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acesup

Aha! Now I Get It, I'm Just Kinda Slow! C&ue?

Question

After reading my Decision Letter for the umpteenth time, as well as the NOD my new NOVA attorney filed, I finally see exactly why she was giggling like a schoolgirl as she read it.

In the "Evidence" section, they list all of the evidence, IME/IMO "nexus" letters, statements, etc. that I supplied.

In the "Reasons for Decision" section, in addressing denial of each claimed condition, they claim that the C&P examiner NP reviewed my private medical records, service treatment records, and VA treatment records.

Then, for each condition, the next paragraph states in part "Service connection is denied because there is no evidence that your ______ is caused by, aggravated by, or a result of your SC disability...".

OK, I finally see the error (repeatedly) that was so funny. "There is no evidence..."!!! Say WHAT??? So what about all of the evidence I submitted? What is that, chopped liver?

Now, I could understand words to the effect that "evidence in claimant's favor was not strong enough to refute the examiner's opinion" or something like that, but they are saying "NO evidence".

So, obviously, in his own words, the rater failed to consider and/or outright dismissed all of my evidence.

Will the DRO call C&UE on this?

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6 answers to this question

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In short the RO screwed up with the No evidence statement. What a DRO will or will not do is open to question.

I'd likely file an NOD and cite the RO's failure to consider positive evidence, despite the listing of it..

The other question has to do with the VA C&P examiner, and medical qualifications in relation to the doctors that gave favorable opinions.

A VA C&P examiner may be only an NP, PA, or even a doctor without qualifications, or specialization in the appropriate fields.

You can always file CUE, but have a limited time to file an NOD.

As to requesting a DRO review, I once did so, several years ago, only to have the DRO "rubber stamp" the original denial. The turnaround was so fast that

it was rather obvious as to what actually occurred. One would hope that things have recently improved, but there is no guarantee.

A recent Nehmer review completely reversed the denial, and resulted in more retro than what would have been paid if the claim had been approved in the first place.

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Will the DRO call C&UE on this?

This would not be a situation for the DRO to call a CUE on.

The DRO has the opportunity and authority to review all of

the evidence of record and make a new decision if warranted.

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Then, for each condition, the next paragraph states in part

"Service connection is denied because there is no evidence that your ______ is caused by, aggravated by, or a result of your SC disability...".

What I underlined and put in red - is related to secondary conditions.

FWIW - I do not think evidence in SMR's are considered for issues

that are secondary to SC'd conditions.

JMHO

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Maybe I'm missing something, but it seems to me that the rater isn't saying the evidence was weighed and then I was denied. It seems that ONLY the evidence supplied by the C&P NP was considered, and my evidence was ignored as if it did not exist. "NO evidence" .

I can't imagine that this is standard language when there in fact is VERY MUCH evidence, am I wrong? Even if the evidence was weighed and then I was denied, it shouldn't say "no evidence", IMHO. But who can understand a massive bureaucracy? Not I.

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yeah, I noticed they have a huge rubber stamp that just stamps everything 'no evidence' they probably stamp their toilet paper no evidence too... how they get away with that act is criminal.. abusive.. and a pre-meditated lie..

post-5809-0-94624000-1322237681_thumb.jp

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Acesup:

Read this post for more details:

In a nutshell the board can not reject favorable evidence without discussing it.

Ask Berta about the VA not reading her evidence.

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