Vcaa Question Ref. Private Medical Records

vaf · January 15, 2007

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?

vaf · January 16, 2007

Vike, the C & P took place in 2003, and the rating was increased from 10% to 40% effective the date of the C & P. We've been trying to get an earlier effective date. It appears the VA is using the C & P to give the veteran what he wanted, but is avoiding awarding the increase with an earlier effective date.

We thought we did everything to enable the VA to obtain the records, in fact, we went one step beyond and supplied an IMO from the treating physician.

It's my understanding that new evidence in the form of these records they say they don't have can't be submitted because the case is pending before the Court. We're negotiating for a possible voluntary remand. We've got several items on the table, and this is an all or none proposition. We're not willing to let go of this claim, so we're arguing that the VA didn't fulfill its duty to assist. If we can get this settled, the whole list will go back to the Board.

This is from 38 CFR, Part 3, § 3.159 Department of Veterans Affairs assistance in developing claims.

(1) Obtaining records not in the custody of a Federal department or agency. VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from State or local governments, private medical care providers, current or former employers, and other non-Federal governmental sources. Such reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. A follow-up request is not required if a response to the initial request indicates that the records sought do not exist or that a follow-up request for the records would be futile. If VA receives information showing that subsequent requests to this or another custodian could result in obtaining the records sought, then reasonable efforts will include an initial request and, if the records are not received, at least one follow-up request to the new source or an additional request to the original source.

The way it looks to me is that they never sent the veteran the required bona fide VCAA notice (what was received was not VCAA-compliant), they aren't following their own policies and procedures in M21-1 for "developing" (not merely obtaining) a veteran's private medical records, and they didn't follow 38 CFR, Part 3, 3.159. The doctor's own letter invited them to contact him directly if they needed more information, plus they're conveniently disregarding the release forms we sent them.

How does this jive with 3.159, I guess I just don't understand it.

Edited January 16, 2007 by Vicki

Berta · January 16, 2007

Terry-you are absolutely correct-

(Pelegrino V Principi) as well as hundreds of BVA remands support what you just said-as well as the VBM.

The reality is- we cannot depend on the DTA regs at all-

we have to assist ourselves.

The RO violates the VCAA every day-every time they deny a claim without sending a proper VCAA notice first---telling the vet what they need.

Only claims that have absolutely no way to be substantiated are exempt from this- and I bet that is less than 1 % of all claims-

Berta · January 16, 2007

Vicki-did you follow the past guidelines on the preparation of the I-9 ( regarding this claim )that I posted here at hadit?

These were guidelines suggested by NVLSP and I told Ron ABrams I followed them to the letter-

also he agreed that although I supported my remand request from the BVA with VA case law on the VCAA violation, he thought that since I also had a third IMO that too was a good idea.

My remand took about a month-I kept thinking it took longer- it was a formal letter I sent directly to the BVA and gave them 3 reasons why they should remand my claim immediately.

And they did. There was a 90 day deadline for all this as I recall however that was clearly stated in the letter from the RO as to the transfer of the claim.

I also suggest dealing directly with them but sending copies of evidence sent to them- also to the RO and email their ombudsman or call them if you have any questions.

Edited January 16, 2007 by Berta

Vike17 · January 16, 2007

Vicki,

From what I understand from your last post is that this veteran's claim is pending at the Court now, correct? O.k. if this is the case, I'm not up to speed on their different rules such as being able to admit evidence and so forth as you stated. I am willing to bet, however, that the Board had already deemed that the "Duty to Assist" had been met. I think this is one of the first things they check when a claim comes before them, because if the DTA hadn't been met by the RO, then that would be an automatic remand! So, if this is the case, I don't know how far the vetran will get with the Court in arguing this point. I'm not saying this doesn't happen at the Court, but probably a long shot. I'm sure if one were to look, there have been plenty of cases that were before tho Court that got a remand back to the BVA and/or RO because they failed in the DTA. The veteran may have thought that the RO's DTA wasn't compliant with the VCAA, but the BVA may have decided otherwise.

Also, I'm kind of confused, as you stated in your first post that the veteran's claim was denied on the basis of the small inconsistancy with the private doctor's IMO, but then in your last post you stated that the veteran was increased from 10% to 40%. Do you mean that the other "several items on the table" were denied because of this IMO. I asumed not becuase I asked what the C&P exam stated in reference to the denied claim, and you posted that a shoulder claim was increased from 10% to 40% based on the C&P exam. So I'm not quite folowing you here??? At any rate, I'm not sure why the Court/BVA (not sure which one granted the increase) assigned an effective date of the C&P exam if this was on continious appeal since the original denial. Unless of course this C&P somehow constittued a re-opening of a prior denied claim and the appeal period ran out????

I'm not sure if the the other records, or should I say the records that were suppose to be obtained from the VA Form 4142 that VA never received, would have an overall affect on the decision. After all, there was an IMO that from the private physician that did make it into the record. The only way the additional records that weren't obtained would have an affect on the previous decision by VA, would be if they, as I stated before, clarified the discrepancies in the IMO. Furthermore, when VA uses the term "develope" it means they are to take the necessarry steps to obtain any evidence, such as private treatment records, SMR's and so forth.

It apears this all hinges on what the BVA/Court decides what to o with the issue of the VA Form 4142's that were lost!

Vike 17

vaf · January 17, 2007

I guess my questions can't easily be answered yes or no, but I wish I could cite a precedent on these two issues.

1) Does 38 CFR 4.2 nullify 3.159, and

2) Does a letter asking for medical provider names and addresses, which is information already sent to the VA many times, without being labeled "VCAA" and without being more specific as to the information needed from these providers, in fact, constitute legally acceptable formal VCAA notice.

I could provide a sequenced chain of events on this claim, but it would make the reader's eyes glaze over. It resembles the proberbial shell game. I don't want to give anyone vertigo trying to understand what happened.

I think it's interesting that the VA wants to negotiate a voluntary remand away from the Court, back to the Board. I feel like we're horse-trading.

Berta or anyone, have you ever had the VA offer to voluntary remand anything pending before the Court? Have you ever heard of such a thing?

Vike17 · January 17, 2007

Vicki,

"1) Does 38 CFR 4.2 nullify 3.159, and"

Like I said before in my first post, §4.2 and §3.159 really have nothing to do with each other. §4.2 pertains to C&P exams and how they are to be interperted by the decision maker. §3.159 has to do with how the VA is to go about executing the "Duty to Assist" and obtaining medical records/evidence both within the federal goverment and from private, outside sources.

"2) Does a letter asking for medical provider names and addresses, which is information already sent to the VA many times, without being labeled "VCAA" and without being more specific as to the information needed from these providers, in fact, constitute legally acceptable formal VCAA notice"

Also like I said before, it boils down to what the BVA/Court decides as far as if the VA made "reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim." I'm not sure if VA simply not stating this was a request of some sort under VCAA to help a claimant obtain evidence to substantiate their claim would hold water. Maybe if the request wasn't specific the the claimants claim, then that might have some weight, but, otherwise, I wouldn't count on it. My guess is if VA made reasonable attempts to secure evidence specific the that claimants claim, then the VCAA had beed fulfilled.

Vike 17