Berta Posted November 4, 2015 Share Posted November 4, 2015 If they completely failed to consider or list as evidence, the IMO from Dr Bash and you have proof that they had it, this is a violation of 38 CFR 4.6, due to their failure to consider probative evidence. My RO not only ignored my initial IMO from Dr Bash, they ignored an additional one he prepared after I got a SOC. This was in 2005-2006 and I sure would have handled this differently if this happened to me these days...by asking them to CUE themselves on the SOC.That claim took over 6 years and of course the BVA acknowledged the IM0s and awarded."The VA broke their own policies and rules by omitting the very, very, very, very (must I say more) important 2013 EMG report". That too defies 38 CFR 4.6!"Couldn't I ask the BVA to combine both of these appeals into one for them to hear it since they are all related to my spine and they could affect each other on the outcome? Its called Inextricably Intertwined. Here is how the COURT says it "The Court has held that when a determination on one issue could have a significant impact on the outcome of another issue, such issues are considered Inextricably Intertwined and the VA are REQUIRED to decide those issues together. Harris v. Derwinski, 1 Vet. App. 180 (1991)."That is a great point. I am not sure how you could do that but maybe raising that issue right away for the new appeal but personally I think you might be able ro raise enough hell (maybe via IRIS) that the RO will be forced to acknowledge the IMO and the EMG report.That was funny what you said about glasses and maybe quite true RPowell. I am recovering from cataract surgery which was a piece of cake but the antibio eye drops are causing me great fatique...and this AM I started to think how good glasses are really a modern invention , although binaculars and telescopes have been around a long long time,and how past great commanders as well as , say the Pharaohs and King Solomon must have had to determine the people with the best close and distant eyesight to prepare for battles and to engineer large building.( not to mention to discover America)...but stillI think many people at VA can certainly read well...but they just dont want to because every regulation they can get away with defying and every piece of probative evidence they can ignore, will help tyhem deny the claim and get it off tyheir RO desks fort years while it is in appeals.VA is finally getting hit on their defiance of timely and proper medical care these days, such as lawsuits filed on at Phoenix etc etc...but we all often experience the same thing as claimants....a lack of timely and proper legal care over our evidence, when it comes to our claims.I think the very fact that IMOs will often turn around negative C & P exams is proof that these C & P docs are incompetent (or ordered to be) and they, more than the raters or anyone else at VA ,control the outcome of our claims.VA knows not every vet can possibly afford an IMO from a real doctor, stacking the deck against thousands of deserving veterans. flores97 1 Link to comment Share on other sites More sharing options...
Moderator broncovet Posted November 4, 2015 Moderator Share Posted November 4, 2015 There are 2 issues here, and you need to deal with them differently:1. The VA has in its possession Dr. Bash's exam, and, either did not read it, or did not consider it and give a reasons and bases as to why they rejected favorable evidence. This is a Colvin Derwinski violation, as the Va is required to consider all favorable evidence and give a reasons and bases as to why they reject favorable evidence. If the VA find's Dr. Bash's exam not persuasive, they have to say why that is so. 2. The VA does NOT have Dr. Bash's exam or other favorable evidence. Its hard to know if Va has your evidence or not, since they are good at losing and shredding it. If they do not have your favorable evidence in your file, then you need to resubmit it. As a suggestion, you might try sending an IRIS email, and ask, "Do you have Dr. Bash's IMO dated xx-xx-xx in my records?" I noticed that exam was not considered in the most recent SOC, so if you dont have it, I will resubmit. Under Bell-Derwinski there is something called "constructive receipt" of evidence, but that often applies to things like VAMC appointments. Dont count on Bell helping you with Dr. Bash's exam, resubmit it. I would resubmit it in either case "assuming" the Va lost your evidence, after all, its required they consider all evidnece. flores97 1 Link to comment Share on other sites More sharing options...
rpowell01 Posted November 5, 2015 Author Share Posted November 5, 2015 Okay well I hired somebody to correct everything. Its not the VA didn't have Dr. Bash's evidence as they used it to grant my TDIU around March 2014. So they have both reports. They just didn't use it. Last there is one EMG that was conducted by the VA, evidence in their possession and not once was it listed or even talked about in the SOC. I am going to ask for a hearing with the AOJ before everything goes to the BVA and requesting a new decision with the submitted new evidence which is in fact the EMG, actually now 2 EMG reports and I am asking them to make a decision of P&T. They approved the upper radiculopathy and if they approve the lower radiculopathy this should well over the doubt at hand that I should be P&T. If I get P&T with no future schedules I will drop the bladder and bowel incontinence. Yes these two things could mean extra money but what I am doing is not about the money but about my family. I'm 47 years old and have a spine of a 70 year old. My life is over with so I want to make sure my family is taken care of. Again its not about the $$$ with me. God supplies all my needs. Link to comment Share on other sites More sharing options...
rpowell01 Posted November 9, 2015 Author Share Posted November 9, 2015 Can anybody point me to the right direction on where I can find information on the Rating of Neuropathy that is caused by Chronic Lumbar Radiculopathy? I am asking this because shouldn't Neuropathy give a higher rating whenever there is chronic radiculopathy noted on an EMG? Understand where I am going with this? Last is there any Federal Code or CFR that says the C&P Examiners and the Raters are exempted from being sued by veterans who say the C&P examiners blatantly lied on the veteran's C&P Exam even when the veteran had a witness in the room taking notes? Just curious because I may go find an attorney. I know a few VA Compensation Attorneys who may want to take this on if the Examiner and Raters are liable. Morgan and Morgan "For the people" I know for a fact is one. They are a large firm based in few states. LOL Link to comment Share on other sites More sharing options...
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