Attitude Of Rater

[carlie]

I've pasted here a prime example of what I'm referring to as the attitude of a rater

in my prior post. This came from a Court decision and I sure wish I would have saved the entire document or my link to it. Let me know what you think, should I add this information into what I am sending BVA ? Anyone out there have a similar

problem ?

carlie

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The Court notes that, in reaching the above conclusion, the Board relied on the October 1996 orthopedic medical opinion by the VA specialist that was solicited by the RO. R. at 6-7. Although the Board also said that "even without the doctor's opinion" it had concluded that DC 5286 applied only to conditions that affect "the entire spine", the Board was obviously influenced by the conclusion in the October 1996 medical opinion by the specialist that DC 5286 was not applicable to Pott's disease, even if the entire spine had been involved (R. at 191). The RO, in its October 1996 engagement memorandum that led to the October 1996 opinion, alleged that Dr. Lloren's October 1994 diagnosis as to the veteran's back disability was "lifted verbatim from the Rating Schedule", sought a resolution to that "problem", and then proposed that the specialist "feel free to refute the private physician's report as fully as possible for a better argument." R. at 255. That language suggested and, in effect, requested that the orthopedic specialist refute Dr. Lloren's opinion that the veteran's condition was ratable under DC 5286. In addition, the RO limited the inquiry to two narrow issues -- whether the previous report was accurate and whether the veteran's disability had recently worsened -- and left to the specialist's discretion whether he would {12 Vet. App. 535} review certain prior examination and x-ray reports ("you might want to review the 1973 examination and x-rays", R. at 255).

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").

Accordingly, in view of the errors pointed out in part II.A.2.a., above, and the serious compromise to the fairness of the adjudication process and in order that the adjudication of this claim comport with "underlying concepts of procedural regularity and basic fair play", Thurber, 5 Vet. App. at 123 (quoting Gonzales v. United States, 348 U.S. 407, 411-12, 99 L. Ed. 467, 75 S. Ct. 409 (1955)), a new medical opinion must be obtained on remand to carry out the Board's March 1996 remand order (R. at 174-75). See Stegall, supra. Accordingly, the Court will remand the claim for the Board to obtain a "medical opinion from the Chief Medical Director or an independent medical expert [(IME)], pursuant to _CFR_20.901 38 C.F.R. § 20.901(a) ,(d) (199[8])," as part of the readjudication of the Pott's disease claim that we hold is required. Quiamco v. Brown, 6 Vet. App. 304, 310 (1994); see Lathan v. Brown, 7 Vet. App. 359, 367 (1995) (holding that remand was "necessary for VA to obtain a medical opinion which [would] enable it to give [the claim] 'careful consideration', as required by _CFR_3.312 38 C.F.R. § 3.312© "); see also 38 U.S.C. §§ 5107 (a), 7109; Bielby, 7 Vet. App. at 269 (requiring that BVA obtain IME opinion from an IME different from one whose opinion was tainted by Board's engagement letter). As to the process for obtaining the medical opinion on remand, although the Court is reluctant to intrude into the VA adjudication process, given the seriousness of the regulatory and fair-process violations that occurred in this case and the need for expeditious action in light of the nature of the 79-year-old veteran's disabilities and in order to ensure fairness, before any engagement letter is sent, the Court believes that the appellant's counsel should have an opportunity to submit a draft of such letter to the Secretary's representative here in Washington, D.C., and that the engagement letter should be prepared through that representative, in consultation with the appellant's counsel, for the Board then to send pursuant to 38 U.S.C. § 7109 and _CFR_20.901 38 C.F.R. § 20.901(d) , rather than using the indirect approach of preparing an engagement letter in Washington, D.C., for use by the Philippines RO.

[Former Member]

I think this is a good example of why a vet has to practically beome both a lawyer and a doctor.

Great work Carlie-

A veteran has to carefully assess every single thing an examiner states to the VA and pounce on anything that is not correct.

It pays to look at the specific ratings in the Schedule of rating disabilties too-

This is a good point:

"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

In my case, the examiner in a SSOC clearly had been asked two questions by the DRO.It was obvious what answers the DRO expected.

Dr. Bash picked up on this better than I did because the questions she was asked were not really appropriate to the claim and she gave no rationale at all for her opinion.And also she had NO prior records to even develop an opinion with.I ddnt understand what Dr. Bash meant about the questions the DRO gave her-until I saw this Carlie-this was mentioned in his second IMO.

The VA doc limited her opinion to faulty logic based on the 2 questions and and not to the point of the claim at all.

[vaf]

Carlie, is this the link?

http://webisys.vetapp.gov/isysquery/irl1158/5/doc

[Vike17]

Carlie,

I'm sorry, but I'm not really up to speed with what was happening with this claim. If you could give me a short synopsis of what has transpired, maybe I could give you a better answer.

Vike 17

[Guest jstacy]

If this idea is legal, Then I believe with the help of HAdit members, Compile a list of Rating officers across th country and put it into spreadsheet format. We can grade them the same way we Grade VSO,s. As a New Veteran comes aboard then it can help. I recieved a Damaging rating from a RO ( Who is now longer working) who totally misinterpeted the Claims file as wellas the service records.. He made Guesses instead of stating facts, Used wrong dates, Mistated the evidence and added his own 2 cents which by the way is in violation of LAW.

The Guys name is Cumbea. Just in case he surfaces somewhere.

[carlie]

Vicki,

I get an address error on that link.

carlie