C&p Exam Contradiction With Va Denial

[Shyne-I]

Good morning all,

I would like to ask if anyone can suggest what I need to do from here.

I requested a copy of my C&P exam for Fibromyalgia from my local VA hospital on March 4, 2013. My exam was done on Nov 05, 2012. In reading my exam, it shows that:

2. Medical record review--- Indicate medical records reviewed in preparation of this report: [X] C-file (VA only); but once it gets to 8. Remarks, if any: C-File Not Available- Veteran sees outside Rheumatologist-Baylor Texas Arthritis Center. Unable to confirm information in DBQ without C-File.

On the Medical Opinion portion it states:

2. Restatement of requested opinion---

a. Insert requested opinion from general remarks: UNABLE TO PROVIDE OPINION WITHOUT C-FILE

b. Indicate type of exam for which opinion has been requested (e.g. Skin Deseases) : FIBROMYALGIA

3. Evidence review---

Was the Veteran's VA claims file reviewed?

[ ] Yes [X] No

Everything else in the exam (The Diagnosis, Medical history, Findings, signs, and symptoms,and the Functional impact) was favorable and an accurate portrayal of my current disability.

I received my decision in the mail yesterday and I was denied. The Denial Reasons:

- The evidence does not show an event, disease or injury in service.

- We did not find a link between Fibromyalgia and military service.

Explanation:

The VA medical opinion from Fort Worth VA Outpatient Clinic found no link between your diagnosed medical condition and military service. We received your medical evidence from Fort Worth VA Outpatient Clinic, Dr. Andrea V. Brown and Dr. Robert Jenkins which discusses the symptoms of your medical condition. Your service treatment records do not contain complaints, treatment, or diagnosis for this condition.

Because the multiple symptoms found in service have an etiology unrelated to fibromyalgia, and because you were not provided with a diagnosis of such condition until about 15 years subsequent to discharge from service, the VA examiner opined that fibromyalgia is less likely than not incurred in or caused by military service.

My objections to this denial and explanation are as follows:

1. I provided the VA with a DBQ filled out by my Rheumatologist on Aug 23, 2012 and although they mention this in the Evidence portion of my letter, they did not state that it was received and used as evidence. My Rheumatologist's name is not mentioned in the above explanation nor is the DBQ that he provided.

2. The multiple symptoms that they are referring to having an etiology unrelated to fibromyalgia, are actually listed by the Arthritis Foundation as being Non- defining symptoms associated w/fibromyalgia. They also did not mention my exit examination that listed: swollen or painful joints, frequent or severe headache, ear, nose, or throat trouble, sinusitis, shortness of breath, or palpitation or pounding heart. There was not any where on the exam to list fatigue which I also experienced during service.

3. The most disturbing thing to me about this explanation is that they mention an opinion from the VA examiner but on the copy of the C&P Exam I received, there was no medical opinion listed. The fact that they said that I was not provided with a diagnosis until about 15 years subsequent to discharge also bothers me because it took doctors that long to diagnose me. Through out the years I was being treated for the individual symptoms and no one every looked at them as a whole. I was given vitamin B injections for fatigue. I was given naproxen for swollen and painful joints. Headaches were being treated as tension headaches and so on!!

I know that I will most likely need an IMO from my Rheumatologist and possibly my Neurologist but it concerns me because of the so-called opinion "they say" was provided by the VA examiner!!

Any suggestions?? and sorry this was so long.

Edited April 16, 2013 by Shyne-I

[Chuck75]

An NOD is your next step. At least state your main reason for disagreement.

From a paranoid's point of view - -

Fully stating all the reasons you disagree seems to be (on the surface) the best way to go.

However, it also gives the VA time to fully develop a counter position opposing the NOD.

It may be necessary to eventually file "CUE". Since CUE is generally based upon a VA failure to follow the law,

it can be to your advantage to not mention such things at this point. Once an NOD is filed and acknowledged,

a lawyer might be appropriate. If things get to the CUE stage, I'd say that a lawyer needs to be involved.

[71M10]

File a NOD,

Do not even think cue at this point, because you can appeal the decision(it is not final). Did any of your physicians state your fibromyalgia's onset was during service? If they did, did they go on to state why? Without these two elements from a qualified medical professional you will not be able to get SC. In that instance, you will need to get an independent medical opinion, that clarifies your current diagnosis is directly related to the objective medical evidence in your service medical records. The opinion cited from Ft worth outpatient clinic was this the exam you quoted at the top of your post? If it was, In your NOD state the medical opinion cited by the decision clearly states the examiner was unable to issue an opinion due to not having the file. This inconsistancy demonstrates how completley flawed this decision is.

You cannot file CUE until it is a final decision, and without a qualifying nexus statement the bad VA decision would not raise to the level of CUE(based on what I read here)

This is of course my opinion, others will chime in with their opinion. Some of those may have experience with fibro claims.

[Shyne-I]

Hello All,

As an update to my earlier post:

As of today, my RO started an Administrative Review. They reopened my claim for Individual Unemployability. I don't understand why they would reopen the claim if they denied all of my contentions; which were Fibromyalgia, depression secondary to Fibromyalgia, and Individual Unemployability. Does anyone have an idea of what the VARO is trying to do here?

[cham1968]

Hello All,

As an update to my earlier post:

As of today, my RO started an Administrative Review. They reopened my claim for Individual Unemployability. I don't understand why they would reopen the claim if they denied all of my contentions; which were Fibromyalgia, depression secondary to Fibromyalgia, and Individual Unemployability. Does anyone have an idea of what the VARO is trying to do here?

whew! I'm glad to hear that. Maybe someone caught the mistake to which they apparentlymade in reviewing your claim. Hope this works out better for you good luck and god bless.

[rpowell01]

I think this is a CUE. The C&P Examiner has to have your CFile to make any determination. If he/she doesn't the RO has to redo the C&P Exam, period. File a NOD by DRO first.

Edited May 9, 2013 by rpowell01

[rpowell01]

BTW you will need a Nexus also, trust me on this. Things that ARE in fact in the military record will be purposely left out, no matter what. They don't care and what you to give up.