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

[carlie]

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.

From my understanding, the C&P examiner not having the c-file does not meet the criteria f

or a successful claim of CUE.

Also, a decision has to become final before a denied issue is ripe, for a claim of CUE.

It could probably be addressed as a grave procedural error, but not a CUE.

JMHO

[rpowell01]

Carlie,

I am still learning what a CUE means and I know it doesn't mean what it stands for.

[broncovet]

This is a classic case of "absence of evidence" does not equal "evidence of absence".

The examiner being unable to find your C file is not documentary proof you did not have the malady in service. Time after time the VA denies claims, when a "new" c and P exam should be ordered instead, only this time with the examiner looking at your c file first.

The remedy for a defective C and P exam is a NEW c and P exam, not a denial.

If I can not locate my keys, or even my car title, this is NOT proof I stole the car!!!!!

Yet, the Va often denies these, putting the Veteran on a hamster wheel for decades. I recommend you point out this logic error on your NOD. The BVA should remand this and order a new C and P exam This time WITH YOUR C FILE.

If you do get an award from the DRO or BVA, be prepared for the Va to hornswaggle you on the effective date. Then pull out your .38 CFR 3.156 C, that is.

[jbasser]

Broncovet, Hornswaggle? Really

I love the Verbage.

New word for Basser. Hornswaggle.

J

[rpowell01]

What is a Hornswaggle? I am thinking of many combinations but I can't think of one that would fit Hornswaggle? Heck I thought I was from "back in the woods"....

[rpowell01]

Isn't this a true failure in "Duty to Assist"? Just wondering if the VA breaks their own policies, mainly a big one like this, who do you go to file a complaint? Is there an IG office that can do something about it?