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.

[carlie]

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.

If your waiting for a DRO HEARING to be scheduled - - it will probably be AT LEAST - a 12 months wait

and perhaps longer.

JMHO

[carlie]

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.

John,

Will you please post the CFR or USC reg/law to support this, OR a BVA case that spells

it out and granted CUE strictly on this theory.

Thanks

[carlie]

As soon as I can, I will post he Decision letter info.

My NOVA attorney asked me to not do that until we've completed the DRO stage.

If "My NOVA attorney asked me to not do that until we've completed the DRO stage.", I would certainly ask them

why the heck not and also question their level of confidence.

I do not agree with the above mindset - heck your pretty darn anonymous and just posting the Reasons and Bases

(for decisions) can in no way jeopardize you or your claim issues.

Sounds like the attorney is a bit paranoid - to me. This is only my opinion.

Really not much can be provided for help or guidance without that info, so all I can do is provide encouragement to hang in there.

JMHO

[Teac]

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.

Sorry if it seems my tone is too harsh... and I guess at times I may be scolding people and not realize it. I've seen so many different kinds of mistakes in the last 26 years....that sometimes I can't help but wonder what a veteran was thinking.

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.

I have never advocated for any veteran to pay for an IMO. I have never paid for an IMO. I think it is a waste of money. Every medical opinion I ever received came from a VA Primary care doctor, or a PC military doctor, or a doctor of a speciatly clinic. Even now I need a medical opinion for my sleep apnea claim, I've needed one for 18 months, but I am not going to pay for it and haven't found the time to speak to a doctor about it so I still wait.

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.

It is not a C/P examiners job to be identifing all service connected injuries/diseases. They have a very limited scope of attention, they are only hired to do an examination for the conditon which the veteran raises. See part of the problem is that some veterans think the VA is obligated to do an examination as if it were a physical, of course that is not their job or purpose.

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.

I agree in some cases the VA isn't doing the job it was created to do. While it was never ment to be an adversarial system, anytime money is a motovator for anything there will be conflicts. The US government on one hand says they owe disabled veterans (and they do) but on the other hand they are responsible for being good stewards of the taxpayer dollars. In some ways the veteran is responsible for some of the adversarial problems associated with a specific case. Unfornatuately we don't write the rules, the governemnt does, so we must play by the rules like it or not. In many cases a veteran does not even know the rules, in other cases, they try to bend the rules, but that never works. And in many cases, even when we play by the rules a claim is denied because the va has someone doing a job with out knowing how to do the job. I think overall most valid claims get approved regardless of the adversarial problems, and in spite of some being denied the first time around.... And that is one reason why it is so important to have the ducks all lined up before even filing the claim.....

[Teac]

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,

Don't worry about it, I did not take anything you said as personal. We are all here trying to benefit the veteran and more than one opinion can be very helpful. One person will never have all the answers, but between 3 ,5 or 10 people there will always be a valid answer.

[Teac]

John,

Will you please post the CFR or USC reg/law to support this, OR a BVA case that spells

it out and granted CUE strictly on this theory.

Thanks

I would be interested in reviewing such a case too.....