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.

[Vync]

This could perhaps open the door to a number of CUE claims...

[VetlawUS]

Y'all put this in EVERY NOD, and I can make some serious arguments at the Veterans Court if you get denied.

The problem is that so many Vets fail to challenge these crappy C&Ps, but the law requires that you "articulate specific concerns" with the quality of the exam or the examiner.

That's like telling blind man that he can have a million dollars if he just tells you how many fingers he's holding up.

The language should be in every NOD and VA Form 9, and when you hire an attorney at the Veterans Court, make 'em fight to get the Docs credentials in the RBA...this "Junk Science" has got to go!

Here's the whole post: Like Ants to a Picnic, Junk Science Invades Most C&P Exams.

[63SIERRA]

"The problem is that so many Vets fail to challenge these crappy C&Ps, but the law requires that you "articulate specific concerns" with the quality of the exam or the examiner."

I would think that because if CP exams are done at VES that we cannot see until the claim is already rated, this is a problem., Also last I heard, veterans cannot see the results of CP exams done a VAMCs now either. This needs to change. The VA wants to do everything in secret and keep the vet out of the loop. OUR tax dollars pay for those exams, and they hide them from us.

I feel that many times, the denials start long before the get to the RSVR.

Edited February 25, 2015 by 63SIERRA

[63SIERRA]

I believe alot of times the only reason for the CP is to give the VA the silver bullet to deny the claim , not approve it.

The CP examiners and RO rsvr s are in frequent communication via telephone abt veterans claims regularly,

I know this for a fact.

I had a CP examiner tell me this, and tried to call them while I sat there.

When I arrived for my exam, the very first question asked, was abt a long standing claim, that could be a whopper. I wasnt even there for that specific reason, I was there for other things. I believe that because the question was a the top of her list, and mind( SIGMOND FRUED)., That the question asked was a hopeful chance to screw me. Hoping I would say OHH my back is fine, it doesnt bother me anymore. I bet she would have broke the damned phone trying to call the RO, and get some brownie points.

anyone who doesnt know, SIGMOND FRUED, was a doctor who proved that what is foremost on your mind, will be said.

The very first thing that was asked, which had nothing to do with why I was there was

WHY ARENT YOU SERVICE CONNECTED FOR YOUR BACK?

my answer was,, WHY DONT YOU TELL ME?

Why in the hell would she ask me that right from the start? she didnt do anything to help me at all, she downplayed everything, made several wrong statements and checked several wrong boxes.

I have successfully challenged 3 cp exams, of which I got 2 more botched exams, which have been contested.

Its a rat race people, it really is.

Edited February 25, 2015 by 63SIERRA

[broncovet]

I would like to thank "Vet Law" for his expertise and help for Veterans. Since we are on the topic of C and P exams, I recommend you prepare this one question..it will make the C and P exam go better:

(VA examiner) "How are you?"

Duuh.."fine". This is probably inaccurate and you will be backpedaling the whole exam. The mere fact you are "there" means you have applied for benefits and have some symptoms.

We have been trained...all of us do it. You go to a meeting , you shake hands with 50 people and respond .."Im good".....when in reality, you and your wife just had a huge fight over money..they are about to reposses your home..you are days from homelessness. Not to mention your cold is so bad you feel bad about shaking hands and giving it to everyone else. These people probably dont want to hear your PTSD or ED symptoms, and you sure dont want to reveal them.

So, instead, of "fine" or "good", rehearse what you will say. This does not mean you should lie or exaggerate your symptoms.

But...do tell the examiner your "worst day" of the past week or month, not your "best day".

Rather than "fine"...something like this...insert your own facts here...dont use my suggested symptoms..tell him your own:

More like this:

How are you?

Today is much better than (your worst day) last Tuesday. Tuesday...I got in a fight with my wife because I woke her up with another flashback. She threatened to kick me out..telling me she is afraid of me...........She called the cops after I hit her. Im suprised I did not have to go to jail, and would have...except she saved my azz again by telling the police her bruised eye was she fell down the stairs......

Like I said, insert what happened on YOUR worst day and tell him about your worst day not your best day. Don't say "fine" if you are not. .this guy is paid to hear your problems, and how is he going to know any of them if you keep them to yourself?

Edited February 25, 2015 by broncovet

[broncovet]

In my case, my BVA remand directed the VARO to "issue a SOC"....what????

Understand what an SOC means here...it means you have been denied. SOC's are never issued when (the full array) of benefits are awarded. So, the BVA is remanding this case to deny you? What a crock!! The BVA remand should say something like:

...the case is remanded to the VARO, and, a C and P exam shall be given if necessary. If the benefit sought can not be granted, then a SOC shall be issued to the Veteran.

Interestingly, the NVLSP "let that one slide". The BVA is "remanding to deny"...in black and white, by telling the RO to "issue a SOC". In a DRO, de novo review, they are supposed to start over, not with an intent to deny and issue a SOC.

Im unable to understand why the NVLSP wont go to bat for me with this. The only thing that makes sense is that it happens rarely enough its never been "court tested", so NVLSP does not want to take a chance on losing as there may not be established precedential law on this. I do wish I could find an attorney who would go to bat for me.