Need some guidance -scratching my head on a denial

[AF_Comm_Vet]

-  Filed a year ago for a lumbar spine condition caused by a severe auto accident in-service. After an initial denial, the claim was finally approved after doing a re-open and submitting an new IME.  The NEXUS was made between the Lumbar spine injury and accident based on civilian ER reports where I was transported.  Was scheduled for a C&P exam prior to decision, and the C&P physician actually rated higher than I expected (after doing X-rays) at 40%. 

-  Several years ago I started having headaches, neck stiffness, and occasional  Pins & needles in the arm, not severe or constant so blew it off.  Four months ago it became severe, started missing work left and right, and pain prevented even sleep without heavy meds. Was referred to an Orthopedic doc and later an Ortho Surgeon.  MRI's and X-rays were accomplished in Jan with bad news, severe degenerated discs and cervical bone structure.  The Surgeon said this was pretty severe for my age, and after describing the accident he agreed it was likely the cause of the damage which had been brewing for years. 

- Filed a FDC for Cervical  Spondylosis and degenerative cervical disease.  I referenced the earlier evidence of the accident in-service. I also had a thorough IMO done by one of the Physicians mentioned in the forums often (not including the name), the IMO was very thorough with a NEXUS statement and citing previous cases.  Submitted the FDC in Early Feb.

 

 Well, I after I saw the FDC move from Review to Decision process les than tend days after submitting I became concerned. Sure enough, it was returned denied as "Not Service Connected".    

 

OK, I get it....an IMO doesn't guarantee anything, but based on my evidence and previous related injury  I thought I would at least be granted a C&P before the case would be tossed back in my face.    Any thoughts?? 

 

Thanks

 

 

Edited March 13, 2016 by AF_Comm_Vet
qeqweqww

[broncovet]

Berta is correct.  You always want to compare the Cfile, with the decision, as these may not "match up". 

The decision is supposed to list "the evidence considered", and, then the VA is supposed to give a well reasoned "reasons and bases" for decision, in part, to facilitate appealate review.  

Often the decision lists stuff like, "The Veterans medical file from 2001-present".  

They SHOULD be able to point to a specific piece of evidence, such as a medical exam by Dr. P on 11-12 

2009 which supports the VA conclusion.  

Sometimes decsions say, "The record is absent for any evidence of xxxx".  YOu need to dig here.  Is the record  really absent of this?  Often its right there, in black and white, and VA top sheeted you and did not read it.  

When you appeal, you want to start with the cfile and "reasons and bases" for decision.  I try to refute the reaons.   If the cfile does have evidence I say something like this:

"The decision states there is no evidence of an elbow injury in service.  However, on May 13, 2001, the Veteran was treated in his sick bay where a cast was put on L elbow.  See SmR's and medical exam by dr. z on May 13, 2001. "  

[Berta]

I need to clarify what I said. A vet does not even need to cite the Privacy act to get a copy of a C & P done at a VAMC.

They can if they want too.

They will need FOIA I guess for a QTC exam, but still I really don't think they would need FOIA, once the decision is made.

VA pulled a crock of S--t over on us all when they decided that they 'own' the QTC C & P exams, until they use them to render a decision.

That has caused them to violate the Rights of Discovery.(which we don't have)..and this would never stand in a civil court.

Since they 'own' the C & P exam, they also pay for and own the doctor who does the exam.

Vets obtaining an IMO prior to even getting QTC results, put the IMO doc at a disadvantage because that IMO doc does not know what the exam says. So they are forced, if denied due to the exam, to get an IMO after the fact, once the VA releases the QTC exam,which might turn the tide for them...but also adds time to the claim...and the RO might not even consider the IMO.

In cases like that a Reconsideration Request on the denial with a copy of the IMO would be in order. Still they could try to piss away the NOD deadline

by not reacting the this type of request, and even filing a NOD will add more time to the claim.

I don't know why the big vet org reps have not raised a ruckus when this QTC BS began.

oh I do know why....

they don't care...they get paid whether a claim succeeds or not .

 

Edited February 20, 2016 by Berta

[Berta]

AF--comm-vet

do you have all of your VA and private medical records, and your STRs, and 201 (military Personnel file)?

Did the IMO doctor have everything too and did they follow the "Getting an IMO" criteria here at hadit"?

Sorry if you answered that question here before.

I found C files to often be quite limited. I cannot recall any significant medical records in my C file,when my husband died, and then I became a claimant.

Except for a critical Peer Review done for my FTCA case that VA told me had Never existed .

The regional counsel -VA and Peer doctor said it supported my wrongful death charges, mere months after I filed the SF 95.

They disappeared from VA too

It was right at the bottom of my C file.! I found it years later when my USAF daughter insisted I reopen the death claim. and got w new copy of my C file.

I had to FTCA them without it but I used it for my AO IHD death claim.

99% of the evidence I used for the wrongful death malpractice claim (FTCA) was within my dead husband's VA medical records files.

So maybe the C file will hold info to help a claim but  maybe it wont.....always best to have a copy anyhow

 

[AF_Comm_Vet]

15 hours ago, Berta said:

Vets obtaining an IMO prior to even getting QTC results, put the IMO doc at a disadvantage because that IMO doc does not know what the exam says. So they are forced, if denied due to the exam, to get an IMO after the fact, once the VA releases the QTC exam,which might turn the tide for them...but also adds time to the claim...and the RO might not even consider the IMO.

 

 

Berta, You hit the nail on the with that statement.  The very reason I filed the FOIA in August was to obtain the QTC provided x-ray and diagnosis of my Lumbar Spine injury.  Little did I know that this would become critical evidence when I later needed to create a NEXUS for the Cervical condition in Nov-Dec.    I truly believe that I was placed at a disadvantage by having the QTC exam withheld until after the claim was denied, and I find it highly suspect that the claim went from review to denial in only five days and the FOIA containing the QTC results was provided only HOURS after they denied the claim.   Had the IMO physician had the QTC results in-hand he could directly reference the document forcing the RO to accept the  in-service injury correlation  between the Lumbar and Cervical spine conditions.

 

My question Berta, should I consider just re-opening the claim?  I could upload the QTC results as "new and additional evidence"; then submit a sworn statement that the QTC results are considered as a new evidentiary exhibit referenced in the IMO.  Through a 'de nova' the  RO would have to justify completely  ignoring their own QTC diagnosis and its physician documented  relationship to the new condition in order to again deny the claim.

 

I considered re-opening as a CUE but feel the bar is too high;  I don't have any hard evidence that they "purposely" tried to derail my case based on the FOIA delay, and "conspiracy-theory speculations on my part probably wont get any traction beyond drawing laughter at the VARO.

[Berta]

I hope you can scan and attach the decision here when you get it.

That would determine the best response you can make.

I re read your posts and it hit me that maybe the IMO Dr. was Dr. Bash and maybe they  completely ignored his IMO...been there done that...they ignored 2 IMOs from him in my case.

Regardless of who did the IMO, the decision will show us the best avenue of approach on this.

You don't have to tell us the IMO doc's name......

I won that case at the BVA in 2009, after getting a double DRO review, under CUE, in which my former vet rep claims he personally handed the DRO the IMOs....but either she still didn't know how to read or the vet rep was blatantly lying....then I tried a new tactic when the VA last year ,ignored a VA strong medical opinion that resulted from my FTCA case.... An opinion rendered in 1997 from the TOP VA Cardiologist in VA Central. It was responsible for the malpractice settlement, as it was based on all of the medical malpractice I had proven to them. I had not however filed for one of the malpracticed conditions, so I re opened with it.

I asked them to CUE themselves, when they deliberately ignored that VA opinion and they reversed the denial to an award in a few weeks.

They will even ignore their own doctors in order to deny.

Dr Bash, for anyone  new here, is a former VA doctor, and has done many radio shows with us for decades.

IMO/IMEs can be expensive but he is VERY thorough and will cite regs etc to bolster the claim. I wrote the IMO criteria here, maybe at the old board first, directly due to the way he prepared the IMOs he did for me.

Many years ago someone at a RO, mentioned  in a RO denial then BVA mentioned in their  decision, that they at the RO , referred to him as "that radiologist", and whoever at the RO who did that had no medical expertise at all.

Dr. B brought to the OGC some of the problems he had with the ROs, who might still be a little biased when they see an IMO/IME from him.

I have a copy of an exquisite letter he received from former Acting Secretary Mansfield, thanking him for the expertise and help he has given veterans ( and also to widows of vets  like me)

The VA can pick apart an IMO and find fault with it but they cannot completely  ignore a valid IMO from any doctor.

That would be a CUE under 38 CFR, 4.6.

BTW, I asked Secretary Mansfield himself to submit an enclosed coy of my IMos from Dr Bash to my RO, because I thought they might consider them if the VA sec submitted them for me.

Sec Mansfield did that right away...and my RO STILL Ignored them. But the BVA didn't.

The claims process is synonymous with tactical maneuver warfare. And it sucks.

 

[Buck52]

Ms berta

I think the VA has stopped the Reason & Bases of there decision like they use too in an award letter.

They call it ''What We Decided''

They do go on to say in there decision what they base there decision on as evidence used and medical records, symptoms ect,,ect,,, finding of facts basically.

key words  ''evidence used''

Now a denial maybe different,? I base this on what they put on my Award letter granting me 70% PTSD

 

.........Buck