Developing to Deny for sure

[Uno]

I have to say I don’t really have a question YET, but I wanted to share my story as It makes for an interesting read.  Feel free to comment…

 

In 1987 I was medically discharged from the Army for Subluxing Bicep tendon Bilateral.  I went to the VA and they agreed and issued 10% rating for each shoulder.  In 1993 I had a C&P Exam and I was all better so they say and reduced it to 0% in each shoulder.  Now keep in mind nothing was on the internet because it didn’t exist and I was young and uninformed so it never occurred to me to get my medical exams. I knew something was still wrong as I lived with shoulder problems since then.  Lets fast forward to 2013 when my shoulders were beginning to get worse with the right shoulder leading the way I decided to see a VSO and he opened a claim for my right shoulder.  I went to the c&P Exam and the PA found it was Subluxing bicep tendon, he also mentioned that he was looking at my records on his system and said my last exam was 1993, a few months later I received a decision that said they found right shoulder impingement syndrome and shoulder instability and rated each at 20% and left the original Subluxing Bicep Tendon at 0%. The VSO also filled out paperwork for me to get a copy of all my C&P Exams. As time passed I received some of the C&P Exams but not the one from 1993 so I requested it gain by the exact year and received a phone call from a lady saying she cannot find one from that year and she even looked in the boxes in the basement.  Going forward about a year or so later my left shoulder began to worsen so I went to a different VSO and they filled out a claim for the left shoulder. After the C&P Exam I went back to the VSO and they printed me off a copy of the exam and opinion and while I was there I mentioned that the VA has misplaced an exam I had from 1993 and after a few clicks on their system they said here it is and they printed off a copy and also mentioned that I shouldn’t tell anyone as they are not supposed to do that.  So after reviewing the new exam it said I had rotator cuff tears, shoulder instability, impingement syndrome and guarding all movement of both shoulders.  I also reviewed the exam from 1993 and it said they didn’t find subluxing bicep tendon but they did find significant rotator cuff grinding and impingement syndrome of both shoulders right worse the left.  I also read the  opinion from the recent left shoulder exam  and it said it was less likey connected because there is no known mechanism that would put what I have now with what I was discharged for. So like you have to do with all exams I began typing up by corrections to the exam and I also noted that the significant rotator cuff grating and impingement was first diagnosed in 1993 and it was the VA’s responsibility to request at that time whether it was service connected and since it wasn’t done then we have to say that there is a 50/50 chance that the Dr. would have said it was since we cant go back and ask him now and I sent it in.  So a few months later I get a decision that says its not service connected and didn’t say way and it didn’t recited any laws or anything like that so I file a NOD while getting the NOD ready I did a search on the internet about Subluxing bicep tendon and rotator cuff tears and found a lot of information connecting the two so I printed off one and also got a Doctor of Physical Therapy to review my records including the 1993 exam and she wrote a very detailed opinion on the connection between the two with a conclusion of its more likely than not directly connected and I sent it all in with the nod requesting a DRO .  Fast forward a year or so and I get a call from the VA to schedule another C&P Exam and I could see where this is going so I pick the same place knowing I would get the same examiner.  After the exam I download a copy of it and wouldn’t you know I no longer have torn rotator cuff and I am not guarding all movement along with many other things that have disappeared from the last exam and to top it all off they asked the NP who’s certification and specialty is family practice to opine on a statement from a Dr. who’s specialty is the musculoskeletal system which of course she keeps saying throughout her opinion that I was first diagnosed with impingement syndrome in 2015 when it is actually 1993 so now I have to again write and state that they need to change that date to the correct one which is 1993.  I can’t believe that people will go through so much effort to not acknowledge a date the changes everything.  Its tooo funny and sad at the same time.  What’s really funny is that somehow they found the connection in 2014 but can’t seem to find it now.

[broncovet]

Welcome to the department of Veterans Affairs, where you have to fight the VA for everything, and them fight them again to keep it, sometimes.  

Due to the length of time, an attorney's help may be indicated.  

[Berta]

  "So after reviewing the new exam it said I had rotator cuff tears, shoulder instability, impingement syndrome and guarding all movement of both shoulders.  I also reviewed the exam from 1993 and it said they didn’t find subluxing bicep tendon but they did find significant rotator cuff grinding and impingement syndrome of both shoulders right worse the left. "

'to top it all off they asked the NP who’s certification and specialty is family practice to opine on a statement from a Dr. who’s specialty is the musculoskeletal system which of course she keeps saying throughout her opinion that I was first diagnosed with impingement syndrome in 2015 when it is actually 1993 so now I have to again write and state that they need to change that date to the correct one which is 1993"

By the doctor who is a specialist who do you mean- thi doctor?

 "and since it wasn’t done then we have to say that there is a 50/50 chance that the Dr. would have said it was since we cant go back and ask him now and I sent it in. " 

Have you tried to find that same doctor on the internet?

Reason I ask- VA caused my  husband's death (FTCA/1151). 1994

Although I was awarded 1151 DIC -my daughter (a veteran) insisted I re open because, as she said,  Dad was exposed to AO in Vietnam, also DMII diabetes Type 2 was an AO presumptive, and she believed with some very good reasons why he probably was undiagnosed with DMII due to AO. She actually said "Mom it is 'as likely as not'- because after all they didnt even diagnose his heart disease and stroke properly. And you have it  well documented from OGC - that they caused his death."

VA had  attributed his death to malpracticed  heart disease, HBP, and stroke. She kept bugging me.She was still in the Mil then and I had started to obtain my degree from AMU-I didnt wat to even think about being a VA claimant again.But one day I pulled out his VA med recs , and began to look at them in a different way. Sure enough a DM diagnosis had been crossed out, and this VAMC was trying to cover up malpractice that had stated back in 1988 at the local VAMC.I found CONSIDERABLE more proof he had undiagnosed, untreated DMII-in medical records I had already reviewed dozens of times to succeed in the FTCA case.

I could hardly decifer the  DM  entry doctor's name. I  wrote to VA with what I thought his name was but they said no one with that name ever worked for VA. Finally I tried googling different other possible last names and Bingo , on the net I found a Neurologist which seemed to be him. His rundown indicated he was in private practice but had formerly worked for the VA. BINGO. again! By now MANY  months had passed when I was trying to find this doctor. I emailed him , to make sure it was the right neuro and briefly explained I had re-opened my claim for Direct SC due to DMII.

He remembered my husband well and said he needed to see copies of Rod's blood work , and maybe the MRI he had reviewed, when he was at VA,  as well as a copy of the page where the DMII dx was crossed out.

Meantime I had contacted Dr Bash for an IMO and Dr Bash was shocked at the email I sent him from this doctor, that fully supported my claim, after he read the records I sent to him.He called this neuro and asked that he put the email diagnosis to me on his letterhead. The Former VA Dr did that and sent it to Dr. Bash who incorporated it into his opinion and attached a copy of the letterhead opinion from him.

I told Dr Bash this was the only doctor whoever treated my husband at the VA to seemed to know what he was doing.

My long point here is that  13 years had passed from when the DMII entry had been made and to when I contacted Dr Bash for his IMO.

I found the doctor I needed to find.The BVA gave his brief opinionj full weight,, along with 2 IMOs I had from Dr Bash.

Nothing is impossible and maybe this doctor could be found and would be able to alter the C & P he did to establish the nexus that is missing.

Broncovet is right too----- sometimes we claimants NEED lawyers.

" I can’t believe that people will go through so much effort to not acknowledge a date the changes everything.  Its tooo funny and sad at the same time.  What’s really funny is that somehow they found the connection in 2014 but can’t seem to find it now."

I sure believe it- my claims have been full of atrocious errors and ridiculus C & P exams.

They screwed up my daughter's only VA claim.

They gave her one month of Chapter 35 DEA benefits.

She served for 7 years.Mommy fixed their asses.

The next award came fast. Seven years DEA entitlement. 3 weeks after the one month award.

We are dealing with people who cannot even read.

 

 

 

 

 

 

[Uno]

Yes finding the Dr. from the 93 exam would be hard as he was around 55 to 60 years of age which means he is most likely retired.  I did however do a search and found nothing in the area of Michigan or anywhere for that matter.  I do have a lawyer but like many lawyers im beginning to feel like they are dragging their feet hoping it goes down the long road as it means more money for them.  I did tell myself when it started that I wont be riding in the back seat this time around and will be working diligently to educate myself and file what is see as items that need to be filed.  

[broncovet]

I would humbly suggest its "probably" not the case that your lawyer is "delaying the case" so that the retro is larger.  

While I have heard that before, it simply hardly ever happens for several reasons:

1.  Your attorney would rather get paid "today" than "next year".  There is actually a formula which calculates the time value of money, where money today is always worth more than money tommorrow.  There is never any interest, so there isnt a financial reason to suggest the attorney would get more by waiting.  Of course, you could get more months of retro, but at 0 percent interest, the attorney is better off getting another client rather than delaying your claim to get more money. 

2.  Attorney's have to have the VA/or the courts approve their payment, and they watch stuff like that.  

3.  In addition to it not making any sense for the lawyer to delay, most lawyers rely upon their clients for referrals to build their business, and this would be counter productive.  

4.  Most attorney's who represent Vets (at least the Nova ones) do so because of ethics, not in spite of ethics.  If "money" is an attorney's only motivation, Veterans law is a very poor choice as this area of law is not lucrative.  I spoke with an attorney who "quit" doing Veterans law because he was as frustrated as we are with VA taking years to be paid.  

      When we are repeatedly frustrated by VA, we are looking for someone to blame.  While this is almost always the VA ineptness/corruption fault, it is also sometimes the Vets fault or his VSO.  For example the VSO does not always check to ensure there is a valid nexus, and its futile to contine a claim without solving the nexus problem.  While this can often be fixed with a IMO/IME, the unwary Vet may not be aware that he needs the IMO, as his nexus is insufficient or missing altogether. 

     If you have an experienced Vets law attorney, he or she is aware of the critical need for a valid nexus, and will "get after it", if necessary, so that both the Vet and the attorney can be paid.  

     While you did not indicate the level of appeals you are in, at the CAVC level, the EAJA almost always pays most or all of the VEts attorney fees.  The CAVC judge will be able to know if the attorney is dragging his feet to increase the retro.  

      When I hired an attorney last year, my attorney specifically suggested we delay this as long as possible, and for a very good reason, which is in my best interest.  

       You see, I have already been awarded the benefit, and we are seeking an earlier effective date.  So, waiting six months or a year wont increase his pay or my number of months.  

       However, the new program "RAMP" is a very big deal.  I read where 65% of the Vets on RAMP are awarded benefits.  That is more than double the "non ramp".  

       The VA is transitioning to all the VEts going on RAMP, but are doing a limited number each year in order to test and refine the program.  

       My attorney is not in a hurry as hundreds or thousands more Vets become eligible for ramp each month, and this increases my chances of a "win".  

       Basically, the way I understand RAMP is that the VA admits you have been delayed "too long" and they try to "settle" as fast and as many as possible.  

       All this RAMP stuff may not make sense, but it makes perfect sense to me.  I have been trying to get my benefits since 2002, and I can see that my odds greatly increase each month as more Vets are selected to participate in RAMP each month.  

       You can only do RAMP if INVITED TO DO SO BY VA.  Neither the VEt nor the attorney can elect "RAMP".  Ramp is an acronym for the new legislation where congress mandated VA reduce the appeal backlog, and VA is under tremendous pressure to do just that.  

      This credible, well known law firm explains RAMP:

https://cck-law.com/news/news-cck-live-revisiting-ramp/

https://cck-law.com/news/ramp-rapid-appeals-modernization-program/ 

     In a nutshell, if my claim is still in appeals in Feb. 2019, I will go into ramp, and may go before that. 

[Uno]

Thanks broncovet, what you are saying actually make sense.  We will have to wait and see how it plays out.  I still must play an active role as the back seat just isnt an option.  Im in the DRO stage right now, that is who requested another exam.

 

So i was looking over your links and they have some really good information.  The question I have is where it says if you pick a Higher-Level/DRO Review it says that you cant submit new evidence if that is the case then would that also mean that the DRO cannot request another C&P Exam.  That is exactly what happened in my case under the legacy system.

Edited March 20, 2018 by Uno
added info