V.A. disability Decision

[Jimmer]

I am not sure if I am on the right area, if not, please direct me.  I have followed you guys for almost a year, and really appreciate your help.  You guys have a wealth of knowledge, and I appreciate it.   My situation is, back in June 2015, I e-mailed a letter to Alison Hickey, because I felt the V.A.  was "stonewalling" me on my claim for a paralyzed left lung and my   lower back.  Two days later I received a call from a RO, who said she was handling my claim.  I fax to her exactly what she requested.   I had a "nexus" letter from three board certified Pulmonologists for my left lung, had one fill out a DBQ, also a medical opinion DBQ, also medical journal articles supporting my claim.   I had one board certified orthopedic surgeon do the same for my back.  I was told by the RO that I did NOT need a C & P exam.  ( I have e-mail to verify this).  She told me she received everything, and was working on my file.  Two weeks later, I received a phone call, and a letter for a scheduled C &  P exam.  I tried to contact the RO but to no avail.  ( Later found out she was transferred from Phoenix, Az., to San Diego, Ca.).  I went to the C & P exam, and the doctor said within five minutes, it looks like I am going to deny your claim.  He said hover "file a appeal, because you do have a strong case, and you should win on appeal". (His exact words.  He also indicate that the V.A likes him because  "I am very picky, every has to be dotted and t crossed".  My evidence supported a service connected disability.  I feel I was blindsided by the RO, and the doctor.   How should I appeal?  Contact "Bob"?  I also have contacted Senator McCain (I live in Arizona) and was told he has a big hearing on the VA next month and they would like to hear more from me.  Also I have just been contacted about IU, which I mailed the forms in.  I am 80% disability, one 60% one 50%.  Will any kind of appeal hold up the IU?  I know why they are stonewalling the lung, because that one is the biggie.  Sorry for the length, but any help is very much appreciated. 

[TexasMarine]

Every claimed item, needs to be examined in a C&P exam setting.

In my opinion, the C&P "Doc" has no rights concerning granting nor denying any claim.  Their role is to report what they deem to be the facts.

From what you state, the C&P Doc sounds like a quack.  Not only does he NOT have any authority to grant or deny, he actually boasted about the VA "liking him".

Your pulmonary specialist(s) and their nexus statement should be given great weight in any decision, certainly more weight than the VA's C&P Doctor.

How should you appeal?  Gather all your proof documents, and file a "Notice of Disagreement" (NOD), bypassing the "special DRO review", and go straight to the Board of Veterans Appeals (BVA).

Much information (detailed), is already contained on this site.  All of it good advice.

http://community.hadit.com/forum/81-appealing-your-claims-nod-dro-bva-uscavc/

is a good starting place.

[Jimmer]

Texas Marine, I apologize, I should have stated I did have a C & P exam on this two items in January  2015.  The C & P doctor did not have all my information, so she denied me.  When the ratings officer called me, I told her that I had tests, letters from the Board Certified Specialists establishing it was a SC disability.  She said if I could get the doctors to issue a new letters, have then fill out the DBQ forms and a medical opinion DBQ forms (never seen those forms before) that I would NOT  have to have another C & P exam.   I  submitted everything to her, and she said it was exactly what she needed.  I couldn't get ahold of her when the second C & P was scheduled.  When I seen the doctor for the second C & P exam.  He stated " I have been reviewing your file,  and it looks like I am going to  say less likely then not opinion".   The he stated "however you have a strong case, so just appeal, you should win".  He claimed  that My SMR records showed my injury occurred from a fall of over 17 feet, in the service  that when I told them about the pain,  in my SMR, I said it was my left chest area, and didn't specify my lung.  He also said when I indicated my back pain from  the fall in the service, , I didn't indicated precisely it was the lower left section of the back.    Thank you for the information, Texas Marine, I will definitely file  NOD and go straight to BVA.  Much appreciated.

[FormerMember]

<<<Every claimed item, needs to be examined in a C&P exam setting.>>>

Not true. I have plenty of evidence to show VA will grant based on private records. My most recent was a private skin survey submitted for the first time at a BVA hearing. The VLJ granted the claim increase from 10% to 30% based entirely on the evidence submitted. He certainly could have remanded it back to the RO for a C&P but I signed a waiver of review in the first instance and he used the private "C&P". And yes, a doctor doing the C&P for VA has no decisional authority. He merely reports what he sees and diagnoses. A VA examiner, usually an ARNP or PA (C) at the RO, is the one who makes the call up or down. This can be rebutted if discovered soon enough. VA often loses these pissing matches when you are using a private doctor with a real M.D. after his name- especially one who is a recognized specialist in the field in question. Vets  with good legal representation usually win- but on appeal when they discover a bed pan changer CNA has upstaged a noted John Hopkins specialist.

[Jimmer]

Asknod, Thanks for the info.   I really felt I had all the my information in order, in fact I let a VSO person look at it, and he said it was as complete and througho as he had seen.   I knew within two minutes of meeting this C & P doctor, that it was in trouble.  He keep on saying "I am picky, and I look for things other C & P doctors don't".   I am definitely going to appeal this decision.   

[jbasser]

Jimmer, I was diagnosed with left phrenic nerve paralysis several years ago. It is service connected. All you need to do is to have a doctor nexus that paralysis with an event in service. Some tests that are included are as follows. An elevated diaphragm on xray, a positive sniff test under live xray. An EMG into the actual diaphragm should have been done. It is a very painful test but it is necessary. 

 

Some things to look out for as condition continues are. Scoliosis caused by the raised Diaphragm.  Pulmonary Hypertension because the heat is pumping blood into a paralyzed lung. 

This issue is a serious one so keep on top of it. It should be service connected.

 

J

[broncovet]

Jimmer

   Asknod is correct.  The VA requires medical evidence, not necessarily a C and P exam.  The C and P exam is not a magic wand which grants/denies your benefits, that evidence can and often does occur outside the "C and P" exam setting.  

   The VA is not supposed to require a  C and P exam if they already have documentation of necessary medical evidence.  Not only is that redundandt and costly (medical exams cost money), but it is "developing to deny" if you already have the requisite evidence.   The purpose of the C and P exam is to provide the required documentation, when one or more doctors were unclear, such as they did not say whether or not your condition was related to military serivce, or if it had more to do with a car accident you had in 2012, after you got out of the military.     

   Please humor me with an example.  YOu go to your regular doc, and he makes an opinion such as "This Veteran has PTSD, and its at least as likely as not due to his trauma in his military war experience."  

 

     NOw, some rating specialist comes along and says, "Oh, heck, the boss says we are approving too many PTSD claims, so I need to find a good reason to deny.  I will order a new C and P exam to see if the new doc will find some loophole where I dont have to award.  Maybe he will say that his PTSD has nothing to do with watching his friend burn to death from and IED blowing up his vehicle, maybe he will say its because his wife left him."

    In this example, that is developing to deny.  They already have the evidence, so they are doctor shopping for negative evidence.  If you go to 10,000 medical exams, its almost certain at least one will give unfavorable evidence to deny.   The VA is prohibited from developing to deny, but that does not stop them from doing it, IF YOU ALLOW IT AND DONT APPEAL.   You need to remember the VA is like a rebellious teenager who does everything he can to break the rules so that he may pesue his own agenda of wild partying, wine, women and song.   The VA does not need to comply with the rules, they just need to not get caught.   The VA is hoping you wont "catch" them developing to deny by appealing on that bases.    Even if you do catch the VA, by the time 4 years rolls around the teenager is grown up and moved out, and you probably have a new DRO, so the rebellious teen and VA get away with it every time.   Its a broken VA and the sooner you realize it, the sooner you can move on to an appeal.  The VA likes you to think 95% of VARO decsions are "correct", because most Vets dont appeal.  Veterans dont appeal for many, many reasons most of which have nothing to do with the "correctness" or lack therof, of the RO decision.  For example, the Veteran may be too sick, he may get advice from his VSO not to appeal, he may be dead, or he may not have had a home where the decision could be mailed to so he didnt even know he was denied within a year.  None of these things has anything to do with "how correct" a RO decision is, but VA thinks all those unappealed decisions are "correct", regardless of how many errors the decison had.   

Edited December 13, 2015 by broncovet