Dont Let Va "develop To Deny".

[broncovet]

The VA is not supposed to "develop to deny", and Veterans attorney Chris Attig suggests including this language in your appeal:

.a VA Nurse offers an opinion on the cause of a complex motor neuron disease she's never heard of...

...an Internist with generalized experience writes an opinion on the causation of a cancer

...VA Docs support naked conclusions with NO medical evidence

...VA docs use exams to Develop the Claim to Deny it (an illegal practice).

This is more than a one off problem....junk science has invaded the Veterans Benefits System.

The Court and the BVA haven't made any efforts to delineate what is - and what is not - acceptable and reliable medical expert evidence

But YOU can help bring this issue into the limelight...

ALWAYS include THIS language in any Notice of Disagreement or VA 9 where the VA relied on an inadequate Comp and Pen Exam.

end Chris Attig quote.

http://www.attiglawfirm.com/communicate/inadequate-c-and-p-exams/?utm_campaign=vlb_daily&utm_medium=email&utm_source=Put+THIS+language+in+EVERY+Appeal...&utm_term=Put+THIS+language+in+EVERY+Appeal...

more from Chris Attig:

Using this language, ALWAYS challenge the adequacy of the examiner's credentials at the NOD and VA Form 9 stages:

The Code of Federal Regulations requires that to be competent, a medical opinion must be "provided by a person who is qualified through education, training or experience" to offer one. 38 C.F.R. § 3.159(a)(1). Competency requires some nexus between qualification and opinion. Dep't. of Veterans Affairs Proposed Rules, 66 FR 17834-01, 17835 (Apr. 4, 2001) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (stating that "opinions of witnesses skilled in that particular science, art or trade to which the question relates are admissible in evidence"), overruled on other grounds by King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012)).

However, the VA Benefits from a presumption that it has properly chosen a person who is qualified to provide a medical opinion in a particular case. Sickels v. Shinseki, 643 F3d 1362, 1366 (Fed. Cir. 2011). Even though the law presumes the VA has selected a qualified person, the presumption is rebuttable. See Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed. Cir. 2010) (explaining that a veteran challenging the qualifications of a VA-selected physician must set forth specific reasons why the veteran believes the expert is not qualified to give a competent opinion).

Given that one part of the presumption of regularity is that the person selected by the VA is qualified by training, education, or experience in the particular field, the presumption can be overcome by showing the lack of those presumed qualifications.

I hereby request that a copy of the C&P Doc’s resume, CV, list of publications, list of specialties, etc., such that his/her experience and qualifications may be examined, reviewed, questioned, and/or challenged. I specifically request that any and all information stored in VetPort - or any other system of records - that pertains to the Examiners' credentialing as a medical professional since the Examiner's date of first employment and/or association with the VA - be included in my C-File and specifically examined by the BVA and CAVC to determine the adequacy of the Examiner's so-called expertise. 38 U.S.C. 7402; 38 CFR Part 46;VHA Handbook 1100.19; VA Handbook 5005, Part II, Chapter 3; VHA DIRECTIVE 2012-030.

Furthermore, I object to the following aspects of the VA Examiner's opinion:

a) The lack of support in the opinion with scientific, technical or other specialized knowledge, and how it relates to the conclusion being sought

b) The lack of facts, tests, or data on which to base the opinion.

c) The lack of evidence demonstrating the Examiner's conclusion is the product of reliable principles and methods

d) The Examiner's failure to reliably applied medical, scientific, and or forensic principles and methods to the facts of the case.

By challenging the adequacy of the exam and directing the VA to include that information in your appeal, the BVA cannot overlook that evidence without forcing a remand.

By failing to get information that allows you to participate in your appeal, the BVA cannot fail to collect it without violating the Duty to Assist and - I would argue - violating Constitutional Due Process.

[knap-sack]

Wow thats a whole lot of legal talk. I am in over my head. I do know this my c&p where I was given 10% was horrible. I still have bad feelings about the exam. I was examined by nurse. She could not realize the gravity of my injuries.

She advised me to get documentation from my family doctor. Now this is the money question. I was there to be examined to determine my cliam. Why do I have to give them everything i.e. evidence when it's in smr ?

Because the examiner was totally unqualified to see what a orthopedic doctor would know just from seeing the injury I sustained.

This whole system or way of va doing business is designed for the vet to be wore down. Bronco I agree 100% the examiner's do not have the specialized knowledge for doing what they're intended to do.

I did not know this when I filed my cliam. I figured they pull my smr and send me to orthopedic doctor and it would look at 6 months of records of surgery and rehabilitation and award cliam. April will be two year's since I started the cliam. Why is it something so simple becomes so complicated. I had no idea the va was so difficult to navigate. Right Now I sit here with hand in severe pain and the ringing inmy ears sounds like jets spoiling up in the back yard.

The main thing that scares me about that statement is retaliation. I know the va employees placed in these roles understand their lack of subject knowledge and try and guide us with hints along the way without jeaperdizin their livelihood. But I have to keep running the rerun over and over then I see something here or in cfr. I am rationalizing on attorney this weekend. I am having a hard time with this cliam and my ptsd does not give me an advantage on this. I can see why a vet would pull into va parking lot and kill himself. I believe there should be a congressional hearing on that one. It truly becomes hopeless.

[Notorious Kelly]

My biggest beef with the VA benefits process is that it's a 1-sided black hole where you Really never know where you stand until a decision is reached months/years later. There is nothing fair about this system.

The fact that so many veterans end up being awarded benefits on appeal shows the flaws in their own system. And think of the entitled vets who don't make it through the appeals process due to death or giving up.

it is a travesty to advertise that the VA is putting veterans first.

[lotzaspotz]

Due to a BVA remand, my husband received a C&P exam for hypertension as a secondary outcome of steroid meds taken for an adrenal disorder by an Anesthesiologist in January of last year. We challenged the exam in February last year via certified mail to the BVA and RO as flawed because it should have been conducted by an endocrinologist or cardiologist. The unfavorable SSOC came in July last year with no mention of the challenge. We wrote again. Nothing addressed to date. I believe it is now before a VLJ. We'll see what happens.

[63SIERRA]

to add to this great info, I have read that the same level of expertise and comprehensiveness used to initially diagnose that granted,. should also be used to reduce or deny.

[ArNG11]

Man this is awesome advice. Words and actions to live by with regards to a VA disability claim. Fight till your last breath!

[broncovet]

I agree that citation is long winded, and I will attempt a summary:

1. The VA is forbidden to "develop to deny". This means if the VA thinks there is no chance in your claim suceeding, they should not order a C and P exam. Ordering a C and P suggests you have met all the criteria EXCEPT, perhaps a nexus and maybe the degree of disability along with an onset of symptoms.

2. You can challenge the C and P exam. But, if you do not challenge the exam, it is presumed correct. You can challenge the examiner's credentials, and you can ask the VA for them. If the C and P examiner does not have expertise with your disability, then you can challenge and probably get another exam.

3. If you are working on an appeal, and the exam is highly unfavorable, then consider cut and pasting, the wording, above (in blue) , by attorney Chris Attig