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

[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.