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Dont Let Va "develop To Deny".
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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:
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.
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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
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 re
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 sho
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