Vcaa Question Ref. Private Medical Records

[vaf]

I've got a question about the extent to which the VA is required to help the veteran obtain information from private sources.

The veteran has obtained an independent medical opinion from a physician to support a claim. The physician has treated the veteran for several years, and states so in the IMO. Then, the VA had a specific question on that IMO, but never notified the veteran or the physician, who in writing invited inquiries should anything else be needed. Then, the VA (in this case the Board) denied the claim, specifically referring to the IMO, but stating an apparently minor point of confusion (whether the muscle spasms referenced occurred in the cervical spine, the lumbar spine, or the extremities), which could have easily been cleared up if the veteran or the physician had been notified. In fact, the veteran first heard of it when he received the Board decision.

This all occurred after the implementation of VCAA in 2000. No VCAA notice, and apparently, this conflicts with 38 CFR, Part 3, § 3.159, as well as M21-1 in the discussion referencing developing evidence from non-Federally held agencies (i.e., private medical records). The veteran completed numerous release of information authorization forms, which the VA claims to have never received.

In contrast, the VA is citing 38 C.F.R. 4.2, which says that if VA has a medical examination it regards as inadequate for decisional purposes or in which the diagnosis doesn’t match the data, VA is to return the examination as inadequate, seek another exam or clarification of the initial exam from the VA provider, i.e. this has been interpreted to refer only to VA exams, where VA can compel a re-examination.

Am I wrong in believing that the VA violated the VCAA?

[LarryJ]

John, would that work for me? I mean, my C-file is with the Appeals Management Center, somewhere in Washington, D.C.

I can get to Waco, TX, which is where my VARO is located. I just don't want to do ANYTHING to put a kink in the works at this point.........whatever point that is?

[Stretch]

Vicki,

To me, the Veterans situation is good, because he can get a lawyer and can go to the CAVC. The regulation is contradictory in the same paragraph. It seems to me that there is a switch that turns on one part of the regulation or the other part. Either a switch, or the guy that wrote it was drunk.

VA has not ever gotten one piece of non-government evidence in my claims requested, regardless of the fact that I sent current year-date FOIA, request for the evidence, and explanation of the use of this evidence in my claims. I have had to get this evidence of my own accord. One of my three IMO's had the date missing, my corrected error (I forgot the cover page), and all three IMO's were rejected by the RO, for this reason. The RO did not even tell me why until my denial came in the mail in the SSOC before my BVA hearing.

Even the BVA judge/Lawyer Remand says that the evidence will have to be newly requested from the various health providers. Further, that the use of a current FOIA forms for this request must be used. The Current FOIA form (current year) is an excuse for delay or denial indifferent of actual evidence.

VCAA is violated, but when the decision comes, it will state some lame nit-picking reason for not being able to use the evidence. I think, this is why the Veteran needs a Lawyer.

[Josephine]

Vicki,

To me, the Veterans situation is good, because he can get a lawyer and can go to the CAVC. The regulation is contradictory in the same paragraph. It seems to me that there is a switch that turns on one part of the regulation or the other part. Either a switch, or the guy that wrote it was drunk.

VA has not ever gotten one piece of non-government evidence in my claims requested, regardless of the fact that I sent current year-date FOIA, request for the evidence, and explanation of the use of this evidence in my claims. I have had to get this evidence of my own accord. One of my three IMO's had the date missing, my corrected error (I forgot the cover page), and all three IMO's were rejected by the RO, for this reason. The RO did not even tell me why until my denial came in the mail in the SSOC before my BVA hearing.

Even the BVA judge/Lawyer Remand says that the evidence will have to be newly requested from the various health providers. Further, that the use of a current FOIA forms for this request must be used. The Current FOIA form (current year) is an excuse for delay or denial indifferent of actual evidence.

VCAA is violated, but when the decision comes, it will state some lame nit-picking reason for not being able to use the evidence. I think, this is why the Veteran needs a Lawyer.

Stretch,

I know what a cover page is for an essay in school, but what is the cover page for an IMO?

I am having an IMO done and do I need a cover page?

Thanks.

Josephine

[Vike17]

Vicki,

The VA has a "Duty to Assist" the veteran in obtaining the medical evidence to support the claimants claim, not a duty to assist in notifying the veteran of inconsistencies within the obtained documentaion. In the end that's what a rating decision and ultimately a SOC is for. In some instances the RVSR may elect to actually contact the doctor who's IMO in in question to clarify any discrepencies, but this is a judgmental call on their part.

If the veteran submitted VA Form 21-4142 to VA so they could carry out their DTA and the VA never received them, then the veteran can resubmit the forms and as long it's within one year of the DTA letter, the veteran retains his/her original effective date. Keep in mind that this would probably only be relevant in the decision if those medical records listed on VA Form 21-4142 actually clarified the discrepencies in the IMO. Does this make sense? Furthermore, §4.2 is referencing C&P exams, not private medical records that may be sufficient for rating purposes. If private medical records submitted by the claimant or obtained via the DTA for the claimant was sufficient for rating purposes but has conflicting information within them, a C&P exam probably would be orderd to clarify the differences. What does the C&P exam say in this claim? If the C&P exam was conflicting within itself, the rater will send the C&P exam stating it was insufficient for rating purposes.

Vike 17

Edited January 16, 2007 by Vike17

[Stretch]

If the Doctor was a Lawyer, he wouldn't have the need to be a Doctor.

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Josephine,

The cover page, for my IME and IMO, was electronic media. I did not send the front page (Date and Link). Almost everything I have done is electronic media. When I miss one little item, it usually turns out to be the biggest disadvantage. I don't find out until the SOC or SSOC. You don't need a cover page, although it could be good for reference.

[Berta]

Vicki- I agree with Vike that the records could be re-submitted and I would sure ask the IMO doctor for a distinct clarification of the part that the VA questioned.I believe they will continue to deny unless they have a medical statement that explains what they have questioned.

You are correct -the VA regs conflict with themselves-all we can do is make sure that our evidence complies with whatever the VCAA letter wants and that it is detailed as to the disability and the nexus-

"They have an IMO from this doctor, yet act like they didn't know where to get the medical records to back up that IMO."

I see this as the veteran's job- to get these records and submit them to the VA.

The lack of VARO respect for the VCAA is borne out by numerous remands at the BVA -however in spite of these VCAA violations, the BVA has often awarded claims at the BVA level-finding the VCAA violations were moot and did not affect the outcome.Often the veteran themselves had provided what the VCAA letter lacked.

The VCAA fulfillment -in my opinion- rests on the veteran - not the VA-

I never got an appropriate and legal VCAA letter and would have followed it step by step.

I found however that a widow with similiar case was remanded by the BVA and the BVA told the VARO the VCAA letter was inappropriate because the VA should have told the widow to get an IMO.

So I got three.

The VCAA- regarding private medical records-means that the VA is supposed to keep trying to get them- they must have an authorization form from the veteran-and make "reasonable" efforts to get them. What the VA defines as reasonable-I dont know---

The best thing a vet can do however- is to get all of their private and SSA and even VA med records themselves (in some cases to highlight what they need)and then submit copies of them to the VA.

Edited January 16, 2007 by Berta