How to deal with gross errors by VA?

[miked23]

In 2011 I filed an appeal with the VA.  In 2012 I filed a NOD and a form 9.  I called the VA several times and was assured my case "Was working its way through the process".  Then around 2015 I called and was told: "Your case has already been closed, but there is no reason why."  The VA then reopened my case.  Finally, it recently showed it was "Pending dispatch", but for the WRONG claims!  For example, I filed for Ehlers-Danlos syndrome but they then showed Lupus.  I filed for high blood pressure, and they showed Sciatica.  I called again and was told those were errors because my form 9 showed Ehlers-Danlos not Lupus etc.  How can I deal with this?  As far as I can tell, it is currently being decided, but for the wrong claims!  This is really frustrating, its hard to believe how incompetent they seem.  What should I do at this point?  The last thing I want to do is start the 7 1/2 year process all over.

[Berta]

Did youget an IMO or an IME_-I   always say IMO but I mean both-an IME is an inperson exam by a professional willing to opine on a VA claim.

This link should help :

https://community.hadit.com/topic/53826-read-first-if-getting-an-imo/

 

[miked23]

Berta,

Do you have an email or another secure place I can send the IMO so you can read it and discern where it might be deficient?

Thanks,

Mike

[Berta]

I dont handle this stuff in email.

Feel free to send my suggestions to your lawyer:

"REPRESENTATION
Veteran represented by: Valerie D. Metrakos, Attorney"

(From the remand.)
 

 

The remand says:

"The VA examiner did not address whether EDS is a developmental defect or
disease or discuss any relationship to service.( My note here......that exam was deficient)"

Meaning the IMO doctor did not state whether EDS is a developmental defect or disease and made NO nexus statement to your service. He needs to find anything in your SMRS that notes this condition or symptoms of it.Nexus means link to service.

 

• Report post
•  
•  

Posted 18 hours ago (edited)

" It isn't merely a matter of me disagreeing with their decisions, they have shown a surprising degree of incompetence."

I think 90% or more of us here would totally agree with you- it is Very frustrating- but we can get through it.

Please dont ever give up on these claims.

The remand is two fold:

"Regarding secondary service
connection, the Veteran asserts that clinical study evidence suggests that PTSD
causes hypertension. See October 2014 Substantive Appeal Form 9. Given his
current diagnosis of hypertension and the incident of a high blood pressure reading
in service as well as statements regarding clinical studies relating hypertension to
PTSD, a VA opinion is necessary under McLendon v. Nicholson, 20 Vet. App. 79
(2006) to determine whether the Veteran's current disorder is causally related to
active service or service-connected disability."

The examiner however may or may not SC  the hypertension as secondary.

 

You should raise any evidence or studies at the exam if the doctor lets you do that.

"Berta,

I did file a strong medical opinion, and it was totally ignored by the DRO, and only tangentially referenced in the remand.  The physician who wrote the medical opinion is both an attorney and doctor who specializes in VA cases.  it was really frustrating to have the DRO not even list the medical opinion as a document that was reviewed, even though earlier documentation from the VA described it as "well-reasoned". 

Yeah I had a double DRO review and the DRO would not enter my IMOs into records. The BVA gave them full weight.

The BVA can read.

The second part of the remand is thus:

The VA examiner did not address whether EDS is a developmental defect or
disease or discuss any relationship to service.( My note here......that exam was deficient)
In an October 2012 report, Dr. D.M. opined "[t]here is no question that the trauma
the veteran sustained to his right shoulder during military service has permanently
aggravated his [EDS] as it relates to the right shoulder." The October 2012
Independent Review by Dr. D.M. was undertaken for the purpose of determining
whether the Veteran had knee and shoulder disorders related to service. Thus, Dr.
D.M.'s report did not discuss whether EDS is a developmental defect or disease, or
offer rationale for the aforementioned opinion.( That is why the DRO rejected this)
As the Veteran has not been afforded a VA examination specifically for the EDS
disorder and there remain pertinent medical questions, the Board finds that a VA
examination is required. See McLendon, supra.
With respect to the claims for service connection for a neurological disorder and
osteoporosis, the Board finds that these claims are intertwined with the claim for
EDS. In this regard, the Veteran asserts that these disorders are secondary to EDS,
if not directly related to service. See October 2014 Substantive Appeal Form 9. See
-4-( The VA is quick to state that unless we are ourselves, medical prefssionals, they will not award due solely to a lay person's opinion. I did not have a IMO for my FTCA case nor any lawyer. I won because my evidence was medically impeccable and the Office of General Counsel and a VACO doctor could read. Still I spent many days weeks and months getting up to the medical knowledge I needed.I dont recommend anyone doing all that.

 

It seems to me that the IMO from Dr. D.M. did not conform to the IMO format we have here at hadit.

"Thus, Dr.
D.M.'s report did not discuss whether EDS is a developmental defect or disease, or
offer rationale for the aforementioned opinion."

 

The remand calls for 

"b) If the Veteran's hypertension is not directly
related to service, is it at least as likely as not (a 50
percent probability or higher) caused or aggravated by
the Veteran's service-connected PTSD? In reaching
any conclusion, consider the Veteran's reference to
clinical studies which relate hypertension to PTSD.
The examiner must provide complete rationale for the
conclusions reached.

Thje VA doc might be happy to see some studies you have on this----that might garner an award)
3. Afford the Veteran a VA examination to determine
whether his Ehlers-Danlos syndrome, type III (EDS)
is related to service. All necessary studies and/or tests
should be conducted. The content of the entire
electronic claims file, to include a complete copy of
the REMAND must be made available to the
individual designated to issue the opinion and the
examiner should discuss the Veteran's documented
medical history and assertions.
The examiner is asked to answer the following
questions:
(a) Does the Veteran's diagnosed EDS, constitute a
congenital defect or disease?
(b) If the Veteran's EDS is considered a congenital
defect, is it as likely as not that there was a
superimposed disease or injury in connection with the
congenital defect during the Veteran's active duty
service?
(c) If EDS is a disease, did it clearly and unmistakably
preexist the Veteran's active duty military service?
-6-
IN THE APPEAL OF MICHAEL
(d) If the answer to question (c) is "yes" is there also
clear and unmistakable evidence that EDS was NOT
permanently aggravated beyond its natural progress
during service?
(e) If the answer to either question (c) or (d) is "no,"
assume as true that the Veteran did not enter service
with the disability. With this assumption in mind,
is it at least as likely as not (i.e. a 50 percent or greater
probability) that EDS had its onset in service, or is
otherwise related to active service?
The examiner must provide complete rationale for the
conclusions reached."

 

These are the points an IMO/IME should cover as in the link above :

 

The Doctor must state that they reviwed your complete SMRS and all subsequent medical records.

They should refer to specific records by date, to support their opinion.

They should give a statement or Curriculum Vitae, as to their expertise and ability to opine on this type of claim.

They should ( since this is a claim for aggravation of a pre existing condition, give the VA enough information to warrant a rating.

 The Military might not have been aware ( nor you) of this condition when you enlisted but it is the symptoms and any treatments records in your SMRs that can prove you had it while in the Mil.

 

The "as least as Likely  as not"   statment is critical to the IMO/IME with a full medical rationale-

 

Every point in the "Getting an IMO link "above is critical.

 

If the IMo doctor is unwilling to prepare a bettr IMO ,you might want to consider finding a different IMO dotor with expertise in the field of  EDS. Or maybe your lawyer could do that.

 

 

 

 

 

 

 

 

 

 

 

 

 

Edited May 13, 2018 by Berta

[Berta]

There are 104 decisions on EDS at the BVA:

https://www.index.va.gov/search/va/bva_search.jsp?QT=+Ehlers-Danlos+syndrome&EW=&AT=&ET=&RPP=10&DB=2018&DB=2017&DB=2016&DB=2015&DB=2014&DB=2013&DB=2012&DB=2011&DB=2010&DB=2009&DB=2008&DB=2007&DB=2006&DB=2005&DB=2004&DB=2003&DB=2002&DB=2001&DB=2000&DB=1999&DB=1998&DB=1997&DB=1996&DB=1995&DB=1994&DB=1993&DB=1992

 

Some of them identify an opinion doctor by or by initial- there initials an be gogled in the state where the appeal came from-in a search of physicians.

This list above by city might help you find one who could do a better IMO( or IME which might be much better)

There is an online chat pop up from a doctor that  might help

https://www.medicinenet.com/ehlers-danlos_syndrome/city.htm

And plenty more info on the net that could lead to finding an expert in the field of EDS.