Va Medical Opinions

[free_spirit_etc]

On my husband's inital cancer case - he did not SEE the VA examiner. The examiner just issued an opinion.

According to the BVA Handbook -- the veteran is supposed to be notified when a medical opinion is requested --and also is to be given a copy of the opinion and time to respond before deciding a case.

Does this also apply to the RO??

Is it the basis for a CUE if a decision was made without notifying us that an opinion was requested or providing us with a copy? Is not affording a veteran due process the basis for a CUE?

The VA examiner used a C&P exam report -- but my husband never SAW him --and he stated that he was asked to give an opinion after reviewing the medical records.

http://www.va.gov/publ/direc/BVA/BVAHB8440.htm

SECTION V. 38 C.F.R. § 20.903 COMPLIANCE

2.80 RESPONSIBILITY FOR COMPLIANCE PROCEDURES

The Board’s Rules of Practice require that we notify appellants and their representatives when we request an opinion from VHA, AFIP, an IME, or GC. 38 C.F.R. § 20.903. This is a two-step process, and is the responsibility of the Administrative Service.

2.81 STEP ONE—NOTICE THAT AN OPINION HAS BEEN REQUESTED

The appropriate administrative team will prepare a letter for the signature of the Director of the Administrative Service informing the appellant and the representative, if any, that the Board has requested the opinion. Date and mail the notice letter after the Director signs it. File one copy of the letter in the Briefface and, since the applicable VA records folder will already have been dispatched with the opinion request, temporarily store another copy in the Briefface to file in the applicable VA records folder when it has been returned.

2.82 STEP TWO—FURNISHING A COPY OF THE OPINION AND AN OPPORTUNITY FOR RESPONSE

The second step occurs when the Board receives the requested opinion. At that time, the appropriate administrative team will:

File the copy of the initial notice letter that was temporarily stored in the Briefface in the applicable VA records folder. See ¶ 2.81.

If the opinion is a GC opinion, make sure that the Office of the Chief Counsel (01C) has seen the opinion and completed its processing. See ¶ 2.69. If not, send the file to (01C) before proceeding.

Mail a copy of the opinion to the representative, or to the unrepresented appellant, with a cover letter allowing a period of up to 60 days from the date of mailing of the copy of the opinion for response. Also see ¶ 2.83.

File a dated copy of the cover letter in the applicable VA records folder and in the Briefface.

Establish suspense-date control measures.

If a response is received, file the original in the applicable VA records folder and a copy in the Briefface.

After filing the response, or when the time for response has passed, return the file to the Board member(s) to whom the case is assigned.

Free

[Guest jstacy]

Free Spirit, The RO's playbook is called the M21. They use that as a guide ( supposed to anyway). You can search the M21 under the www.va.gov and type in warms. The first hit is the Web automated reference system. Click on it and search under the M21 for your information, I could post it here but i dont think there is enough space.

I have been fortunate enough to win my claims without going to the BVA. i can also tell you that on 2 occasions t here have been medical opinions requested on my claims and both have been returned favorable. The VA notified me with a form letter.

I hope I have helped as I have given you the information to dig into answers.

[free_spirit_etc]

Okay. Thanks. I will dig deeper in the M21 book. Haven't been able to find the whole thing at once -- just bits and pieces. But when I read some of the appeals --and court cases - they seem to say the M21 is just a manual -- NOT really the law... so not following the manual is not a matter of not following the law.

But when I search the law -- it seems to talk about everything the BVA must do (not the RO).... actually - some of the law is about the Secretary (which all levels are actually acting in the Secretary's behalf).

So I keep trying to find what LAW applies to the RO -and what LAW applies to the BVA.

It seems to tangle up.

Free

Free Spirit, The RO's playbook is called the M21. They use that as a guide ( supposed to anyway). You can search the M21 under the www.va.gov and type in warms. The first hit is the Web automated reference system. Click on it and search under the M21 for your information, I could post it here but i dont think there is enough space.

I have been fortunate enough to win my claims without going to the BVA. i can also tell you that on 2 occasions t here have been medical opinions requested on my claims and both have been returned favorable. The VA notified me with a form letter.

I hope I have helped as I have given you the information to dig into answers.

[Vike17]

Free Spirit,

CFR 38, §3.328 states;

(a) General. When warranted by the medical complexity or controversy involved in a pending claim, an advisory medical opinion may be obtained from one or more medical experts who are not employees of VA. Opinions shall be obtained from recognized medical schools, universities, clinics or medical institutions with which arrangements for such opinions have been made, and an appropriate official of the institution shall select the individual expert(s) to render an opinion.

(B) Requests. A request for an independent medical opinion in conjunction with a claim pending at the regional office level may be initiated by the office having jurisdiction over the claim, by the claimant, or by his or her duly appointed representative. The request must be submitted in writing and must set forth in detail the reasons why the opinion is necessary. All such requests shall be submitted through the Veterans Service Center Manager of the office having jurisdiction over the claim, and those requests which in the judgment of the Veterans Service Center Manager merit consideration shall be referred to the Compensation and Pension Service for approval.

© Approval. Approval shall be granted only upon a determination by the Compensation and Pension Service that the issue under consideration poses a medical problem of such obscurity or complexity, or has generated such controversy in the medical community at large, as to justify solicitation of an independent medical opinion. When approval has been granted, the Compensation and Pension Service shall obtain the opinion. A determination that an independent medical opinion is not warranted may be contested only as part of an appeal on the merits of the decision rendered on the primary issue by the agency of original jurisdiction.

(d) Notification. The Compensation and Pension Service shall notify the claimant when the request for an independent medical opinion has been approved with regard to his or her claim and shall furnish the claimant with a copy of the opinion when it is received. If, in the judgment of the Secretary, disclosure of the independent medical opinion would be harmful to the physical or mental health of the claimant, disclosure shall be subject to the special procedures set forth in §1.577 of this chapter. (Authority: 38 U.S.C. 5109, 5701(B)(1); 5 U.S.C. 552a(f)(3))

[55 FR 18602, May 3, 1990, as amended at 67 FR 46868, July 17, 2002]

Also see M21-MR, Part 3, sub-part 4, chapter 3, section A, §9.

Vike 17

[free_spirit_etc]

Thanks !Vike!!

It gets so frustrating to search and search and search. I am still not totally clear though. This applies to an Independent Medical opinion. The BVA manual says notification and the right to respond has to be given for IMO AND VHA opinions which are BVA generated. The M21 doesn't mention any rights of the veteran in regard to this.

Looking for a way they violated the law at the RO level...to see if it can be part of a cue.

And actually -- someone horrifying was their section on veterans rights in C&P exams -- the "rights" they listed are:

1. the veteran doesn't have the right to be accompanied by counsel to the exam.

2. The veteran does not have the right to record the exam.

Those are RIGHTS??????????????

Ack!!!!!!!!!!!!!!!!!!!!!!!

Free

Free Spirit,

CFR 38, §3.328 states;

(a) General. When warranted by the medical complexity or controversy involved in a pending claim, an advisory medical opinion may be obtained from one or more medical experts who are not employees of VA. Opinions shall be obtained from recognized medical schools, universities, clinics or medical institutions with which arrangements for such opinions have been made, and an appropriate official of the institution shall select the individual expert(s) to render an opinion.

(B) Requests. A request for an independent medical opinion in conjunction with a claim pending at the regional office level may be initiated by the office having jurisdiction over the claim, by the claimant, or by his or her duly appointed representative. The request must be submitted in writing and must set forth in detail the reasons why the opinion is necessary. All such requests shall be submitted through the Veterans Service Center Manager of the office having jurisdiction over the claim, and those requests which in the judgment of the Veterans Service Center Manager merit consideration shall be referred to the Compensation and Pension Service for approval.

© Approval. Approval shall be granted only upon a determination by the Compensation and Pension Service that the issue under consideration poses a medical problem of such obscurity or complexity, or has generated such controversy in the medical community at large, as to justify solicitation of an independent medical opinion. When approval has been granted, the Compensation and Pension Service shall obtain the opinion. A determination that an independent medical opinion is not warranted may be contested only as part of an appeal on the merits of the decision rendered on the primary issue by the agency of original jurisdiction.

(d) Notification. The Compensation and Pension Service shall notify the claimant when the request for an independent medical opinion has been approved with regard to his or her claim and shall furnish the claimant with a copy of the opinion when it is received. If, in the judgment of the Secretary, disclosure of the independent medical opinion would be harmful to the physical or mental health of the claimant, disclosure shall be subject to the special procedures set forth in §1.577 of this chapter. (Authority: 38 U.S.C. 5109, 5701(B)(1); 5 U.S.C. 552a(f)(3))

[55 FR 18602, May 3, 1990, as amended at 67 FR 46868, July 17, 2002]

Also see M21-MR, Part 3, sub-part 4, chapter 3, section A, §9.

Vike 17

[free_spirit_etc]

I am thinking the difference might be that if the BVA requests the opinion --and you aren't give notice of it, or the right to respond -- you have been denied due process --of being able to have the evidence reviewed by the AOJ. --

[Josephine]

I am thinking the difference might be that if the BVA requests the opinion --and you aren't give notice of it, or the right to respond -- you have been denied due process --of being able to have the evidence reviewed by the AOJ. --

The BVA remanded my claim to the AMC in Washignton and within the remand my claims file was to go back to the two psychiatrist which held the last examination. I will paste from the remand:

7. After the above development has been completed, the veteran's claims file should returned to the board of VA psychiatrists who participated in the April 2005 examination for clarification of the provided opinion. They should be requested to review the record and reconcile their opinion as to etiology in light of the evidence added since their examination of the veteran, including the May 2005 statement of Dr. B C.

C------ and the January 2006 statement of Dr. M P-----.

I did receive a letter from the AMC that they had sent my claims file to them for a new opinion.

The two psychiatrist replied:

C-file Read

Read Dr. C Letter no evidence to alter conclusion -Signed Dr. L

Read Dr. P Letter no evidence to alter conclusion - Signed Dr. B.

I sent a letter to the AMC that the two psychiatrist did not follow the remand per - 38CFR 19.8 & 19.9 and others rulings that are applicable.

I called the medical center and ask Dr. B to be present, " I was told no".

Josephine

Edited November 9, 2006 by Josephine (see edit history)