say is that they considered it as part of the over all case, even if they didnt mention it specifically, it was still "looked at.....and taken into consideration....."

[Berta]

"During the C&P exam, I specifically told her of the side effects I have experienced, and gave her a stack of FDA drug data sheets with known side effects highlighted." They don't care abut that stuff- if you formally claimed these as secondary due to the meds you take, this will take an opinion-in most cases- from a real doctor.

In some cases a vet CAN succeed in proving meds have caused additional ratable problems.

A side affect on it's own has to be an actual additional disability that raises to a ratable level.Or even to "0" SC but definitely caused by SC meds.

"1974 and 2000, I have noticed something that played a part in their denials at the time."

This was prior to the VCAA. In the VCAA letter you received and they requested response, they should have specifically told you what evidence they needed.

"Should I wait until I'm rated or denied, then use this (ignoring evidence in their possession) as part of the basis for appeal?"

The rater might consider that evidence and maybe best to wait (as long as you are sure the VA has this information)

and I suggest you obtain copy of the results of the C & P exam ASAP to see what she really documented in it.

Do you have the complete narratives of the MRIs?

MRI narrative can certainly reveal a good disability picture but are often full of complex medical terms.

Edited December 10, 2010 by Berta (see edit history)

[Notorious Kelly]

What I did was file a NOD citing the specific evidence.

Now there will be no question as to whether they took it into consideration.

Good luck!

[broncovet]

Again, Berta has given you good advice. Broken Soldier, tho also has a point. The VA is required to give a "reasons and bases" for a denial, AND my RO decision lists the evidence considered. If the evidence you consider compelling is not on the VA's list of evidence considered for your decision, then IMHO when you do resubmit this evidence, the VA would be required to give you an earlier effective date. Under the constructive notice rule of Bell vs Derwinski, the VA is assumed to have the evidence before them, even if they do not (that is, if they shredded it). If the VA fails to consider material evidence, that is a basis for CUE.

However, I do not recommend you take my advice. Instead read Attorney Katrina Eagle's advice and follow that, and you are likely to have a better result. Her advice on CUE, appeals, etc, is here:

http://knol.google.c...1#The_CUE_Claim

Correction: The link above about CUE is attorney John Forristal's and is not Katrina Eagle's, but Katrina was also a contributing author on this page.

Edited December 10, 2010 by broncovet (see edit history)

[broncovet]

In answer to your question, I think the Veteran can work all three sides:

1. Try to get all your evidence considered before the RO decision is made. You can send in a 21-4138 and point out evidence you think the RO may overlook. You can also send in an IRIS email, asking, "Did the RO consider my evidence dated June 24, 2010 where the doc stated, ".........".

2. If you received your decision, you can ask for a Motion for Reconsideration (which could be faster than an appeal) if you think your evidence was not considered.

3. Finally, if the other two methods are unsuccessful, you can appeal the effective date, alleging that the RO failed to consider your evidence.

[broncovet]

Sometimes the VA is like a 4 year old and has to be told something over and over before they "get it". Remember, when you learned the alphabet, you probably had to repeat it several times before you "got it".

1. You tell the VA to not ignore your evidence.

2. After they ignore it anyway, you file a MFR reminding them they ignored your evidence.

3. After they ignore it again, you ask a judge to remind them in appealate review, that the VA is not free to ignore evidence.

Welcome to the VA hampster wheel..here you run for a while as I have been running on this hampster wheel and Im tired.

[jbasser]

Broncovet, for you my friend:

[Papa]

Hey J, at least give this little furry guy some credit, at least when he fell off the wheel, he jumped right back on. The VA would have just laid down and panted "screw the Vet, I get to him later

Papa

[Vync]

Acesup,

I think you got one of the worst C&P doctors ever. I hope everything works out for you.

[john999]

If you submit material evidence in a claim and the VA neither lists it or discusses it you may have the basis of a CUE if the evidence that is excluded would have had a significant affect on the outcome of the rating decision. This is where it gets tricky. "Reasonable mind" (meaning the VA) have to come to the conclusion that your excluded evidence was really essential to the rating decision one way or the other. I, myself, am in this boat right now with my CUE. In your case I would wait until I get the decision and appeal it on the basis that they did not consider your evidence. Cue's have to be on final and unappealed decisions.

[acesup]

Thanks all for some great and thoughtful input.

Berta,

I did get a copy of the C&P notes and opinions, the NP never even mentions medication side effects one time for any of the items that I'm claiming. However, on the other hand, I do have nexus letters from real M.D. specialists that do address known side effects of some of my meds, and the likelihood that my claimed conditions (including DVT/PE, OSA, ED) are caused by them. These opinions range from at least as likely 50/50 to more likely than not.

For OSA I have a sleep specialist M.D. and my private PCP M.D. saying "more likely" due to lumbar spine condition AND side effects of meds

For Convulsive Tic PLMD sleep specialist says more likely due to lumbar pain and meds

For bilateral DVT and PE I have a Pulmonary Medicine professor/M.D. IMO saying "as likely as not" due to combination of lumbar pain and meds effects on me after an appendectomy

My own Pulmonary M.D. opined "more likely than not" on the same factors as above.

For ED my private PCP M.D. says "more likely than not" due to lumbar pain and meds

So, I guess I'm hoping that the rater considers everything, even though the C&P NP did her best to sound like anyone not agreeing with her is a dummy.

The NP seemed to go to great lengths to either give opinions that contradict my claims, or to say "to opine would cause me to resort to mere speculation" followed by basically then resorting to mere speculation by giving an opinion of "not due to". It does not bother me that a VA C&P examiner might disagree with SC for any condition, but this woman seemed hellbent on just totally trashing my claim. I'm baffled that she would laboriously ignore any and every cause that I have claimed, while snatching at any possibility that would shoot me down. I think in the end, the rater is likely to understand that this woman has some sort of problem, and on that day she tried to take it out on me.

As far as the MRI's and Radiology Reports, here are the results from the latest ones:

L-spine MRI 10/19/2009 (civilian)

Impression: 1. At L3-4 mild DDD w disc bulge, mild to moderate posterior facet hypertrophy produces moderate spinal canal stenosis. 2. At L2-3 and L4-5, mild DDD present with mild disc space dessication with posterior facet hypertrophy greatest at L4 level. Both of these levels demonstrate mild generalized disc bulging.

L-spine X-rays Aug. 2010 (C&P exam)

There is subtle spondylolisthesis L4 on L5 a few millimeters. Schmorl's node inferior endplate L3. Minor to mild marginal hypertrophic spurring in general. Minor anterior wedging T12 and L1 possibly normal variant or from prior trauma, correlate with history.

T-spine MRI 11/23/09 (civilian)

Impression: Multilevel spondylosis, with a posterior central protrusion or contained extrusion at T6-7 and a combination of diffuse posterior protrusion and probably marginal spurring at the T8 level. Arthritic foraminal narrowing primarily on the right at T7 root level. Mild cord impingement centrally ar T6-7 level without significan demyelination.

C-spine MRI 5/20/09 (civilian)

C3-4 Hypertrophic degen. changes present within facets on left. Small disk bulge/osteophyte complex slightly effaces thecal sac anteriorly. Moderate neural foraminal narrowing present.

C4-5 Small broad-based disc bulge/osteophyte complex slightly effaces thecal sac anteriorly. Mild to moderate bilateral neural foraminal narrowing present w/ mild canal stenosis seen

C5-6 Hypertrophic degen. changes within facets. Moderate to large sized broad based disc bulge/osteophyte complex displaces the cord posteriorly and there is complete effacement of CSF signal. Moderate canal stenosis with mild to moderate bilateral neural foraminal narrowing.

C6-7 Moderate sized broad based disc bulge/osteophyte complex partially effaces thecal sac anteriorly. Mild to moderate bilateral neural foraminal narrowing with mild canal stenosis seen.

C7-T1 Small posterior disc bulge/osteophyte complex mildly effaces thecal sac anteriorly

C-spine X-rays 8/16/2010 (C&P exam)

Pertinent findings: Exam consists of AP and lateral views C-spine. Normal AP alignment and lordotic curvature. Disc spaces appear adequate. Vertebral body heights appear adequate. Minor marginal hypertrophic spurring. Ossification longitudinal ligament at C2-3 and C3-4.

Impression: minor spondylosis as described.

Now, here's the kicker; the C&P NP reported some amazing ROM numbers. I mean, by her estimates, you would think I probably left the VAMC doing handsprings and backflips and headed out to a gymnastics meet, then took off to a contortionists' convention.

C-spine ROM

Flexion: 0 to 40 degrees

Extension: 0 to 22 degrees

L lateral flexon: 0 to 12 degrees

L lateral rotation: 0 to 45 degrees

R lateral flexion: 0 to 20 degrees

R lateral rotation: 0 to 45 degrees

Evidence of pain on active ROM? Yes

Pain following repetitive motion: yes

Additional limitations after 3 reps? No

Thoracolumbar ROM

Flexion: 0 to 84 degrees Great googly moogly, I couldn't do 84 degrees when I was born!

Extension: 0 to 20 degrees That ain't happening, either.

L lateral flexion 0 to 18 degrees

L lateral rotation o to 30 degrees

R lateral flexion 0 to 26 degrees

R lateral rotation 0 to 30 degrees This NP is out of her mind, she must be writing herself some good pain med scrips.

Evidence of pain on Active ROM? NO

Pain following repetitive motion? NO

Additional limitations after 3 reps? NO

Now you'll understand why I am painstakingly putting together a rebuttal of this woman's C&P exam and opinions; she is absolutely out of her mind. I hope to get a call soon saying she accidentally mixed up another C&P exam with mine, and is going to fix it. However, the sound I ain't hearin' is the phone that ain't ringin'! So, I will gather all kinds of documentation to prove that she is an incompetent witch.

If the rater really reads her opinions and speculation, the weighs it against my evidence, though, maybe I won't need to worry about a thing.

[Berta]

"to opine would cause me to resort to mere speculation"

The BVA through out a speculative opinion on my claim.

I had 3 IMOs that overcame that opinion and a prior lousy C & P opinion.

It sounds to me as though your IMOs are strong on many points but do you have an IMO specifically addressing these issues in the C & P exam?

What was the claim for that produced this C & P?

Do you have a proven inservice nexus for the claim?

"If the rater really reads her opinions and speculation, the weighs it against my evidence, though, maybe I won't need to worry about a thing."

Your evidence has to be of equal weight and best for it to come from a doctor.

[acesup]

My claim filed in 2007 was for

1) sciatic and other lower extremity nerve disability directly secondary to SC lumbar spine (she does concede this after NCV/EMG although she purposely states the onset was 2008. I can prove that I've been trying to claim it since 1974, again in 2000, so I will quickly expose her for the liar that she is on that statement.

2) OSA secondary to SC lumbar spine medication side effects plus the lumbar DDD, stenosis, etc. causing pain that causes me to sleep on my back, which promotes/aggravates OSA. I have two nexus letters, one for sleep specialist/pulmonary specialist M.D., one from Family Medicine/Internal medicine private PCP M.D. Sleep apnea and sleep disorders are known, documented side effects of gabapentin and other drugs prescribed to me for my SC spine.

3. ED secondary to SC lumbar pain and meds. Have fairly solid nexus letter from my private PCP M.D.

4. TDIU -- I have been on SSDI since 2000, primarily for spine problems and related nerve problems. VA VR&E deemed me "Unfeasible for Employment" in 2003, again in 2009.

This claim got lost/tossed/shredded at Houston VARO, was re-filed in 2009 under the VA fast letter for shredded claims.

My claim filed in 2009 is for:

1) Residuals of bilateral Deep Venous Thrombosis w/ bilateral Pulmonary Emboli secondary to medications for my SC lumbar spine. Residuals include permanent surgically implanted Inferior Vena Cava Filter and daily Warfarin therapy (which would fit the 60% rating) but more recently I was diagnosed with Chronic Pulmonary Hypertension secondary to Chronic Pulmonary Thromboembolism, which is an automatic 100%.

I have very two very good nexus letters from pulmonary specialist M.D.s. This is an unusual case but DVT and PE are known side effects of corticosteroid injections and other meds I have been prescribed for my SC lumbar spine.

2) Dysthymia/major depressive disorder secondary to SC lumbar spine and meds---the C&P for this seems to be in my favor, we shall see. C&P psych also diagnosed Chronic Pain Disorder. Gave GAF of 50. Of interest, my 1974 MEB separation physical notes depression and sleep problems,

3. Severe PLMD (convulsive tic) secondary to SC lumbar spine and meds. Have a great nexus letter from sleep specialist M.D. blaming meds and chronic pain for this condition.

4. Service connection of C-spine disability, with nexus letter from chiropractor stating that the same injury that damaged my SC lumbar spine is more than likely to have simultaneously injured the thoracic and cervical spine. Evidence of T12-L1 compression fracture (which is corroborated by C&P X-rays) supports this theory in that severe trauma can cause scoliosis (which was documented post-injury in 1974 and since), which has affected entire spinal column. Other evidence in my favor includes complaints in service of cervical and occipital spine pain and mid-spine pain after the initial injury.

I am hopeful that even though the C&P NP has basically tried to destroy virtually my entire claim, I will be awarded ratings at least for some of this. My best bets are, in order, the lower extremity nerve stuff; the OSA; the Depression; the DVT/PE.

Anything they shoot down I will absolutely appeal and pursue relentlessly, unless and until I am rated TDIU or 100% schedular P&T, at which time I'll become a lot more flexible. I feel like the USAF and VA have played games with my life for 36 years and called all the shots up until recently; from now on, I may never win one more percentage point, but I refuse to just stand there with hat in hand hoping some bureaucrat (or some incompetent little C&P Nurse with an attitude problem) will just smile upon me and throw me a bone, I want to make sure that when I check out, (hopefully not too soon, though) my wife is provided for with at least some insurance and some pension.