Questioning Raters Request And Attitude

[carlie]

I have a copy here dated Jan. 9,2002 of a Department of Veterans Affairs-

317 Regional Office - Examination Request Worksheet.

Listed

Type of Examination

1430 VAE: Joints

1520 VAE: Respiratory Diseases, Misc.

Remarks: Make the claims folder available to examiners.

The veteran is claiming a lung condition (asthma) and allergies as related to military service. She had at least one cold with notation of maybe some mild bronchitis. She is a smoker. She is also claiming an unspecified right shoulder problem from an injury in 1977. There is an indication in the file that there may be a psychogenic component to some of her complaints.

This bastard -- if he were in front of me right now ! ! !

FYI - the unspecified right shoulder problem got SC'd as chronic bursitis

documented injury in SMR's.

Anyway, my question on this is - I feel that the rater requesting the exam

is not a doctor and is way F**K!#G out of line in putting this statement into the exam request.

He may as well quit hiding behind his little ones and just say,

I request this exam so a doc will agree with me and verify this vet is faking an illness.

Going by M21-1MR this rater IS out of line.

This is from M-21-1MR

13

Remarks

· If known, provide the diagnosis of each disability to be examined.

· As appropriate, state whether service connection has been established for the disability or if it is being sought.

· Restrict other entries to

- any necessary clarifying remarks regarding the issues to be resolved, and/or

- the type of examination requested.

· Provide the name and telephone number of the requestor, in the event clarification is required.

Note: Do not use manual, regulation, or code citations.

14

Specialist Examinations

Explain the nature of the specialist examination requested and the reason for its request in Remarks

carlie

[Guest fla_viking]

Dear Josehpine

WIthin one year of service I had a bunch of psych tests done and they gave personality disorder. 2 1/2 years latter I was hospitlized in a VA and vets home for 10 years. I again was given the same tests and was told I was schizoid at that time.

The VA fought like hell to keep the two disaboity periods from ever being reviewd together or allowing a C&P to take place because the VA knew the Jig was up if that happen. The psych tests I took in 1981 had the exact same wording, description of symptoms and results as the tests of personality disorder. I told the VA the court ruled they have to superimpose the two disablity periods and see if there is any links. The VA finelly reconized the two tests results were the same, only the conclusions were differnt. The VA after 22 years granted me my C&P, then after 25 years granted me my claim with 1 year back pay.

Terry Higgins

[Josephine]

fla_viking,

What a disgrace. Goodness, anyway that you can go into the new law and collect any of the backpay.

From what I have read on this site, I will definitely be a blooming idiot before this is over, for I refuse to give up.

Thanks so much for your help.

Always,

Josephine

[free_spirit_etc]

http://www.hadit.com/library/law/971178colayongvtogo.htm

AOAS COLAYONG, APPELLANT, v. TOGO D. WEST, JR., SECRETARY OF VETERANS AFFAIRS, APPELLEE.

12 Vet App 52412 Vet. App. 524; 1999 US App Vet Claims LEXIS 8851999 U.S. App. Vet. Claims LEXIS 885

No. 97-1178

August 17, 1999, Decided

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

Before NEBEKER, Chief Judge, and HOLDAWAY and STEINBERG, Judges.

Disposition REVERSED IN PART AND VACATED IN PART AND REMANDED.

Counsel Marshall O. Potter, Jr., for the appellant.

The Court holds that the questions that the RO presented to that orthopedic specialist in the engagement memorandum were fatally flawed in that a "question may not suggest an answer or limit the field of inquiry by the expert." Bielby v. Brown, 7 Vet. App. 260, 268-69 (1994); see also Austin v. Brown, 6 Vet. App. 547, 552 (1994). The Secretary has conceded the impropriety of that memorandum. Under _CFR_4.23 38 C.F.R. § 4.23 (1998), "rating officers must not allow their personal feelings to intrude . . . and fairness and courtesy must at all times be shown to applicants". That regulation was violated by the engagement memorandum prepared here. Moreover, the memorandum also violated a requirement in _CFR_4.1 38 C.F.R. § 4.1 ("it is thus essential, both in the examination and in the evaluation of disability, that each disability be reviewed in relation to its history" (emphasis added)), because it gave the examiner discretion as to whether to review certain prior medical records. See Green (Victor), supra ("thorough and contemporaneous medical examination" is one that "takes into account the records of the prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one").

[Wings]

http://www.hadit.com/library/law/971178colayongvtogo.htm

COLAYONG v. WEST

The Court holds that the questions that the RO presented to that orthopedic specialist in the engagement memorandum were fatally flawed in that a "question may not suggest an answer or limit the field of inquiry by the expert." Bielby v. Brown, 7 Vet. App. 260, 268-69 (1994); see also Austin v. Brown, 6 Vet. App. 547, 552 (1994).

The Secretary has conceded the impropriety of that memorandum.

Under 38 C.F.R. Sec. 4.23 (1998), "rating officers must not allow their personal feelings to intrude . . . and fairness and courtesy must at all times be shown to applicants". That regulation was violated by the engagement memorandum prepared here.

Moreover, the memorandum also violated a requirement in 8 C.F.R. Sec. 4.1 ("it is thus essential, both in the examination and in the evaluation of disability, that each disability be reviewed in relation to its history" (emphasis added)), because it gave the examiner discretion as to whether to review certain prior medical records. See Green (Victor), supra ("thorough and contemporaneous medical examination" is one that "takes into account the records of the prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one").

EXCELLENT CITATION Free Spirit !! Good research !!

[free_spirit_etc]

And I found it here at hadit!

Free

http://www.hadit.com/library/law/971178colayongvtogo.htm

EXCELLENT CITATION Free Spirit !! Good research !!