Congressional Hearings

[surayabay]

What is required to get a Congressional Hearing and a Special Prosecutor to investigate the incompetence, hubris, waste of time, money, resources and accountability of the VA to veterans? 

[surayabay]

39 minutes ago, Berta said:

I asgree with all that and it makes me get angry , but then aytime VA has made me angry-I managed to caln down and take Action.

I have done all of the things I suggested that you could do.And am still doing those things-except for a letter I have ready for Wilkie as soon as he becomes the new VA Secretyary officially-

In the recent radio show with Dr Bash- he was correct about our fairly new VA IG-who is doing a far better job that the past IGs we had.

 

 

[surayabay]

Berta, buddy, it's way beyond 'gripping' to the powers that be!  They all know what's going on!  I hope the new guy can make some meaningful changes, but I do not hold much confidence, the deck is stacked against him!   I think 'my' only option now is hiring a private  attorney who specializes in VA law!  A sad way to have to go but not many choices left!    The guys who were in combat deserve a lot better that this!  AATW!  Thanks!     

Edited July 14, 2018 by surayabay
addition

[Berta]

In one of your posts you stated:

"I've asked for  an independent reviewer who is a qualified 'non-VA,' arbitrator, that I've read I'm entitled too, to review and  submit a finding for my case!  We'll see? "

We have all wished for that---- VA really has no "independent reviewers"-

Many of us have obtained independent medical reviews- they can be quite costly- but the money I spent on 2 IMOs for one of my claims was one of the best investments I could have ever  made.

 

 

 

 

[surayabay]

Berta,  I read it here.  I know it's a pain to get through but it's all in here!  Unless I'm not reading it right  or it's changed?   Take a look,  let me know what you think!    Basically I read this as saying, the veteran has the right to request an independent medical review of their claim by someone other than an employee of the VA, expert in VA law and further the VA 'SHALL'  give the 'veteran' / 'claimant' the benefit of the doubt in deciding disability claims and 'service connection'!  Let me know!  Thanks  again, good luck with your claim Brother!       

38 U.S. Code § 5109 - Independent medical opinions

• US Code
• Notes
• Authorities (CFR)

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(a)

When, in the judgment of the Secretary, expert medical opinion, in addition to that available within the Department, is warranted by the medical complexity or controversy involved in a case being considered by the Department, the Secretary may secure an advisory medical opinion from one or more independent medical experts who are not employees of the Department.

(b)

The Secretary shall make necessary arrangements with recognized medical schools, universities, or clinics to furnish such advisory medical opinions. Any such arrangement shall provide that the actual selection of the expert or experts to give the advisory opinion in an individual case shall be made by an appropriate official of such institution.

(c)

The Secretary shall furnish a claimant with notice that an advisory medical opinion has been requested under this section with respect to the claimant’s case and shall furnish the claimant with a copy of such opinion when it is received by the Secretary.

(d)

(1)

The Board of Veterans’ Appeals shall remand a claim to direct the agency of original jurisdiction to obtain an advisory medical opinion from an independent medical expert under this section if the Board finds that the Veterans Benefits Administration should have exercised its discretion to obtain such an opinion.

(2)

The Board’s remand instructions shall include the questions to be posed to the independent medical expert providing the advisory medical opinion.

(Added Pub. L. 100–687, div. A, title I, § 103(a)(1), Nov. 18, 1988, 102 Stat. 4107, § 3009; renumbered § 5109, Pub. L. 102–40, title IV, § 402(b)(1), May 7, 1991, 105 Stat. 238; amended Pub. L. 102–83, § 4(a)(3), (4), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405; Pub. L. 115–55, § 2(j), Aug. 23, 2017, 131 Stat. 1109.)

 

24688 Federal Register / Vol. 70, No. 89 / Tuesday, May 10, 2005 / Proposed Rules of this chapter for procedures governing the submission by a beneficiary or his or her fiduciary of oral or written information or statements. (2) The adverse action results from the beneficiary’s or fiduciary’s failure to return an eligibility verification report as required by § 3.277 of this chapter. (3) VA receives credible evidence indicating that a beneficiary has died. However, VA is not required to send a notice of discontinuance of benefits (contemporaneous or otherwise) if VA receives: (i) A death certificate; (ii) A terminal hospital report verifying the death of a beneficiary; (iii) A claim for VA burial benefits; (iv) An ‘‘Application for United States Flag for Burial Purposes’’; or (v) A ‘‘Record of Interment’’ from the National Cemetery Administration. (4) The adverse action results from a beneficiary’s written and signed statement renouncing VA benefits (see § 3.106 of this chapter on renouncement). (5) The adverse action results from a veteran’s written and signed statement that he or she has returned to active service. The statement must include each of the following: (i) The branch of service; (ii) The date of reentry into service; (iii) The veteran’s acknowledgement that receipt of active military service pay precludes receipt at the same time of VA disability compensation or pension. See § 3.654 of this chapter regarding active service pay. (6) The adverse action results from a garnishment order issued under 42 U.S.C. 659(a), allowing the U.S. to consent to garnishment or withholding of pay for members of the Armed Forces and, in certain circumstances, disability compensation, to enforce child support and alimony obligations. See 42 U.S.C. 659(h)(1)(A)(ii)(V) for the limited circumstance of garnishing certain disability pay. (Authority: 38 U.S.C. 501, 5104) § 5.84 Restoration of benefits following adverse action. (a) If VA reduces or discontinues benefits, or takes other action adverse to a beneficiary, based upon information or an oral statement provided by the beneficiary or fiduciary, VA will retroactively restore such benefits if the beneficiary or fiduciary asserts no more than 30 days after the date of the VA notice of adverse action either of the following: (1) The information or statement is inaccurate. (2) The information or statement was not provided by the beneficiary or his or her fiduciary. (b) Restoration of benefits under this section does not preclude VA from later taking action that adversely affects the beneficiary’s receipt of benefits based on the information or oral statements referred to in paragraph (a) of this section. (Authority: 38 U.S.C. 501, 5104) Duties of VA § 5.90 [Reserved] § 5.91 Medical evidence for disability claims. (a) Medical evidence rendering VA examination unnecessary. If they are adequate for purposes of adjudicating a claim, VA may rely on hospital or examination reports from a government or private facility, or reports from private physicians. When such reports are of record, VA does not need to provide a VA examination or period of hospital observation. (b) Rating injuries and conditions obviously incurred in service. VA may assign an evaluation for combat injuries or other conditions that obviously were incurred in service as soon as sufficient evidence to rate the severity of the condition is available, even if VA has not yet received the claimant’s enlistment examination and other service records. (Authority: 38 U.S.C. 1154, 5103A, 5125) § 5.92 Independent medical opinions. (a) General. When warranted by the medical complexity or controversy involved in a pending claim, an advisory medical opinion may be obtained from one or more medical experts who are not employees of VA. Opinions shall be obtained from recognized medical schools, universities, clinics or medical institutions with which arrangements for such opinions have been made, and an appropriate official of the institution shall select the individual expert(s) to render an opinion. (b) Requests. A request for an independent medical opinion in conjunction with a claim pending at the regional office level may be initiated by the office having jurisdiction over the claim, by the claimant, or by his or her representative. The request must be submitted in writing and must set forth in detail the reasons why the opinion is necessary. All such requests shall be submitted through the Veterans Service Center Manager of the office having jurisdiction over the claim, and those requests which in the judgment of the Veterans Service Center Manager merit consideration shall be referred to the Compensation and Pension Service for approval. (c) Approval. Approval shall be granted only upon a determination by the Compensation and Pension Service that the issue under consideration poses a medical problem of such obscurity or complexity, or has generated such controversy in the medical community at large, as to justify solicitation of an independent medical opinion. When approval has been granted, the Compensation and Pension Service shall obtain the opinion. A determination that an independent medical opinion is not warranted may be contested only as part of an appeal on the merits of the decision rendered on the primary issue by the agency of original jurisdiction. (d) Notification. The Compensation and Pension Service shall notify the claimant when the request for an independent medical opinion has been approved with regard to his or her claim and shall furnish the claimant with a copy of the opinion when it is received. If, in the judgment of the Secretary, disclosure of the independent medical opinion would be harmful to the physical or mental health of the claimant, disclosure shall be subject to the special procedures set forth in § 1.577 of this chapter. (Authority: 5 U.S.C. 552a(f)(3); 38 U.S.C. 5109, 5701(b)(1)) § 5.93 Service records which are lost, destroyed, or otherwise unavailable. (a) Records in the custody of the Department of Defense. When records that are potentially relevant to a claim for benefits and that were in the custody of the Department of Defense have been lost or destroyed, or otherwise have become unavailable, VA will not deny the claim without attempting to obtain potentially relevant alternative evidence. (Examples of sources of alternative evidence are listed in paragraph (c) of this section). (b) Destruction due to fire at the National Personnel Records Center. On July 12, 1973, there was a fire at the National Archives and Records Administration’s National Personnel Records Center (NPRC). When the NPRC reports that it does not have the claimant’s records because they were destroyed by this fire, VA will not deny the claim without attempting to obtain potentially relevant alternative evidence. (Examples of sources of alternative evidence are listed in paragraph (c) of this section). The following are the two main groups of records destroyed by the NPRC fire: (1) Army. Records for certain Army veterans who served between November VerDate jul2003 16:26 May 09, 2005 Jkt 205001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\FR\FM\10MYP2.SGM 10MYP2 Federal Register / Vol. 70, No. 89 / Tuesday, May 10, 2005 / Proposed Rules 24689 1, 1912, and January 1, 1960. Records of Army retirees who were alive on July 12, 1973, were not destroyed by the fire because they were stored at a different location. (2) Air Force. Records for certain Air Force veterans with surnames ‘‘Hubbard’’ through Z who were discharged between September 25, 1947 and January 1, 1964, and had no retired or Reserve status. (c) Alternative evidence development. Depending on the facts of the case, sources of potentially relevant alternative evidence for records described in paragraphs (a) or (b) of this section include the following: (1) A claimant’s personal copies of discharge papers, service medical records, or other evidence of military service; (2) State Adjutant Generals’ offices or State historical commissions; (3) The Office of Personnel Management (if the veteran was employed by a Federal or State agency), a private employer, or the Railroad Retirement Board (if the veteran was employed by a railroad); (4) The Social Security Administration; (5) VA or military files or records relating to an earlier claim filed with VA; (6) Service medical personnel or people who knew the veteran during his or her service; (7) State or local accident and police reports from the time and place the veteran served; (8) Employment physical examinations or insurance examinations; (9) Hospitals, clinics, or private physicians who treated a veteran, especially soon after separation, or pharmacies that filled prescriptions; (10) Letters written during service or photographs taken during service. (Authority: 38 U.S.C. 501)

[Berta]

Yes , that  certainly is a regulation.I have never seen it work at the RO level-

There are  a few cases at the BVA website that I am reading now-

whereby the BVA requested and independent medical opinion, because of the nature of the case-

the first one I read was denied again after BVA obtain the independent medical opinion.

(my opinion is that the VA paid for any IMO/IMEs they got, outside of the VA- somebody had to pay for them- so I dont really cosider them as "independent" opinions)

The next case whereby this type of opinion was requested by the veteran states:

"In regard to the request for an independent medical review of the evidentiary record by a specialist in the field of psychiatry, the Board initially notes that this case is not one of medical complexity or controversy as to warrant the opinion of an independent medical expert. Such opinion could not serve to verify an alleged stressor. In addition, the VA examiner was unable to make a psychiatric diagnosis because the veteran did not want to proceed with the examination and felt it would be of no net benefit to him; he refused to be examined by the VA specialist in any meaningful way and has not shown that the evaluation of his condition is beyond the competence of the VA specialist. Furthermore, as indicated above, the veteran has the burden of submitting both new and material evidence in order to reopen the claim. To obtain an independent expert medical opinion in this case without first submitting evidence which is both new and material to reopen the claim, would place this veteran in the same position as one filing an original claim and emasculate the principle of finality."

https://www.va.gov/vetapp95/files1/9503204.txt

The next one I found stated:

"Following the 2010 VA examination and addendum, the Board found that further medical opinion was necessary to clarify whether the Veteran had a current bronchial condition that was at least as likely as not related to the Veteran's active service. As such, in February 2011, an independent medical examination by a pulmonologist was requested to answer the question. The examiner was also asked to reference the in-service findings as well as the findings made by the Veteran's private physicians. A complete and detailed rationale for any opinion provided was requested. Unfortunately, the pulmonologist failed to fully answer the questions asked in the February 2011 request for independent medical review."

Then the BVA remanded it : (back to the RO for an additional VA opinion)

 

"The Veteran should be afforded a VA examination by a physician with sufficient expertise to determine the etiology of his pulmonary disorders. The claims file must be provided to and reviewed by the examiner. Based on the review of the Veteran's pertinent history and the examination results, the examiner should provide an opinion with respect to each pulmonary disorder present during the period of this claim as to whether it is at least as likely as not (a 50 percent or better probability) that the disorder is etiologically related to his active service. In providing the opinion, the examiner should address the Veteran's service treatment records, private treatment records from Dr. Gavin and Dr. Wilcox, the 2010 VA examination, the 2011 independent medical examination, the Veteran's smoking history, and the Veteran's contentions of exposure to mud, dust, forest fires, and dead bodies during active service."

https://www.va.gov/vetapp11/files3/1123173.txt

You might want to search the BVA web site to see if you can find similar cases-in which the claim was sent to an "independent" examiner.

The search terms I used were first 38 U.S. Code § 5109, then in the second search criteria box I used Independent Medical review. 103 decisions poped up but many regarded 5109 as a Diagnostic Code, I dont have time to read them all

When I changed the second search ,it was for Request for Independent Medical Review in the second search box and only the above case popped up.

 

 

 

 

 

 

Edited July 16, 2018 by Berta

[surayabay]

The deck is stacked against us, buddy!   At some point all you can do is hire a private attorney who specializes in VA law and let them fight the VA!   Especially for cases where you have 'no military medical records' to show 'service connection' because 1. it was frowned upon to report for sick-call as a paratrooper, even if you were injured, as the culture and practice of the time dictated, and 2.  The medical conditions did some have now did not surface until 30-40 years after active duty, not uncommon at all for paratrooper disability claims!   Even with my private Doctors IMO, which says my current conditions are  'more likely than not' to have been caused by my military activity as a paratrooper with over 25 jumps, over a two year + period while on active duty!  Resulting in spinal stenosis, degenerative disk decease, arthritis in shoulders, hips, knees, (need both knees and shoulders replaced now) ankles, feet and neuropathy in both feet and hands, (BTW, those are all the recommended contact points of a PLF , (Parachute Landing Fall!)  Hot, faster than usual landings, hard landings, uneven terrain, rocky surfaces, high winds etc., all contribute.   The VA never even mentioned my IMO, or any reason in my denial for why it was denied and ignored!   The VA's own pain studies and paratrooper injury studies, exceptions and criteria for special proof for paratrooper jump injuries they say the will accept and is spelled out for just such cases, but they don't not follow them!   And no uniform, consistent method for treating such issues in the same or similar class and cause  for such injuries!   So WTF can you do when they pull that crap?   I hate to air my issues here but I hope it highlights were not the only ones!  Too many of the guys have similar experiences with the VA!  I hope something changes before we die,  or they thank us for our service, AGAIN!  ATTW!  Good luck with your claim buddy! Yep, I about ('Hadit') with the VA too!