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.

[broncovet]

Buck52:

I think its a good idea the doc ask you if you are there for an increase on several levels:

First, he needs to be certain he is seeing the right person. So, if you say, "No, I thought you were gonna put a cast on my leg", then someone needs to find out if there is someone with a similar or even exactly the same name with a different issue.

Its also comforting to know that the doc is a c and p exam for "increase". There are exams to try to reduce you, and I certainly want to know if the VA is doing just that, or if I am there for an increase.

One reason for this is the rules are completely different for an exam to reduce than for an increase.

1. If you are there for an increase, you want to explain how your symptoms got worse.

2. However, if you are there for a reduction C and P exam, you need only show your conditions did not "actually improve" since your last RO decision which rated or continued your rating.

[Runrdud3]

I completed a C&P last week for Menieres disease. The ENT doc asked why am I here? He knows damn well I am there for an increase because the RO paperwork states it. I was already rated/service connected at 30% for menieres a year ago and am trying to get "fairly" rated at a higher % due to symptoms that warrant this.

This docs next statement was that Menieres should not be service connected and he was going to request in his opinion that I should be re-rated at 0%.

After explaining the symptoms and him performing his tests he stated that I may have the disease. My private doc even wrote a statement that I am being treated for it to include medications.

These C&P evaluators need to stick to determining if the symptoms or prognosis warrant an increase due to the regulations set forth by the VA disability bible.

[joman55]

Attacking the credibility of a doctor performing a C&P examination, particularly in develop to deny situations is a question of pure legal strategy - on a case by case basis.  There's a huge difference in attacking the merits of a negative report as opposed to attacking the credibility/proficiency/qualifications of the medical examiner.  For instance, if a veteran has a solid IMO, then the attack only on the opinion merits may be warranted.  At any rate, under the equipoise/benefit of doubt doctrine, the veteran should prevail.  If the examiner's qualifications are challenge, one may be exposing one's self to a develop to deny scenario by having the remedy of another C&P examination.

These are advanced matters of legal strategy,  you should seriously consider consulting with an experienced VA disability lawyer even to see if you are being subject to "develop to deny."

[Richard1954]

I had an examiner who stated my left knee injury was not the result of my right knee injury because I should not have been walking up a slope. Yes she actually said that, then  30 days later she amended the exam citing a document that was about limps and the opposite leg not being a cause of an injury. Problem was she quoted only a half of a sentence to make her point,  the other half of the sentence indicated it was referring to limps not knee injuries. I also had an IMO and the va didn't even consider it.. So regardless of what the va does, you have to appeal.

[Craig Donahue]

I'm going through  the "exact"thing,develop to deny.When in Airforce I went to hospital 5 times.4 times for back 1 for shoulder. I had my 3rd back surgery Feb 4 2021 and had C&P examine for back and shoulder Feb 19 2021 but LHI.Aug 10 2021 they reexamine me for right shoulder,nurse didn't  read notes and was dismissive.Aug 26 2021 I requested examiner notes from Janesville Wi.They acknowledged they have my request but won't  give me notes.It's now Nov 24 2021 still no examine notes.Today LHI called me for a reexamination  of my back,even with current bad MRI's.They're trying very hard to I wear me down,I need legal help. Email:Travisafb1982@yahoo.com/cell#   478 787 2446

[GBArmy]

Hi Craig, welcome to Hadit. If you haven't gotten a decision on your claim yet, it is premature for you to involve a lawyer. Need decision first. Actually, getting a re-eval on your back may be a good thing. Bring a copy with you of the med report from the MRI's etc. It has to be in your file with LHI, but bring it and offer it to them if they haven't seen it. Don't be abusive with the examiner for your exam; it will not help you. Just explain what has happened. Get the VA decision, then consider going to the BVA with or without legal assistance. If you are denied, you need to see what is their rationale for denial. You then get additional evidence, if needed, to argue your position. Go thru the process.