Remand Exam With Previous Examiner Question

[Ryguy]

I am in the middle of a Remand, So the BVA, wants another C&P Exam, with a explanation from the examiner stating why (IN DETAILS), he believed that it is less likely that my upper back and neck conditions are service related (When 3 other VA Physicians wrote in my medical notes that the back and upper neck conditions were service related) I am service connected for lumbar issues already, but trying to get upper back and neck service disability.

But the problem is I received a letter in the mail a few days ago stating I have a C&P Examination in regards to the Remand decision, but the examination is with the exact same physician I had previously. Is that normal to have the exact same physician who previously examined me? Wouldn't this examiner already have his formed opinion of me even before I walk into the examination?? Or Should I request or bring this to the attention of the AMC Remand Board ?

My appointment is January 13, so all opinions and advice would be appreciated

[Buck52]

I am not sure why they want another C&P? if three VA Docs stated your condition was service related.

If you had another VA Doc stating (it is less likely) service related then they want to know why he gave his/her explanation as to why he thinks its not?

unfortunate there are some ''non veteran friendly VA Doc's in the VA System.

Just another way VA holds up a veterans claim.

I'd say do as they ask because they ( VA wants in Details from this Dr why he believes that?) but if you wanted to you can request another Dr or Bring it to the attention to the AMC Remand Board!

Other elder hadit members can chime in

When the VA Stops believing their own Dr's its a crying shame!

Good Luck Buddy

Edited January 2, 2015 by Buck52

[georgiapapa]

Ryguy,

Is the new C & P exam with the same VA examiner who stated it is "less likely" your upper back and neck conditions are service connected? If so, perhaps the remand board is either giving the examiner a second shot at getting it right or coming up with reasonable rationale to support his original opinion. It seems like it would make more sense to send you to another examiner but If the remand board insists on you going to see the same examiner, do not refuse to go.

Please do not take this the wrong way. I am just trying to find out why the BVA did not give more consideration to the 3 VA physicians whose medical notes supported your claim. You stated 3 other VA physicians wrote in your medical notes that your back and upper neck conditions were service related.

In your medical notes, did the 3 VA physicians use the terms like "patient reports" or "patient states" before stating your back and upper neck conditions were service related? If they did, they were not rendering a medical opinion but just reporting what you told them.

If they did not use such terms, did your medical notes contain a basis for their opinions? In other words, did your medical notes give reasonable medical rationale showing how the 3 VA physicians reached the conclusion that your back and upper neck conditions were service related? To be credible, your medical notes must contain the reasonable medical rationale from the physicians supporting their opinions. JMO

Good luck

[Berta]

"(When 3 other VA Physicians wrote in my medical notes that the back and upper neck conditions were service related) "

I am assuming (because the VA does not miss much) that BVA saw those entries.

But they don't contain a full medical rational,if that is all the notes reveal.

This additional C & P exam is probably for a full medical rationale from the same doc who said it wasn't sc, to justify a BVA denial.

In my opinion ( and with personal experience on this type of situation), your best bet is to get an IMO from a real doctor.

"I am service connected for lumbar issues already, but trying to get upper back and neck service disability."

There certainly could be a definitely medical association with the back and neck being secondary to the lumbar issue.

But I am not a doctor and VA doesn't care what I think.

I had this same problem (2 C & Ps from the same doctor) many years ago.His second opinion was worse then the first one he gave.

These were posthumous C & Ps and the last one ended with what I considered a terrible and libelous statement, because the veteran could not speak for himself ,he was dead, and I had to speak for him,with documented evidence ....I was devastated by that SSOC (long ago) until I calmed down and realized ,in both the SOC and SSOC neither the VA C & P doc nor the RO had even mentioned my most probative evidence...an autopsy.

I raised a lot of hell over that,long story, and got my 1151 DIC award letter within a few more months,from the RO.

I only had one major issue since then ,that went to the BVA. I double checked with the BVA ombudsman to make sure they had all of the evidence the RO had again ignored and then even sent it all directly to the BVA again as I do not tryst my RO anymore.. This time I had 3 IMOs (Ignored my my RO) and . 2 Negative posthumousC & Ps.

BVA remanded for an additional C & P. I rebutted it right away and sent my rebuttal to the BVA.

The remand asked for a cardio doc and I got a PA. I rebutted that he didnt have cardio expertise and that his opinion was too speculative.

BVA agreed and awarded that claim.(AO DMII death)

In your case, if the C & P doc clarifies his original opinion with an acceptable medical rationale that does not help you , it sure would be good if the BVA also had a real doc's opinion that would balance the scale.

The IMO criteria is in our IMO forum.

When C & P docs are challenged with rebuttals from vets or their survivors, that generates an additional SSOC, I believe they will do anything to support their original negative opinion.

The C & P doc who made the horrible statement years ago was shocked to find out from me that I had sent a 6 page autopsy to my RO TWELVE times

(as I gave testimonty to the H VAC during Shreddergate) and he said ,if the RO had given it to him, it would have certainly changed his opinion.Years later I spoke to him again and he competely agreed with my pending AO DMII claim although he could not do an IMO for me.

It is always possible a RO will withhold evidence from a C & P examiner. But in your case, unless the other 3 doctors gave a full medical rationale for their SC statements, you will need an IMO.

I think georgiapapa and I said the same thing....sometimes we are on line at the same time, same topic....

Can you give us the Citation number and Docket number of the Remand? It might be posted at the BVA web site by now and maybe after we read the remand we can help more.

But after being a hardcore claimant myself for over 2 decades, I still think you will need the IMO,from a real doctor, who has dealt with similar disability issues.

A IMO doctor like Dr Bash.

[Gastone]

RU: New Remand C & P fairly soon, right? Just prepare yourself for the New C&P, don't worry yourself about the what ifs. What exactly did the Denial Decision state as to reason that rater didn't want to give a SC or Secondary rating. Is there really anything you can do in a relatively short period of time in regards to "New & Material Medical Evidence?" I have to believe at this point all the Medical Evidence available, is in the HOT Hands of the VA Rating Dept.

The Remand speaks to the inability of the BVA to make a decision without the VA Rater explaining why you shouldn't received the SC your looking for. Remember, the rater just uses the C&P DBQ and the Evidence of record to supposedly make the right decision. Your ride on the VA Appeals Train may be coming to an end, good luck.

Semper Fi

Gastone

[Ryguy]

Good afternoon all, sorry for my late reply, but my Docket Number for the remand is 12-01-736. Yes other VA physicians simply put it as the service related disability. The accident happened just 2-3 months prior to me leaving the military. I dont see a Citation number on the remand forms, but hopefully this docket number helps you. I was unable to find the docket number when i searched on the website. The decision was sent to me on Oct 3, 2014.

[Berta]

I hope others chime in here.

Is this the actual remand?

http://www.va.gov/vetapp14/Files6/1444056.txt

If so it states:

"3. After the above evidence is obtained, schedule the Veteran for an examination to be conducted by a physician skilled in the diagnosis and treatment of spine disabilities to address the etiology of the Veteran's cervical spine disability. The claims file and electronic record must be made available to the examiner for review before the examination; the examiner must indicate that the records were reviewed. In the examination report the examiner should discuss the relevant medical history. This should include discussion of the Veteran's 2001 injuries to the spine, the x-ray findings in 2003, the VA examinations of February 2008 and December 2011, the January 2008 statement by Dr. S, and the February 2011 statement from Dr. G, and the MRI findings in June 2008 and December 2012.

Based on the evaluation of the Veteran and the review of the medical history, the examiner must express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that the Veteran has any current cervical spine disability that is due to the March 2001 MVA or any other incident of service. This includes whether the Veteran's current neck disability had its onset during service and/or whether it is as likely as not that the Veteran's current degenerative arthritis of the cervical spine/intervertebral disc syndrome is a progression of the Veteran's reports that his neck pain began at the time of the March 2001 MVA.

If the examiner opines that the Veteran's neck disability is not related to the in-service MVA, then the examiner should provide an opinion as to whether it is as likely as not that the Veteran's current cervical spine disability is aggravated by (made permanently worse) by the service-connected lumbar spine disability.

A complete rationale should be given for all opinions and conclusions expressed."

The key wording there is:

"After the above evidence is obtained, schedule the Veteran for an examination to be conducted by a physician skilled in the diagnosis and treatment of spine disabilities to address the etiology of the Veteran's cervical spine disability"

The decision states:

The February 2008 examiner opined that the Veteran's current neck pain was less likely than not related to his chronic cervical strain because at the time of the MVA and thereafter for several years, neck pain was not in evidence, and it is unlikely that the remote MVA is now related to neck pain.

Similarly, the December 2011 examiner opined that it is less likely than not that the Veteran's current neck condition noted in 2008 is related to the in-service MVA because the Veteran was not complaining of, or treated for, neck pain while in service and it is unlikely that neck pain manifesting 8 years after the in-service accident could be a residual of the accident.

These examinations are not adequate because neither examiner acknowledges the cervical spine x-ray findings in 2003, nor do they consider the Veteran's lay assertions that he had neck pain at the time of the MVA.

To support his assertions, the Veteran submitted several lay statements from friends, former co-workers and fellow servicemen who claim to have seen the Veteran with neck pain, and one fellow service member who reported that the Veteran complained of neck pain at the time of the MVA in March 2001.

Also, the Veteran's primary care physician at the Atlanta VA Medical Center (VAMC), Dr. S, indicated in a January 2008 statement that, "Currently I am treating [the Veteran] for chronic neck and back pain which are service connected conditions."

What I do NOT see here is that the BVA is telling the RO to send you to the SAME examiner who didnt do this C & P correctly in the first place.

The BVA is NOT asking the examiner to clarify their opinion, it seems to me the BVA definitely wants " a physician skilled in the diagnosis and treatment of spine disabilities to address the etiology of the Veteran's cervical spine disability."

In my opinion, you should argue this aggressively...do you have a Vet rep as your POA?

Have you contacted the C & P people at the VAMC where this C & P is to be done?

After I read the BVA decision, I realized this should eventually be a SC award ,probably for secondary or aggravation.

And I also realized this could set up another remand if you get the same C & P doctor who didn't do the C & P right in the first place.

Have you googled the C & P examiner to determine what their qualifications are?

Regardless, the BVA found them not to be an appropriate examiner,thus they remanded.

If I were you I would be contacting the BVA Ombudsman and also writing to the BVA ASAP on this because they are refusing to follow the remand.

Edited January 3, 2015 by Berta