Fighting Bad C & P Exams

[pacmanx1]

Before a veteran files his or her claim for disability, it would be best for them to seek treatment that would establish their medical condition and get a diagnosis. Getting IMOs and IMEs can be quite expensive but having current medical treatment could really help.

A veteran should never let the C & P examiner's medical opinion be the only medical opinion in his or her VAMC treatment records. I agree that IMOs and IMEs are worth the cost but if the veteran can get this from their treating doctors then even if the local VARO denies their claim or low ball their claim, the veteran should win his or her claim on appeal.

Always keep in mind that the local VARO will always force claims to go to BVA. It doesn't matter how much evidence a veteran has in his or her file. If the Rater, DRO, and or Supervisor overlooks or ignores the pertinent evidence then the only thing a veteran can do is file an appeal.

Hope this helps

[acesup]

Thanks Pete, I hope to someday soon be able to comment in-depth on this subject.

Long before my C&P exam for secondary SC of a number of disabling conditions (OSA, lung & heart damage from bilateral DVT/PE, E.D. and a few others) caused either by pain or medications for my SC lumbar spine, I requested referrals, diagnostic tests, etc. that would prove these conditions. I then discussed these conditions with the appropriate doctors/specialists, and the likelihood of them being secondary. I then put together a collection of medical evidence to support my theories of secondary SC, and drafted the opinion (nexus) letters for each.

When I went back to each doctor, I would do the following: bring up the previous conversation, offer them my SMR/STR and private medical records and all of my evidence,, hand them the letter(s) and ask if they agreed and would do so in writing; and made sure to explain the reason I needed such letters, as well as the importance of the phrasing for as likely as not or 50/50, more likely than not , greater than 50% probability, due to, etc.

Here are my results:

Success rate for getting signed opinion letters: 100%.

Number of opinions that cost more than a regular visit: 0

Of these letters, on all but one, the doctor selected the "more likely than not option". I had letters from my regular private PCP for OSA and ED. I had letters from a sleep specialist/lung specialist for OSA and convulsive tic. I had a letter from the pulmonary specialist that treated my DVT/PE. All of these were "more likely". I got one "at least as likely as not", that was from a lung specialist doctor who is also a medical professor at one of the top medical universities in the world.

I have to give credit to fanaticwife and this site, VBN, and VAWatchdog for a number of vital tips including: 1. Do not tell the receptionist or anyone else that you want a doctor's opinion. Nothing good can come of that. They will head you off at the pass. When they ask what is in the folder or notebook or whatever, just say it is some medical info you want to discuss with the doctor, or better yet, stack it in between two sections of a newspaper. If the doctor doesn't want to sign it, he/she should make that decision, not some desk jockey. 2. Feel the doctor out early on in a visit or two BEFORE you spring your opinion letter on him. If he thinks you're out of your mind, try to find what he thinks could be the cause(s) and look for how that information connects with your case. 3. Be really polite. 4. Have the records he/she is signing that they've examined, and have logical, sensible medical evidence from a recognized source or publication. Make sure you have read it and understand it so you can explain it in 100 words or less. 5. Make up your opinion letter with either check blocks beside the different levels of "due to", or better yet, have a copy with each opinion, and find out which one he/she will sign.

All of this is assuming, of course, that any condition you are trying to get service connection for can actually be realistically, possibly, logically connected directly or secondarily to an active duty injury/illness or the meds or consequences of it. Theories won't work, you need evidence, and the opinion letter needs to be supported by facts..

Now, there are some people who can do good research and write a good letter, and there are those who can't. If you can't, GET SOME HELP. Likewise with getting your presentation skills together before you talk to the doctor. The doctor probably isn't going to sign some off-the-wall crap that reflects poorly on his/her professionalism, good judgment, and general intelligence level. If you're trying to connect diabetes to a stubbed toe, it ain't happening. If you're a nervous wreck, or if you simply don't know what you're talking about, you may have a problem getting anything but a polite brush-off.

I've spouted off all of this, and I'm sure it sounded in-depth about 200 words ago, BUT...

I have great opinion/nexus letters from private doctors. I had a lousy C&P by a pathologically dishonest, hateful shrew of a professional VAMC rectal digital diver, a.k.a. N.P. Cratchitt (not her real name, and you wouldn't want me to spell out what words come to mind when I think of her). I'd bet she was a Marine nurse, and the Marines in her unit would rather sandpaper a wildcat's arse in a barroom toilet stall than fall under her evil gaze.

Most of what she "opined" was after the phrase "to state an opinion would require resorting to mere speculation". Funny, mere speculation must be kinda like a mental laxative for her; after she put that phrase down each time, she didn't have any problem speculating a LOT, to the point her mushy speculating seemed to turn into a cesspool of opinion, of which she offered none in my favor, really.

I am waiting with bated breath to see what happens, how much weight is given to her opinions versus those of actual doctors. Supposedly, if the 800 number folks have it right, my stuff finally is out of Development and in the Decision phase now.

Once I've got the results, I will get more detailed in how my evidence weighed against her speculative opinion spewings.

[Berta]

You gave some really good advise here-this s different than what I posted as to Getting an IMO in the IMO forum but that advise was geared to those who need a paid expert opinion. Maybe all this should also be put into our IMO forum.

Great stuff.THANKS!

“Most of what she "opined" was after the phrase "to state an opinion would require resorting to mere speculation". Funny, mere speculation must be kinda like a mental laxative for her; after she put that phrase down each time, she didn't have any problem speculating a LOT, to the point her mushy speculating seemed to turn into a cesspool of opinion, of which she offered none in my favor, really. “

“Mere speculation” has become a VA mantra in the last few years.The BVA disregards speculative C & P statements. They have no medical weight at all.

In my opinion, these “mere speculation” statements mean the C & P doc didnt read the entire clinical record, or they simply didn't understand the medical aspects of the disability, or lacked the needed expertise in the field of the specific disablity - Or all of that..

I had 3 solid IMOs from real docs at the BVA along with my own medical rationale and I used my past VA matters as proof of my medical background.They threw out a PA's C & P as he said he would have to “resort to speculation” to opine on a claim that was clearly substantiated by all of the Medical evidence and the IMOs.

These statements are geared in C & Ps to pass the buck as they know these statements can either set up a long remand or if the rater buys what the C & P is selling- the rater can use the speculative nature of the opinion to deny the claim and then not properly weigh other medical evidence under the BOD regs.

[Berta]

Another thing-

if a VA doctor says they would have to resort to "mere speculation" to medically opine in a C & P exam-how the heck do they give their patients proper care?

I personally think some of these C & P opinions reveal negligence or complete lack of medical knowledge.

[handler]

Berta,

I find it disturbing that for a exam for PTSD you need to have a psychiatric physician but for IHD the VA can use a Nurse Practitioner. Now I have nothing against NP's but this just seems wrong. They are using the opinion of a NP over surgeons, cardiologist and physicians to make the rating decision.

As I discussed with you in another forum, I put in a claim for IHD, PTSD, IU and other items which I just received a decision on. When putting in the claim, I submitted a lot of medical records from years of treatment from physicians for my particular diseases particularly IHD. Included in those records were reference to SSDI determination for permanent total disability and have been on SSDI since 1990 for IHD.

Now I have a C&P exam for IHD and IU conducted by a Family Nurse Practitioner who at the end of the exam findings uses the phrase "…conditions do not prevent you from securing or maintaining LIGHT duty employment, including sedentary employment".

Without any reference to any of the doctors opinions that I submitted or any of the SSDI files, the rater used that exact phrase for the denial. "The VA examiner indicated that your service connected conditions do no prevent you from securing or maintaining gainful light duty employment, including sedentary employment."

Just starting to work on my plan of attack for either a NOD or CUE and the information about the IMO letters from doctors you and acesup will be very valuable. I'll be meeting with my VSO next week to start my appeal. Thanks for the great information.

Another thing-

if a VA doctor says they would have to resort to "mere speculation" to medically opine in a C & P exam-how the heck do they give their patients proper care?

I personally think some of these C & P opinions reveal negligence or complete lack of medical knowledge.

[Berta]

Does the VA know you are on SSDI????

Geez-

"have been on SSDI since 1990 for IHD." That evidence might put you into the 100% IHD criteria ,making her TDIU statement there having no probative value.

"They are using the opinion of a NP over surgeons, cardiologist and physicians to make the rating decision." When the H VAC hearings schedule is posted- vets have got to bring this crap to the attention of the H VAC.

Even when the BVA orders a Cardio or Neuro opinion -the vet can end up with a PA.

Nothing wrong with PAs except they dont have MD after their names.

I guess if a vet had a real good IMO from a PA -then the VA would sure find a VA doctor to go against it.

[handler]

Yes, they knew I was on SSDI. Evidence shows that they requested and received the SS records.