Can Redacted Va Medical Record Be Used As Evidence Against Veteran

[VictorE]

In 2009 I saw my first VA medical doctor and after refusing to review my service medical evidence I had brought with me he put into my VA medical record inflammatory remarks that after 2 years I was able to get them redacted from the record. Can this record now be used as evidence against my claim? The medical record states on it now that a part of it was redacted. This changed the VA medical record but before I could get the statements redacted a C&P examiner used the record against me when denying my claim. I brought up this issue during my DRO hearing but of course it does not appear in the transcript of the DRP hearing and now my claim is waiting on the BVA to review my claim.

My question to my learned friends is can a VA redacted medical file be used as evidence against a Veteran? I read somewhere that a VA ruling was handed down that since the contents of the Medical record had been redacted that it no longer is valid as evidence because it changed the content of the record making it invalid.

[free_spirit_etc]

You filed a claim in 1985 that is still pending?

I am trying to understand this here. So you were injured in service, medically discharged, and filed a VA claim for the same condition in 1985 and they didn't send you for a C&P exam until 2009?

Edited October 19, 2013 by free_spirit_etc

[free_spirit_etc]

Okay. I looked up some other info in another forum thread. So it looks like this is a re-opened thread.

Again - I think it would be helpful if you posted the C&P exam - what it actually stated - and the SSOC.

I am not clear about what the redacted information about the worker's comp claim has anything to do with it. It seems like the most recent C&P exam was more trying to say your condition was congenital than it was to say that it was caused after service (i.e. worker's comp claim).

I was interested in the other thread where you said there was an altered C&P exam report. From what I read it was altered to be more in your favor. Was this report considered?

I am just having trouble understanding why it has been so hard to get this service connected when it is the same disability your were medically discharged for.

Do you still have an attorney?

I will still look for info on redacted records... but I have lots of other questions. And I am not even sure the redacted information was relevant in the decision they made.

[Philip Rogers]

It sounds to me like you were injured, in the service, in a LOD accident, and later injured the same area, in a workers comp claim, which you settled for a lump sum payment in lieu of future medical care. You have some congenital defects/conditions, also, but were accepted as fit for duty. Am I correct??

pr

[VictorE]

She cited the medical record in her opinion by saying that her findings were supported by his opinion. I applied in 1985 and when I got home I called the VA and scheduled a C&P exam. It was conducted 30 days after my discharge but the day I went in for the C&P they made me fill out another different claim and when I got the denial 60 days latter it said my reopened claim was denied because I had to have a disease or injury that was incurred or aggravated during my service time. Obviously my records were not before the person who made the decision to deny. Also when I look at my C-File there is no medical opinion that says I had a hereditary condition, matter of fact the examination doctor did not mention anything from my SMR's. I tried to reopen in 1990, 1999 and 2009 all were denied because I could not produce any new evidence to support my disability was incurred in service. I have an attorney now, I hired one after the NOD denial. We first are going to get them to recognize the same disability exists as it did in 1985 and then address the EED and CUE issues, I need some income, I currently am on SSI which pays only $600 per month.

I included a IMO with the BVA pleading in which the doctor states that the nurse practitioner was wrong in her opinion that I had a form of childhood arthritis and that my current disabilities are due to the disability that was caused by the direct physical trauma to my lower spine while on duty working as an aircraft mechanic. He stated that there is no medical standing anywhere that exists which supports her statements about my disabilities being connected to hereditary arthritis. He states I have loss of my legs bilaterally due to nerve damage with bilateral sciatica, bilateral neuritis, bilateral radiculitis, myofascial pain, bilateral lower extremity muscle atrophy and Major Depression Disorder.

[free_spirit_etc]

Victor,

I am SO sorry you are having to go through SO much with this claim. I do believe you will win it - and hopefully you will get an effective date all the way back to when you first filed the claim. I see in the other thread that the VA has ignored one of your conditions - so that could be pending and unadjudicated. I am wondering if your attorney can do what Berta suggested in the other thread and ask the VA to CUE themselves - as the record clearly shows you were injured in service and relying on a VA examiner who ignored the fact that the military clearly stated your injury occurred in service is in error. If he could do that, it would be so much faster than remands or filing a regular CUE claim.

I am still not clear about the redacted stuff though. Has it actually been removed from your record? If it was removed from your record, and is not in your record, then I am not certain you want to open that can of worms. Unless the C&P examiner specifically referred to the redacted information in her opinion, the fact that she cited the other doctor might not be relevant. What did she cite?

My thoughts are, if there is no mention of the information that was actually redacted - and the information is no longer in your file, would it be wise to start fighting that battle yet -- and bringing up the fact that there is redacted information that might cause the VA to start digging to see what was redacted? Does that make sense?

Can I ask how you think the information might harm your case? You might also want to start building a strong case to defend against that.

But right now it looks mostly like you major battle should be fighting the ROs assumption that the condition was congenital. And it seems like you have some pretty solid evidence for that.

But your case shows how awful it can be if the VA makes an error and they already have all the evidence. They can keep the vet in perpetual denial saying there is no new and material evidence.

[free_spirit_etc]

Victor - It sounds like you have a VERY STRONG case!!!