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rpowell01

DRO hearing

Question

I have a hearing coming up on Thursday for Bowel Incontinence. Yesterday my POA stated that the DRO wanted me to have another C&P exam for the Bowel Incontinence. Here is the thing Dr. Bash diagnosed this back in 2012. Again in 2013 and I've had 2-3 C&P exams since 2012 for the same things.. The VA, a PA and GI Surgeon both diagnosed the same exact thing in July 2013, Bowel Incontinence secondary to my Lumbar DDD/DJD.

On the original decision the RO stated it was not diagnosed. This is wrong because they had in their hands Dr. Bash's IMO which showed the diagnosis then in 2013 whenever the VA Surgeon finally diagnosed it they still are denying me but the only reason they gave so far that it was not diagnosed. Everything Dr. Bash diagnosed has been diagnosed by the VA. As a matter of fact they approved me for IU based on the same Dr. Bash IMO!!!!! So how are they allowed to pick and choose what to believe on the report when the diagnosis has been proven by the VA? This is crazy.

I am going to refuse ANOTHER C&P exam on the grounds that they already did 2-3 exams, Dr. Bash did 2 exams and the VA (James A. Haley) did two of them (One from PA and One from the GI Surgeon). Am I correct to say they are just trying to low ball me severely knowing it would put me over the SMC and P&T threshold? I told my POA that I will in fact just send it to the BVA if the RO doesn't want to make a decision. They all know I have it so why are they low balling me? I am on SSDI all just for service connected issues, nothing else and I was just award my SSDI continuation. So what gives and how should I approach them at the hearing? I will try to keep my cool because the have sat on this too long.

Rob

Edited by rpowell01

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"Am I correct to say they are just trying to low ball me severely knowing it would put me over the SMC and P&T threshold?"

I would assume you are Correct. I had a hell of a fight over an obvious legal error regarding SMC.

They even tried to get me to accept a regulation they made up. It didn't work. But the battle took over 6 years because they are illiterate.

I had a P & T issue as well but had significant evidence for that award.Did Dr Bash state any rationale in the IMO that should have warranted P & T for the 100%?

 

"On the original decision the RO stated it was not diagnosed. This is wrong because they had in their hands Dr. Bash's IMO which showed the diagnosis then in 2013 whenever the VA Surgeon finally diagnosed it they still are denying me but the only reason they gave so far that it was not diagnosed."

Since they had the IMO in their possession,that definitely appears to be a CUE under 38 CFR 4.6.

Can you scan and attach here the reasons and Bases and Evidence list of the decision that prompted the denial?(Cover C file # prior to scanning)

 

 

 

 

 

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On 5/25/2016 at 8:33 AM, Berta said:

"Am I correct to say they are just trying to low ball me severely knowing it would put me over the SMC and P&T threshold?"

I would assume you are Correct. I had a hell of a fight over an obvious legal error regarding SMC.

They even tried to get me to accept a regulation they made up. It didn't work. But the battle took over 6 years because they are illiterate.

I had a P & T issue as well but had significant evidence for that award.Did Dr Bash state any rationale in the IMO that should have warranted P & T for the 100%?

 

"On the original decision the RO stated it was not diagnosed. This is wrong because they had in their hands Dr. Bash's IMO which showed the diagnosis then in 2013 whenever the VA Surgeon finally diagnosed it they still are denying me but the only reason they gave so far that it was not diagnosed."

Since they had the IMO in their possession,that definitely appears to be a CUE under 38 CFR 4.6.

Can you scan and attach here the reasons and Bases and Evidence list of the decision that prompted the denial?(Cover C file # prior to scanning)

" Did Dr Bash state any rationale in the IMO that should have warranted P & T for the 100%? " Yes he did. He explained that my condition would not get better but worse in many ways. He also explained and showed them proof of this with my 2nd EMG study I had which went from 1st EMG "Bilateral Radiculopathy" to 2nd EMG "Chronic Radiculopathy and now with Bilateral PolyNeuropathy".

Yes my POA finally asked his supervisor and they both agreed with me in stating that this is in fact a CUE. What he is going to do is ask the Rater to CUE himself and I told him to at least try to make a deal with him about the P&T. The Rater told him the other day that if I did not get a new exam he would deny me no matter what. BS because this should have been rated back in 2013 whenever they decided on it in saying that it was no diagnosed. That was their reasoning. This is BS because Dr. Bash diagnosed it in 2012 only to have the VA in latter 2013 finally come out and say the bowel issues are related to my lumbar spine injury. That was pretty much it on their reasoning, nothing else.

So this morning they did not have my hearing because the RO wants me to get a new C&P exam. Nope I refused and told my POA that this is a CUE and if the RATER doesn't want to admit its a CUE I will in fact appeal it straight to the BVA, no matter if I have to wait until 2018!!! I don't care I am not going to get low balled any longer, I've already let them low ball me on the ratings on my legs which I am still thinking about appealing.

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Gee, you could have whipped out that CUE at the hearing.

It is a violation of 38 CFR 4.6.

I do see your point however.

I feel ,if they admit to the CUE, that then it might be proper for you to have a C & P exam if they request one then, to insure a proper rating but

based on the info here , the rep is right and they should go Cue Themselves!

I used a 1997 medical opinion to succeed not only on my SMC CUE and improper CVA ratings but also used it last year for a 1151 HBP award.

The medical opinion came from the VA itself ( VACO) and I was afraid they might say it was no longer relevant because it was an old opinion and the veteran they 1151ed on (my husband) has been dead for over 20 years.

But I found the same top VA cardio doc still worked at VACO and I saved the contact info in case I needed it.

Instead they denied by ignoring that opinion completely with a bogus medical opinion and then reversed themselves immediately when I filed CUE under 38 CFR 4.6 on them via email to the Director of the Buffalo VARO.

CUE involves established medical evidence. Your IMO is established medical evidence.

I am sure from what I see here that they don't have any established medical evidence to show that your condition will somehow be cured or even improved to any degree.

.

Your rep and their supervisor are on the ball!

 

 

 

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Well I don't know what the REP is doing now but I have somebody helping me write up the CUE now. The DRO will not give in and will not rate it without a new C&P exam. Well hopefully Dr. Bash will do a new Nexus and a DBQ as part of my original payment to him for the same case. I feel the VA is Doctor Shopping and I find it appalling they are even allowed to do that.

 

Robert

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Berta please read and tell me what you think. John D is on this for me as I type this.

 

"With respect to the issues pending before the VA which are, service connected bowel, bladder and PT (Permanent and Total) status, please consider;
 
1st with respect to the issue of PT. I have provided for the VA, very probative evidence not only from Dr. Craig Bash, but also the SSA that clearly shows that I should be PT. VA has yet to consider this evidence and I wish to go on record, that if the VA would rate me PT, I would drop ALL pending issues for service connected disability. This seems the easiest way for everyone and will save myself and the VA time and effort.
 
2nd, if the VA denies PT or refuses to allow issue 1 noted above to take place, then consider the following;
I understand through my POA, that the DRO is mandating a C&P exam for the bowel/bladder. Apparently to reconcile Dr. Bash's IMO and other medical evidence in my favor, against a refuting record from 2012-2013. This constitutes a CUE in my opinion as the VA is obligated to not only apply the doctrine of reasonable doubt under CFR 3.102, but also apply VA's CFR mandate of relative equipoise in my favor. The evidence of record is clearly in my favor and Dr. Bash's opinion is at least as probative if not more than any other refuting opinion. I feel as if the VA is "doctor shopping" to secure a opinion against me, when the evidence is already clearly in my favor. 
 
In short, I will not be attending any additional CP exam for bowel/bladder and I encourage the VA to rate me PT of which I will drop all remaining claims. By doing this, we can save everyone the time and effort to further develop and adjudicate pending issues. This would also allow the VA to more timely assist other veterans by clearing my issues off of the board."
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