Duty To Assist: Should/does Va Routinely Consider Sc For Aggravation Of Conditions

[acesup]

I'm still waiting for my DRO review/hearing, since my NOVA attorney filed N.O.D. 4 1/2 months ago on 11/15/11.

In my claim for various secondary conditions to my SC lumbar spine problems including chronic low back strain and Degenerative Disk Disease as well as spinal canal stenosis and more, I was turned down for everything, including some no-brainers like sciatica and other nerve disorders of the lower extremities, as well as O.S.A, depression, Chronic Pain Disorder. and some problems caused by medications for my SC condition.

As I've complained in previous posts, the VA did list evidence they received from me, including expert medical opinions/nexus letters, lay evidence, etc. But the decision for each condition only referred to the C&P examiners' opinions, and in each case, stated "there is no evidence" supporting my claim for service connection, aggravation, etc... Well, there certainly is/was evidence, they simply chose to disregard it and rubber stamp the C&P opinions.

It is well-documented, and the VA doesn't disagree, that I certainly have every one of the conditions that I claim.

However, I have a question; why did the C&P examiners not opine on "aggravation", (or if they do, NOT offer any rationale as to why it wouldn't be aggravated?) and how can the VARO not REALISTICALLY examine that angle under "Duty to Assist"?

Even though VA arbitrarily dismisses my claimed conditions as anything but SC, how can they possibly get away with ignoring "aggravation". For instance, my lower extremities having serious nerve function problems; what idiot wouldn't realize that it HAS to be aggravated by the nature of D.D.D.? How could Depression or Chronic Pain Disorder NOT be aggravated by the lumbar condition?

My attorney does address this in the N.O.D. I hope someday soon to be getting a date with the DRO, but until then, just seeking answers.

[Berta]

“that while we need expert medical opinion supported by medical evidence, the C&P nurse can pull theories out of her derierre and apply them for purposes of denial. “

A graphic and often true statement,in my opinion. I got plenty of ' derierre' theories like that in the past-

BUT, an expert medical opinion from a real doctor is surely going to overcome a nurse's opinion.

There are thousands of great nurses in the VA system but I don't see how they could have the ability to opine on most disabilties as to a complete nexus and full medical rationale.The nurses lack of MD credentials are a point to raise on appeal, if you can overcome the C & P results with a strong IMO.

“I don't know why your NOVA represenative doesn't want you to post the actual reason for denial. No one unless they know you are ...”

I dont know why either.Teac made some excellent points here-

Over the years I have been contacted by vet reps as well as 2 vet lawyers for help with claims.I even shared info with some vet lawyers that they were completely unaware of because-only they had never handled a type of claim that I had plenty of personal experience with.

Hadit allows many eyes to get onto the Reasons and bases for a decision.

Our accumulative experience alone ,as hard core VA claimants, helps us see things the VA and vet reps often overlook and/or different ways of handling an appeal.

“Looking back now, I just think that when I filed my claim, I should have given proper attention to the fact that the VA would likely deny direct or secondary Service Connection. I should have also prepared for and presented a strong case for "aggravation" due to the SC disability, instead of hoping the VA would do it for me. “

You have helped vets out there by making that statement.

Many of us here would have done things differently in the beginning stages of our claims.

Have you requested a DRO hearing and will the attorney be at it?

Or is it going to be a DRO review?

Has your lawyer prepared a full rebuttal to the SOC?

“Lack of documented continuous treatment for a mental condition is no longer an automatic excuse for VA to deny that the claimed condition is unrelated to previous "episodes" of that disability. For instance, a person who has been diagnosed with depression while active duty, then doesn't see a psych for years cannot just be dismissed as now suffering an unrelated episode of depression. The Surgeon General recently opined that lack of treatment, even for a period oof years, doesn't mean the condition went away.”

Yes- in many MH cases that is quite true.

But the VA, in many cases involving physical disabilities ,the decision can rest heavily on proof of 'continuity of symptomatology' and, as far as I know, the VA has never referenced the Surgeon General regarding any claim.

I think I briefly touched on Continuity in the April 4^th SVR radio show here in archives and also I posted the decision I referred to in that show.

It is a very important aspect of VA case law-continuity of symptomatology.

Without seeing your stuff , we cant determine if in fact, VA questioned 'continuity of symptomatogy' at all in your case, but I thought that is why you brought up the 'lack of continuous treatment' statement.

[71M10]

Teac,

I understand your advice and comments are grounded in reality, your comments on IMO's before you file most definately improve your chances of the VA getting it right the first time. Your tone sometimes comes over as harsh and at times it almost seems you are scolding people. Just like I oftentimes seem like a smartass! well I am.

The problem is this isn't they way it should be, and if the laws were enforced as written. Their should be no reason a veteran should have to see a doctor and pay for a medical opinion for a service connected injury/disability for a fair shot at getting the just and earned compensation. C&P doctors should be identifying all service connectable injuries/disabilities and should not be conducting exams that are pre-parameterized by instructions from the RVSR or VSR that ask specific questions geared toward a dismissal. I strongly suspect the exam instructions from RO's are asking "do you still beat your wife"? questions. The moment I walk into an exam room, that doctor should be working for me.

I have talked with a former VA physician, he freely indicates the worst doctors at the VAMC were used for C&P's just to minimize the damage they were doing to patients.

The mandate given to the Veterans Administration is not being followed, it is not a non-adversarial system and it most definately doesn't have the Veterans best interests in mind. It is a creature of bureaucracy and its growth and justification of its current status is its primary concern.

[Berta]

"I have talked with a former VA physician, he freely indicates the worst doctors at the VAMC were used for C&P's just to minimize the damage they were doing to patients."

That would not surprise me at all.

I told Jerrel our SVR producer just the other day that I consider some of these C & Ps exams as downright malpractice.

If they cant handle a C & P in a medically appropriate way , how the heck could they give good medical care?

The fact that IMos can overcome many lousy C & Ps proves the point.

"Their should be no reason a veteran should have to see a doctor and pay for a medical opinion for a service connected injury/disability for a fair shot at getting the just and earned compensation."

I agree but it is what it is.

Costs or IMos can be quite high but then again, easily absorbed by some of the future comp checks that a vet might never see without a strong IMO.

"Your tone sometimes comes over as harsh and at times it almost seems you are scolding people. Just like I oftentimes seem like a smartass! well I am. "

At first I thought you mean me here because I am sure a kickass when it comes to VA , but try not to be a smartass.

I dont feel the same way Teac's posts at all like you do

and please bear in mind Teac provides SUPERB info and comments here on all types of claims issues.

I think I have been far 'harsh'er here a few times over the years than almost anyone else.

You make some excellent points 71M10 but Teac does too.

Something you said confuses me:

"My experience has been that the RVSO or DRO working on your claim/appeal will send specific questions they want answered and provide a scope of what the C&P is to address."

I think you mean the C & P examiner will follow the approriate C & P AMIE blank work sheet that regards the specific disabilty.

It is the C & P results that control the way the VSO or DRO decides our claims.

Many vets still do not know they can obtain a copy of the actual C & P exam. It could be parsed or highly manulated in the SOC , a point I proved on appeal for one of my past claims.

I am working with an IMO doctor on seeing how the VA could change that-and give the claimant the actual C & P results along with the initial decision,if the claimant has not gotten it themselves by then.

It is often the most imortant document a vet can get, once they get a VCAA letter.

[john999]

Acesup

If you submit a medical opinion and the VA does not list or refer to it in their decision that is a CUE. However, you still may not win. I have a CUE just like that at the Court of Vet Appeals for the second time. It gets very messy. Your decision has to be final, so you don't want that. I think if is grounds for an appeal at a lower level due to lack of due process.

[71M10]

Berta,

my comment of "RVSR or VSR that ask specific questions geared toward a dismissal".

When you request your C&P exam you are only getting the C&P exam, you are not getting a copy of the request that the regional office sent to the C&P office requesting they examine you.

On a C&P exam Nov 2010 the doctor flat out told me she couldn't consider service connection for my problem related to my Thoracic spine or cardiomegaly because the C&P exam request clearly stated to examine for secondary service connection based on my Cervical Spine only.

My last copy of my c-file didn't include copies of the exam request(only had two at that point the one in 88 and then 2007), but I have had 6 additional C&P's since then. I don't think the actual exam requests are showing up in the c-file (I will ask for last 4 years after this DRO is complete). Before I go to the BVA I would like to know what instructions beyond "do an exam for" are being sent to the C&P offices.

Do you understand my concern?

[71M10]

Teac,

Maybe I didn't make this clear enough in my first post today.

Your advice is valuable and is directed at getting results, I get caught up to often on "you should be able to" you are geared toward, Given the current situation you need to do this to achieve this.

And above all please be clear everyone. I was trying to indicate that I am often a "Smartass" not trying to put that label on anyone else here on the board.

Sorry for moving the topic into the theoretical instead of the actual.

Best regards,

Edited April 6, 2012 by 71M10