Extraschedular Consideration

[Berta]

Please read the info in my Macklem V Shinseki post above

[broncovet]

Berta, Im not quite understanding what you mean, here.

"Extraschedular Consideration" normally applies to Veterans seeking IU who do not meet the minimum 60/70 percent guidelines for IU, unless its me who is not getting this.

Its unclear what Extraschedular Consideration, given my above defination, has to do with Macklem. Maybe he was seeking IU, and because he did not meet the requirements, he was seeking EXTRASchedular consideration for IU, and that is how VA got around paying him?

[Berta]

Gee, I did that to save time but the post didn't make sense

Broncovet, .....what I meant is this part of the Macklem post

"What I still call Extraschedular consideration,which has been traditional done by VACO, has changed.

When the Fast letters were invalidated by the court, as I understand the VBM, the ROs C & P services made the 'extraschedular decision at that point....Machlem is cited in this regard in the VBM. page 960 I think

As of printing/publishing time of the 2014 VBM , the ROs had not implemented any scenario at all, as to what happened to VA claimants, who fell under the Fast letters above, prior to those letters being invalidated.

The biggest problem with this is,in my opinion, a VACO extraschedular favorable decision is binding on the RO.

The VACO ( VHA ,VBA) can read.

but handing 'extraschedular consideration' issues over the the C & P examiners just adds more denials to the Hamster wheel."

I have email in to NVLSP, on something else and if I get chance, will discuss this too with them....

I think it is page 960 in the 2014 Edition of the VBM.

What I see here is that, VA Central Office extraschedular opinions, and all sorts of other types of medical opinions, that would come from doctors with more knowledge than the VAMC and C & P docs,

when the BVA requested this type of opinion for an appeal,

will no longer come from these expert doctors at or affiliated with VACO.

So any vet at the BVA, to include those with a FTCA/1151 issue, might never get a valid VACO opinion , and just keep getting lousy C & P opinions.

Of course that would make it easier for an IMO to become very probative, but how many vets can really afford IMOs?

What the VA did to me recently is so bizarre and illegal that I believe the VAs are misinterpreting those Fast letters in the other post.Fast Letters that have been invalidted by the court....

And as the VBM said, the ROs had no plan at all to deal with those claimants affected when the Fast letters were invalidated.

I presented this question to both the regional and general counsel yesterday:

How can an opinion requested by a VARO from a local medical entity.(like a C & P doc) over rule an established medical opinion from VA Central?

Of course, if the credentials of the C & P person outweighed the VACO doc...that might be a logical reason...but VAMCS usually dont have experts doing C & Ps. And the VA had a chance to over rule a VACO medical opinion, in my case, 18 years ago.

They chose to do it however last week.

This is so bizarre it is funny.

In 1998 I was awarded 1151 DIC due to wrongful death.

The FTCA award was the evidence they used.

The medical opinion for my 1151 HBP current claim,is the same medical opinion that involved the HBP in the FTCA settlement.

There was much more evidence as well, primarly my medical lay evidence and some more peer review reports that supported my charges.

VA could not get out of this wrongful death case.

In the 1151 DIC 1998 award, the VA had made no further attempts to deny my claim.

They had done that twice before (1995 to 1997)and I knocked down the C & P doctor's medical reports that went against the claim.

The OGC and VACO doctors, not only know medical issues in and out, the OGC knows VA case law and regs far better then the ROs.

Now a VA medical 'review' was done.2 weeks ago because I contacted Ms. Hickey ..I have no idea what sort of qualifications this 'review' person had.

Every single medical statement they made in the denial is medically wrong, as they attempted to over rule the past VACO opinion.

The VACO doctor's credentials are superb.She still works for VA Central.

My case is very bizarre, and I know the outcome can affect others....

I sure am not going to put up with some bogus medical opinion , (I have had plenty of them already)

when ,if this happens to others, they will suddenly find a VA doctor can REVERSE a past VA doctor's opinion

and we could see plenty of sudden PROPOSED REDUCTIONS coming to veteran's.

VA Central exrtraschedular favorable opinions in the past that caused awards of BVA cases, (usually TDIU)

may be ripe enough for the VAROs to tamper with now.

Whether the vet's award letter came from the BVA or the VARO.

Since they can obtain a VA opinion that goes against the established VACO favorable opinion.

....the results of my VACO situation will hopefully clarify this more.

I have two other separate awards for Direct SC death DIC.

I am not worried at all about my DIC. I am not worried at all about my claims...

I am worried about how long this additional f---ing battle will take...

a battle that did not have to occur.

But does anyone else here get the point ..........

that my decision ( unless they singled me out)

reflects.........

that VA can get a VA 'doctor' to go against another VA doctor anytime they want,

regardless of how superb the other VA doctor's qualifications are ,

in order to 'deny 'a claim....that had already been awarded.....by proposing to reduce.what the veteran or survivor claimant ( in my case) was awarded long ago.

I don't even think the 'medical' opinion I got even came from a VA doctor, or nurse, or PA...

it is too bizarre...

And they didn't even weigh the evidence for Relative Equipoise.If they did the claim would have been grated.I shaped that into a CUE against them.

BOD regs dont allow CUE...M21-1MR is a different story.

"

Edited March 21, 2015 by Berta (see edit history)

[broncovet]

Ok, Thanks, Berta.

Im gonna try to summarize what you said, because I want to make sure Im getting it. In no small part, this is probably because I do not have the new VBM and you do:

1. A couple of fast letters have become invalid because of Macklem, concerning extraschedular IU (EIU).

2. VACO no longer does EIU, they are done in the VARO now instead. You suggest this is bad for Vets, apparently, because there was a good, knowledgeable doc in VACO that did EIU, and there is no such good informed doc at the RO level handling EIU.

3. You think this may open up a can of worms because VA can now hire a doc who differs with a Vets old medical opinion, and, therefore, get him reduced.

The idea of getting reduced is a nighmare for many Vets. There are several "protections" of ratings and SC, when most VSO's say there is only one: The 20 year protection. Well, there are at least 2 more protections:

A. The 10 year protection for Service connection is similar to the 20 year, but does not protect a reduction in rating, only service connection.

B. The 5 year "stabalized" protection, which seems to be about the same thing as "P and T" protection. Its hard for VA to declare you are P and T in one decision, and then say you got better in another, as that would indicate the decisions are in conflict with themselves.

Katrina Eagle did a fine article on reductions about 4 years ago. I wish that was still up, as it is excellent. (If anyone knows where it is, by all means post the link) Katrina pointed out in 5year (or P and T), the 10 year, or the 20 year, the VA will have to prove the Vets condition "actually improved under ordinary conditions of life" (working, because ordinary people work).

Hypothetical example: So, sure the Vet had a few good days, and a few too many drinks and was able to go to a rodeo and ride a bull. However, it took him a year to recover from being jarred around, and he never did walk right after being thrown off that bull (assuming this Vet was P and T, or disabled for at least 5 years). Further, and importantly, he was not "working" riding that bull, he was playing, and he still can not work, so no reduction for bull riding. Most of us have done stupid things, and that does not mean we have improved under ordinary conditions of life because a little too much alcohol made us think we were 25 again.

However, if this Vet had just gotten rated, especially a "temp" rating, then riding a bull 6 months after his knee surgury, and then back to work Monday Morning as a fitness coach and doing squats, probably means he is pretty much healed up. This sems to be a good example of "protected ratings".

Edited March 21, 2015 by broncovet (see edit history)

[Berta]

This vet had a protected rating that was reduced by his perpetration of a fraud:

"Here, service connection for right eye disability was established in a March 1970 rating decision that assigned a 30 percent evaluation from August 1969. A December 1974 rating decision increased the evaluation to 100 percent effective October 1974, based on October 1974 VA examination findings indicating that the Veteran had only light perception in the right eye. The 100 percent evaluation was in effect from October 1974 until May 2001, thus for more than 20 years. "

http://www.va.gov/vetapp13/Files2/1316804.txt

Protected ratings however are usually never reduced. And very little fraud occurs in VA claims.

This next case seems to reflect better what I mean:


"
8. Whether there was CUE in an April 2003 RO rating decision to the extent it may have severed or reduced a protected disability rating."

"10. The April 2003 RO rating decision to the extent it may have severed or reduced a protected disability rating was not clearly and unmistakably erroneous. 38 U.S.C.A. § 5109A(b) (West 2002 & Supp. 2011); 38 C.F.R. § 3.105(a) (2011)."

"The claim for CUE in an April 2003 RO rating decision to the extent it may have severed or reduced a protected disability rating is denied. "
http://www.va.gov/vetapp12/Files1/1200717.txt

"Reviewing the April 2003 RO rating decision at issue, the RO at that time clearly found that a higher 30 percent evaluation was warranted based on the fact that the Veteran had undergone partial hysterectomy in which her uterus was removed, but not the ovaries. On this basis, the RO assigned a higher 30 percent evaluation under Diagnostic Code 7618, effective March 3, 2003, the date of the Veteran's claim for increase. (Incidentally, a few years later, the RO upon its own favorable determination of prior CUE assigned an earlier effective date of September 1, 1980 for the award of a higher 30 percent evaluation, pursuant to an August 2005 rating decision. This however is not a material fact to the instant claim.) "

On remand
http://www.va.gov/vetapp12/Files1/1200717.txt

Protected ratings regulations are discussed here at the YUKU VBN:
http://vets.yuku.com/reply/358105/Reduction-in-rating#.VQ17r-HRacs

I guess I have VAOLA paranoia because I don't put it past them to consider reducing any protected rating,if they think they can get away with it.

[free_spirit_etc]

A lot of this is over my head --at least at the moment.

Berta,

I am still struggling with how they can even order another medical opinion in your case. It seems like a fishing expedition to me.

[broncovet]

Free Spirit:

Dont feel bad about this "going over your head". Berta has at least as much knowledge as most attorney's, when it comes to VA law, so she can sometimes go over anyone's head. I always appreciate her posts, but, I sometimes have to look up abbreviations or words: DIC, EAP, 1151 claim,

VAOLA. Ok, that is one Berta made up, and its a good one. Its an acronym between "VA and Crapola" VAOLA. Most of us who have dealt with VA very long understand the Kra## that VA puts us through..you know, losing our evidence, not reading our evidence, delay, denial, the list goes on and on and on.

When I read Berta or Asknod's posts, I often have to look up words..and this is especially true with ASK NOD. I do it because learing new words helps keep my mind sharp and has a preventive affect on Alzheimers. One study even suggested brushing your teeth with your left hand (if right handed) forces your brain to take new paths and has a preventive effect of Alzheimers. I have Partzheimers...Alz "part" of the time. LOL

[Berta]

Free Spirit said:

"Berta,

I am still struggling with how they can even order another medical opinion in your case. It seems like a fishing expedition to me."

This is something I have never seen before in 20 years.

The OGC requested an opinion that was regarding my FTCA, actually they had about 4 Peer Reviews done, maybe more.

They would have never settled with me, if any of those opinions went against my established medical evidence of malpractice.

he didnt die of a hang nail ,he died due to multiple malpracticed disabilities, wrong meds, undiagnosed and ubntreated IHD, undiagnosed and untreated DMII, and improperly treated CVA (Stroke)

They already made awards on those bases.to me.

The specific opinion someone went against recently at my RO involves HBP, malpracticed on, only one of the " multiple deviations" in proper medical care that caused my husband's death.

I had not claimed it before and am still eligible for accrued benefist as paid by my 2012 award letter.under 1151.and direct SC.

The opiner they went against from VACO is still at VACO, Dr. Pamela Steele, her healthgrades run down shows the expertise she has in all cardio issues as well as HBP .Her background is impeccable and outstanding.

I dont even think any medical professional at my RO wrote this opinion that denied my claim.

Whoever they were they cannot read.

And then the VA failed to make a statement, (which they MUST make on ALL denials) as to why my claim did not raisee to the level of Relative Equipoise for Benefit of Doubt...another CUE I filed immediately with the VARO.

So I have one fully probative opinion from a Top Cardio doc in DC, and one opinion that reads like it was written by whoever fills their paper cup thing for this VARO's water dispenser

and YOU are the sole person here who gets it.!

and the ramifications it can have for ANY claimant. !

Like I stated somewhere here earlier today,

Am I going to get another VARO 'medical' opinion that my husband is no longer DEAD????

You get it.

THANK YOU!

I am frustrated even being here with this issue.

because if no one cares about my VA problems, so be it,

but if they become victimized about this same crap, then we will hear more input.

YOU GET IT.!

I am VERY grateful to you.

I have to leave for church. I always pray for the VA, and how I hope they will eventually all learn basic VA 101 and apply it to all of our claims., which means they also need to be able to read.

Edited March 22, 2015 by Berta (see edit history)

[kate7772]

I, like free spirit, often struggle when reading your posts, simply because I know so little about all this. But, with each post I learn something new and continue to be amazed and horrified that VA has and continues to cause you so much grief.

I'm so thankful that you continue to fight them, for yourself and all of us.

In my own much smaller way, I am attempting to follow your lead in not letting them get away with anything. If nothing else, I will annoy them until they relent and admit their mistakes. I so wish I had your knowledge. But, I learn a bit more each day from these posts.

Keep fighting and thank you.

Kate

[Buck52]

I think were all blessed to have Ms Berta as a hadit elder member , she knows her VA Law that's for sure!

..............Buck!

[63SIERRA]

one caveat that may affect thier scheme to reduce or deny is the fact that at least as comprehensive of a examination and testing that was used to initially award, must also be used to reduce, so if the spouse whom is now deceased cannot be examined, how can they do an examination.

This is how the cockroach organization called the VA operates, they look for more intricate ways to screw the veterans over, than ways to help.

[63SIERRA]

I learned a new word yesterday.. PROPITIOUS. one day , they will pay, and I will be propitious in my endeavor!!!!

Berta I want to tell you that recently I had a spiritual awakening, I know prayer is powerful and know that God is working in my life. thank you and keep fighting the good fight,

Edited March 22, 2015 by 63SIERRA (see edit history)

[Berta]

WONDERFUL!

I had an experience on Good Friday 2 years ago and it has drastically changing my life,I was always a church goer but changed my religion, last year due to my Awakening..... the basics were the same however...I have always LOVED JESUS and He Loves me!

Sierra said

"one caveat that may affect thier scheme to reduce or deny is the fact that at least as comprehensive of a examination and testing that was used to initially award, must also be used to reduce, so if the spouse whom is now deceased cannot be examined, how can they do an examination."

They have done multiple post mortem peer review exams and C & P exams on my husband, posthumously.....I added up to at least 8 of them yesterday when I accessed the AO IHD exam.

Dead veterans cannot speak for themselves, their spouses have to aggressively challenge every bogus posthumnous C & P opinion they get. that could deny them DIC and any other ancillary survivors benefits..

Postmortem C & Ps rely on established medical evidence but if VA can make something up to deny, they will

They kept a 6 page Autopsy and full toxicology report from a C & P doctor once and he opined my husband died of an overdose of cocaine!

The only place he ever was at, without me was at Day Treatment at the Bath NY VA.The VA van had to transport him there and back home.

I raised so much Hell ,that the RO director's secretary answered a question I had ,with a bombshell.answer.

I asked if the Bath VAMC had any cocaine there.

She said ...........Yes. In their safe....liquid cocaine.

My Congressman , (my next call after hearing this)

called them up right away to see why it was there. long story .......not appropriate here

Make sure your spouses know you want to be autopsied.It wont hurt a bit.

My husband was an organ donor and that is why they did full toxicology and detailed autopsy report.

I had no idea when the Organ Bank called me that this autopsy would be critical to my malpractice claim.

I didn't even know for sure if I had bases for FTCA/1151. But 2 months later I did file those claims.

The C & P doctor (we talked since then) had been pressured by VA to write what he wrote.

He was stunned and angry to learn they had withheld this autopsy from him.

He knew my husband was completely drug and alcohol free.Only his VA meds were in his system at death.

The VA will go as low as they can go, particularly with surviving spouses.

We have to be tough.

That is why I went to a military war school for 4 years.

Edited March 23, 2015 by Berta (see edit history)

[broncovet]

Thank you Berta:

Jesus holds obedient troops in high esteem, such as the Centurion, and I see you do, too. Jesus told the Centurion he had not seen such great faith in all of Israel, and there were some men of great faith there, such as John the Baptist. You have given your husband honor. :

The Faith of the Centurion

5 When Jesus had entered Capernaum, a centurion came to him, asking for help. 6 “Lord,” he said, “my servant lies at home paralyzed, suffering terribly.”

7 Jesus said to him, “Shall I come and heal him?”

8 The centurion replied, “Lord, I do not deserve to have you come under my roof. But just say the word, and my servant will be healed. 9 For I myself am a man under authority, with soldiers under me. I tell this one, ‘Go,’ and he goes; and that one, ‘Come,’ and he comes. I say to my servant, ‘Do this,’ and he does it.”

10 When Jesus heard this, he was amazed and said to those following him, “Truly I tell you, I have not found anyone in Israel with such great faith. 11 I say to you that many will come from the east and the west, and will take their places at the feast with Abraham, Isaac and Jacob in the kingdom of heaven. 12 But the subjects of the kingdom will be thrown outside, into the darkness, where there will be weeping and gnashing of teeth.”

13 Then Jesus said to the centurion, “Go! Let it be done just as you believed it would.” And his servant was healed at that moment.

[Berta]

We all need to have Faith,in my opinion, when dealing with VA and all of our struggles.I am on my second reading course program of the most exciting book that ever existed.(The Bible) I used excerpts from numerous battles of King David and other warriors in it for my degree at AMU, as to their military tactics and strategy.