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

[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

[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