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?

[Stretch]

Thanks Berta, Thanks Vicki.