Do The Big Law Firms Really Know How To Develop Evidence?

[Hoppy]

I have been helping a veteran understand his recent denial for service connection of a secondary condition. The veteran obtained the services of a large and popular law firm. The law firm got off to a good start by using their own doctors to write reports for the veteran. After that it went all downhill. When all was said and done the veteran had one favorable report from a C&P examiner and two favorable reports from doctor’s who were working in association with the law firm. There was also one negative report written by a C&P examiner.

The negative report said that it was “quite possible” the veteran’s condition was caused by post service employment. The cases I have read considers the word “possibly” or “probably” as not sufficiently definitive to establish anything one way or the other. That is why you should use the more, as, or less likely than not, format. The C&P examiner provided some supporting logic. However, the supporting logic was all based on some theory and he did not provide any specific event that supported his theory.

The rater gave weight to the C&P examiners unsupported theory and denied the claim. The reason for this is because the favorable reports also had significant flaws. It does not matter how screwed up the negative evidence is. What is most important is the favorable reports need to strong enough to win the claim.

The favorable report written by a C&P examiner reached a determination the veterans secondary condition was due to his service connected conditions. However, there was no discussion of how the C&P examiner reached his determination. The rater did not give any weight to this report.

One of the reports from the law firm’s doctors said the veterans condition was secondary to the veterans service connected injuries. However, his report also did not contain any supporting discussion or logic. The rater stated that this report lacked supporting logic. The report was written after the negative C&P exam and the report failed to discuss the C&P exam. The rater made it a point to state that the failure of this report to discuss the negative C&P exam gave him the impression the examiner did not review previous exam reports. The rate did not give weight to this report.

The other report from the law firm’s doctors also was written after the negative. This report did provide a foundation that could be equated to supporting logic. The clinician made a blanket statement that there was a known correlation between the service connected condition and the claimed secondary condition. However, the clinician did not cite and specific literature or research data. This report was also not given weight.

Considering that the evidence against the claim was based on supporting logic that was nothing more than an unsupported “quite possible” theory that raised the possibility of a post service injury as causing the claimed secondary condition, you would think that the rater would have remanded the claim for further development. I have seen claims remanded when the positive report failed to address previous negative reports. I have also seen cases remanded when a clinician identified a correlation between two conditions and failed to provide specific details supported by literature or research data.

The rater used every weak point in any of the favorable reports to deny the claim. I really think the claim should have been remanded for further development. However, the rater either failed to recognize that the C&P examiners determination of a “quite possible” post service cause was not supported by any specific events or glommed on to the very weak negative evidence and gave weight to the negative evidence. I have seen all these problems addressed in the hundreds of BVA cases I have read. I would never allowed a claim to go to adjudication with reports written after a negative C&P exam that did not attack the week points in the negative C&P exam and provide significant supporting logic that backed up blanket positive statements.

A bare conclusion, even when reached by a health care professional is not probative without a factual predicate in the record. Miler v. West, 11 Vet. App. 345, 348 (1998).

A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999).

Edited February 16, 2012 by Hoppy

[Bigred122]

I have been helping a veteran understand his recent denial for service connection of a secondary condition. The veteran obtained the services of a large and popular law firm. The law firm got off to a good start by using their own doctors to write reports for the veteran. After that it went all downhill. When all was said and done the veteran had one favorable report from a C&P examiner and two favorable reports from doctor’s who were working in association with the law firm. There was also one negative report written by a C&P examiner.

The negative report said that it was “quite possible” the veteran’s condition was caused by post service employment. The cases I have read considers the word “possibly” or “probably” as not sufficiently definitive to establish anything one way or the other. That is why you should use the more, as, or less likely than not, format. The C&P examiner provided some supporting logic. However, the supporting logic was all based on some theory and he did not provide any specific event that supported his theory.

The rater gave weight to the C&P examiners unsupported theory and denied the claim. The reason for this is because the favorable reports also had significant flaws. It does not matter how screwed up the negative evidence is. What is most important is the favorable reports need to strong enough to win the claim.

The favorable report written by a C&P examiner reached a determination the veterans secondary condition was due to his service connected conditions. However, there was no discussion of how the C&P examiner reached his determination. The rater did not give any weight to this report.

One of the reports from the law firm’s doctors said the veterans condition was secondary to the veterans service connected injuries. However, his report also did not contain any supporting discussion or logic. The rater stated that this report lacked supporting logic. The report was written after the negative C&P exam and the report failed to discuss the C&P exam. The rater made it a point to state that the failure of this report to discuss the negative C&P exam gave him the impression the examiner did not review previous exam reports. The rate did not give weight to this report.

The other report from the law firm’s doctors also was written after the negative. This report did provide a foundation that could be equated to supporting logic. The clinician made a blanket statement that there was a known correlation between the service connected condition and the claimed secondary condition. However, the clinician did not cite and specific literature or research data. This report was also not given weight.

Considering that the evidence against the claim was based on supporting logic that was nothing more than an unsupported “quite possible” theory that raised the possibility of a post service injury as causing the claimed secondary condition, you would think that the rater would have remanded the claim for further development. I have seen claims remanded when the positive report failed to address previous negative reports. I have also seen cases remanded when a clinician identified a correlation between two conditions and failed to provide specific details supported by literature or research data.

The rater used every weak point in any of the favorable reports to deny the claim. I really think the claim should have been remanded for further development. However, the rater either failed to recognize that the C&P examiners determination of a “quite possible” post service cause was not supported by any specific events or glommed on to the very weak negative evidence and gave weight to the negative evidence. I have seen all these problems addressed in the hundreds of BVA cases I have read. I would never allowed a claim to go to adjudication with reports written after a negative C&P exam that did not attack the week points in the negative C&P exam and provide significant supporting logic that backed up blanket positive statements.

A bare conclusion, even when reached by a health care professional is not probative without a factual predicate in the record. Miler v. West, 11 Vet. App. 345, 348 (1998).

A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999).

This sounds like a law group that is based in Cali!!! lol I'm finding most of the larger law firms are more interested in either Politic or Media Madness!! One specific one spends more time in Puerto Rico and other tropical places. There is a few smaller firms that really take their jobs serious, but I have found them to be ex service people that have kept that team spirit mind set. They are so busy if you can get them your lucky.I have reclaimed my thoughts about lawyers, they are on the same level as used car salesman on the food chain scale! JM(not so humble)O.Mike

Edited February 16, 2012 by Bigred122

[jbasser]

Bergmann Moore does. I dont know about the rest.

just listen to the SVR archives and see for yourselves.

Basser

[Hoppy]

Basser,

That is a good way to deal with this problem. If you had a positive experience then maybe posting it will point people in the right direction.

[jbasser]

Hoppy, Carrie and Bergmann Moore is a wealth of information. Veteran claims is all they do. They are the most well informed froup I have found. They even travel and hold training outreach programs. It would definetly benefit anyone to listen to these archived shows as we cover a broad spectrum from the claims process, the appeals process, the bva, even the veterans court.

I have personally referred veterans to them. and have no regrets. They are part of the Hadit Family and I am happy they are here,

John

[broncovet]

The obvious answer is to get a strong IMO/IME that is positive and includes a medical rationale for the the medical professional's conclusions, or am I missing something here?

[jbasser]

The question is really how strong are the big firms are when it comes to the actual knowledge of developing evidence and the inter workings of the department of the VA.

Some advertise big but lets remember that VA law has only been opened on a larger scale for a couple of years so a couple of firms had the upper hand because that is all they do.

J