Hadit For Real

[cowboys4life]

Listen I have for the most part traded very lightly not blowing my cool, letting the process play out and having all the patience of Job. Now I am at a critical point and I have HAD IT!!!!!!!!!!! I was homeless up until a few days after thanksgiving so my family and I are now in an apartment thanks to the VASH program. I can not help but get pissed off when I think about the egregious errors made by a C&P examiner for blatantly saying that I did not have a residual scar from two previous heart surgeries. I had the Judge even flustered about the obvious disregard for the way this claim has been worked; for almost thirteen years and counting. Had it not been for this one examiner who has opined on more than one of my issues, I would not have had to wait yet again for things to be corrected. The judge wanted to, I believe, give me a favorable award without having to remand my case. However her hands were tied because of the many missing reports pertaining to my many conditions, one of which has never been adjudicated on, while another I have never received a SSOC. From the wording of her remand it was not lost on her that these people were just grossly negligent in their duties to assist me. I'm sitting at 40% total with a rating of 30% for CAD and 10% for pes planus. She has taken them to task to give me a rating consistent with my heart condition, she also wants that same jerk doctor to explain how he can differentiate my coronary artery disease and my atrial fibrillation and pace maker implant which he claims happens separately and are not related to my heart surgeries which caused scarring on my heart which leads to irregularities of the heart. Even though I had developed atrial fibrillation during the recovery period of first heart surgery. At least it is secondary to my claimed heart disease which is not under the Nehmer guidelines. The Judge also said that at best I should have been giving the benefit of doubt when these issues were rated on. So the shmuck that gave me that standard F$^$k You exam should at least be reprimanded for his unprofessionalism when he neglected to read the file, for he would have seen that I was already rated for residual scar at 0% and I was going for an increase of that rating. Thank you all and especially for the undersecretary's email address. I actually got a call from the directors' office at Bay Pines Regional office.

[pwrslm]

I feel for ya.  The damage these people do when they omit things in these C&P Exams is substantial.  When these people, representing themselves as medical professionals, entrusted by the VA, and ourselves, to provide a legal, comprehensive examination, fail to acknowledge facts available to them, and acknowledged to have been reviewed by them, as part of the examination, which results in the creation of an entry into our medical records, it is a crime under federal statutes. 

Its called falsification of medical records.  I'm working on this my self, in 2 exams, at this point.  I am also working on documenting the failure of VA PCP's and Specialists in their duty to properly diagnose and treat the conditions we have in a timely manner.  When all of these folks fail to account for our conditions, omit facts that are found in our records, which are obvious and a permanent part of the VA Treatment record, (or our SMR's, if they noted that they reviewed those records as well) and they submit this information into the record, then it is falsification of the record.  It happens to many times for it to be just the occasional "oops, I must have missed that".  Mistakes can occur, don't get me wrong, but when the same basic error occurs ten thousand times, the concept of random error is removed, and once that is done, then intentional omission is a valid issue to introduce into the court system, falsification of medical records is a crime.

These medical professionals have duty to provide a competent level of care in documenting (and treating) our conditions, this exceeds the level of care you would find in our day to day behavior.  If you call a plumber, you expect him to fix the leaks in your plumbing.  When you see a doctor, you expect that your medical condition is properly diagnosed and treated. It is a much higher level of competence than if you hired your neighbor to fix your plumbing, or called in a witch doctor to heal you. 

Under the Law, this is a level of care which should meet or exceed the professionalism demonstrated by competent medical professionals across the entire spectrum, if they claimed that they reviewed our treatment records, it indicates that they have, and must acknowledge, our treatment history, and competently apply this knowledge when they file the results of the examinations that provide for us, to the US Government's representatives (VARO) who requested this examination.  Just because these folks are all government employee's,  or contractors, of the same entity, does not remove this burden that they have to provide a competent medical opinion.

 

I am waiting for my case to complete at this time, after that, I am making a detailed, documented complaint to the VAOIG, and sending copies of that complaint to the Sect' of the VA, Undersecretaries of Health and Benefits, as well as, news outlets, in order to get this info out there.  It is a systemic issue I believe, and the more people who make complaints of falsification of medical records to the VAOIG, the more likely it is that we can force a change in this behavior.  If you go to your primary care provider, it is his/her professional duty to assist you in your efforts to obtain valid medical treatment for conditions that exist, and to aid in the determination of the cause of those conditions for an accurate assessment of your physical health.  The etiology of medical conditions are always a part of any diagnosis that they make, and it is an essential part of how they come to treatment conclusions.  The intentional omission of facts in this process is a breach of trust.

Edited December 31, 2015 by pwrslm

[broncovet]

The VA must correct erroneous medical records, promptly, or give you a reasons why not when you request an amendement of same.  Dont let em get away with regulatory violations.  They will unless you call em on them.   Once these erroneous records are corrected, you probably have cause to "reopen due to new and material evidence" contained in 38 CFR 3.156.   My advice is to go to your VSO, and ask him to make a copy of these regs, below.  Now, get a copy of those medical records which are in error.  You should be able to get them at the release of information at your VAMC.   Then take them with you to the doc who gave you the exam, and politely ask him to amend your records which are in error.

Do your homework and show him precisely which statements are in error.  The 5 P's work when other stuff does not.  Proper Preperation Prevents Poor Performance.   Ask for a copy of the amended records.

Next, resubmit those corrected records as n and m evidence.  The VA has to adjuticate the issue of whether or not you submitted new and material evidence sufficient to reopen the claim.  Be careful, here, tho, as there are circumstances where you hornswaggle your own effective date.  However, you should be fine as long as you are still in the appeal period, as that goes back to when you first applied.  First amend the records, then reopen with 3.156:

 

38 CFR 1.579 - Amendment of records.

 

 

 

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§ 1.579 Amendment of records.

(a) Any individual may request amendment of any Department of Veterans Affairs record pertaining to him or her. Not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date or receipt of such request, the Department of Veterans Affairs will acknowledge in writing such receipt. The Department of Veterans Affairs will complete the review to amend or correct a record as soon as reasonably possible, normally within 30 days from the receipt of the request (excluding Saturdays, Sundays, and legal public holidays) unless unusual circumstances preclude completing action within that time. The Department of Veterans Affairs will promptly either:

(1) Correct any part thereof which the individual believes is not accurate, relevant, timely or complete; or

(2) Inform the individual of the Department of Veterans Affairs refusal to amend the record in accordance with his or her request, the reason for the refusal, the procedures by which the individual may request a

review of that refusal by the Secretary or designee, and the name and address of such official.

.....

38 CFR 3.156 - New and material evidence.

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§ 3.156 New and material evidence.

(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.

(Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(Authority: 38 U.S.C. 501)

(c) Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

Edited December 31, 2015 by broncovet

[waccamawwild]

You are not alone in your attempts to right a VA wrong! Many who are on this website are baffled by the endless shenanigans of the VA. Take heart that your brothers and sisters are here to help you!

[Navy04]

Sorry for what you are going thru bud. What I dont understand is if you had all of the Needed Evidence then how did you end up on the Appeals Route? I was denying a bunch of stuff when I was first Medically Retired in 2013. Within the Next 18 months, I just Reopened the Denied Conditions and Submitted the Same Original Evidence and all but a few were Granted. Physical Evidence is hard to argue with, even the VA cant deny it, when it is in front of them. Good luck and wish you the best.   God Bless

[oz]

When I went for c&p I took cardiologists DBQ, copies of very recent EKG, copies of very recent bloodwork done at civilian lab and copies of pertinent pages and notes from va exams (have more than 500 pages of records here at the house) and asked him if there was anything else I could do to make his job easier. I don't have a decision, but I am hopeful.

[Buck52]

Right on broncovet  good information and good work buddy!

 

..............Buck