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TiredCoastie

Need Help - Which Doctor Takes Precedence?

Question

Hello everyone and Merry Christmas!

I'm in the final stages of putting together a NOD - and thanks to all those who helped me thus far. I'm taking AskNOD's advice and putting appropriate CFRs in my rationale for why the RO wrongly denied service connection. However, I can't find an obvious CFR cite that covers which doctor they should listen to. In my situation, my ENT filled out a DBQ that said that my hearing loss was related to military service. The RO, relying on audiologists, is using the argument that I had hearing loss upon entering the service and that the level of increased loss was not due to military service - which for me included loud engine noise, pistol, rife, auxilitary or main battery fire, helicopter operations, etc. If my ENT said that it was, in his opinion, related to military service shouldn't the RO take that opinion over VA or QTC audiologists?

Of course, as AskNOD has so aptly put it, the DBQ form is somewhat short of a nexus letter. I can go back to my ENT and ask him for a full nexus letter to include with form 9.

But first of all, is there a CFR cite that discusses which doctor to choose? I sure can't find one...

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They wont allow your ENT opinions because it will cost them money. They are there to keep you from getting any money. They will lie, cheat and make up what they need to keep you on the hamster wheel. Just keep appealing and get a lawyer. This is gonna be a long one. Never ever quit.

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If your ENT is not a VA doctor, do this. Go here and down load the Word doc. http://asknod.wordpress.com/6051-2/ Print it up to fit your circumstances. That's why it's modifiable and not a .pdf. Give it to the ENT and it will help him understand what he has to do to substantiate his hypothesis. VA has to accept his analysis if he is indeed a licensed audiologist. VA is free to try to rebut it on the terms you mention of it being pre-service and not being aggravated by service. Your biggest evidentiary marble will be your MOS at this stage of the game. Buddy letters from fellow Vets who knew and served are a great asset. Absent that, VA is going to wrassle you on this one. You can win it because you are allowed the "Layno" (it comes to me by my five senses) presumption. If your credibility is not impeached, you will win at the CAVC and it will be a Pyrrhic victory with little monetary gain until you are deaf as a post.

Just my observation but unless you need it to get to the 60% for SMC-S, it will be a empty popsicle rating- all stick and no flavored ice. Tinnitus- yes. That's the most awarded rating up to the invention of ear plugs and hearing conservation programs from OSHA in the late 80s. Actual hearing loss is most often a 0%. I got it for my left ear alone in 89 plus tinnitus. I can't hear squat over the ringing but VA doesn't count that. If they strap on the 150 dB headphones, I can hear some of it. VA's take is "Hey, you have two of those things, bud. If one goes belly up, you still have the other one. Get over it."

In 2010, VA sent out a FAST letter or bulletin of some sort in 2010 that said VA docs can discuss only the disease process and progression but are not allowed to opine on the etiology or subjectively diagnose the origin. Some who have been there for centuries will still do it. Some won't. Remember, you'll never know if you do not ask. This is for application at a VAMC when you are dealing with your PCP. Do not try to bribe a C&P doctor or any QTC personnel. If you have private records, always bring them to a QTC dog and pony show. Only show them to the doc who does the deal. It's like pornography for them. They're secretly insecure and desperately want to know what other doctors think. Being wrong is right out for a MD. If you tip your hat at the front desk, they may take them away and throw them in the circular file.

And by all means, have a Merry Christmas.

a

cp

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If your ENT is not a VA doctor, do this. Go here and down load the Word doc. http://asknod.wordpress.com/6051-2/ Print it up to fit your circumstances. That's why it's modifiable and not a .pdf. Give it to the ENT and it will help him understand what he has to do to substantiate his hypothesis. VA has to accept his analysis if he is indeed a licensed audiologist. VA is free to try to rebut it on the terms you mention of it being pre-service and not being aggravated by service. Your biggest evidentiary marble will be your MOS at this stage of the game. Buddy letters from fellow Vets who knew and served are a great asset. Absent that, VA is going to wrassle you on this one. You can win it because you are allowed the "Layno" (it comes to me by my five senses) presumption. If your credibility is not impeached, you will win at the CAVC and it will be a Pyrrhic victory with little monetary gain until you are deaf as a post.

Just my observation but unless you need it to get to the 60% for SMC-S, it will be a empty popsicle rating- all stick and no flavored ice. Tinnitus- yes. That's the most awarded rating up to the invention of ear plugs and hearing conservation programs from OSHA in the late 80s. Actual hearing loss is most often a 0%. I got it for my left ear alone in 89 plus tinnitus. I can't hear squat over the ringing but VA doesn't count that. If they strap on the 150 dB headphones, I can hear some of it. VA's take is "Hey, you have two of those things, bud. If one goes belly up, you still have the other one. Get over it."

In 2010, VA sent out a FAST letter or bulletin of some sort in 2010 that said VA docs can discuss only the disease process and progression but are not allowed to opine on the etiology or subjectively diagnose the origin. Some who have been there for centuries will still do it. Some won't. Remember, you'll never know if you do not ask. This is for application at a VAMC when you are dealing with your PCP. Do not try to bribe a C&P doctor or any QTC personnel. If you have private records, always bring them to a QTC dog and pony show. Only show them to the doc who does the deal. It's like pornography for them. They're secretly insecure and desperately want to know what other doctors think. Being wrong is right out for a MD. If you tip your hat at the front desk, they may take them away and throw them in the circular file.

And by all means, have a Merry Christmas.

a

cp

A huge ditto on the bolded in red.

Many times I watch vets fighting to get the hearing loss only to finally

win it as SC'd- with a big fat zero evaluation.

That's not to say it may garner a compensable level down the road -

but if you have bigger fish to fry . . . start heating the grease : - )

Plus, in this case, it looks like you've got the aggravation factor to overcome.

jmho

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A new award, such as tinnitus, does allow the claimant another chance at the disabled veterans life insurance, of $10k, which makes it a $10k win!!! Altho the $10k will go to your heir, it's still $10k, the premium can be waived, if the claimant is 100% or TDIU, w/P&T and it allows the claimant to purchase another $10k at a low rate. So, to me it isn't "a empty popsicle rating- all stick and no flavored ice" as $10k is $10k.

jmo

pr

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. " However, I can't find an obvious CFR cite that covers which doctor they should listen to. "

There is a lot of info on that and some court citations in this part of M21-1MR:

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=9&ved=0CFgQFjAI&url=http%3A%2F%2Fwww.benefits.va.gov%2Fwarms%2Fdocs%2Fadmin21%2Fm21_1%2Fmr%2Fpart3%2Fsubptiv%2Fch05%2Fch05.doc&ei=ZHm5UozQMsmEygGz-IHoBg&usg=AFQjCNFvVVlUqKniaMRmJaZKQ6WF8I-RYg&bvm=bv.58187178,d.aWc

In part. From M21-1MR, Part III, Subpart iv, Chapter 5

“Consider the key elements listed below when evaluating medical evidence.

  • Basis for the physician’s opinion, such as

  • theory

  • observation

  • practice

  • clinical testing

  • subjective report, and

  • conjecture.

  • Physician’s knowledge of the veteran’s accurate medical and relevant personal history.

  • Length of time the physician has treated the veteran.

  • Reason for the physician’s contact with the veteran, such as for

  • treatment, or

  • substantiation of a medical disability claim.

  • Physician’s expertise and experience.

  • Degree of specificity of the physician’s opinion.

  • Degree of certainty of the physician’s opinion.

Reference: For more information on determining a physician’s expertise and experience, see Black v. Brown, 10 Vet. App. 279, (1997).

The court citations will contain the regs from 38 CFR, such as :

“Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).”
A claimant has to keep in mind that C & P examiners are paid by the VA.
Th fact is that many of us here have succeeded in our claims only when we obtained concise medical opinions from non VA doctors, that comply with the IMO criteria here at hadit,and offer a full medical rationale,with professional expertise in the area of the disability.
Also a strong IMO doctor will take apart a faulty C & P exam, and in some cases an IMO doctor might find an additional ratable condition and that be claimed for SC.
While M21-1MR seems to consider the value to medical treatises (and in some cases a treatise alone has won a claim-I gave a link to a BVA widow's case on that years ago here.)
treatises and medical abstract printouts,however, have far more value to a claimant, when they are cited by a real doctor in an IMO.
Also some C & P opinions are speculative and should have no merit with the VA. It takes a thorough reading of the actual C & P sometimes, to reveal the opinion is speculative.
Example: I was supposed to get a cardio opinion on remand from the BVA for my 2003 DMII AO death claim. I had no doubt that a cardio opinion, even from a VA doctor, would support my claim.

But I got an opinion from a PA instead.It was done 20 minutes away at the Bath VAMC so I checked with his secretary to make sure the PA had all of the medical evidence and then I got a copy of it right away.

This was about 5 years after I filed the claim and by then I knew more about diabetic cardiomegaly than the PA did,and I swiftly rebutted his opinion and sent my rebuttal to the BVA as it was too speculative and it involved a DMII claim, which also meant the endocrinology factor was missing from the PA opinion,among other points.

The BVA disregarded this PA C & P opinion completely,agreeing it was too speculative,and giving it no weight at all and awarded on the other evidence and IMOs I had.

The BVA web site ,under their decisions, is resplendent with the way the BVA weighs medical evidence.(which should be the same way the ROs weigh it,(using M21-1MR).

I mentioned this before ere and ,although it regards BVA case, I need to mention it again.

When the BVA remands a claim, I believe we should follow the remand to the best of our ability as well.

In my remanded case, I also sought a cardio IMO right away and paid for it...but it didn't get done in time for the BVA decision.

I didn't even need it but when I saw that a PA was doing the cardio opinion, I was very willing to make another IMO investment because my evidence was solid.

Remands for more info to support a nexus ,in my opinion, mean the claimant should try to do some more leg work as well.

Remands for JSRRC info ,for example, should trigger the vet him/herself to write to JSRRC as well.

Over the years I have seen a few vets here get confirmed stressor verification by doing that ,when their SOC said JSRRC could not conform their stressor.









Edited by Berta

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