Can I add Additional Denial Rebuttable While In NOD?

[SgtE5]

Filed for ankle and knee problems that both are documented in my SMR. I was denied with a reason stating that both were acute problems. I filed a NOD. I requested my c-file, received it on Monday. Had a c&p from a contracted VA doctor so was not in my medical file as it was a contractor. The c&p doctor that did the ankle and knee exam opined the claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. Her rationale: Veteran had no issues related to the claimed CONDITION prior to military service. Onset of the condition was during service, documented in the Service Medical Records. There is evidence of current, chronic and continuous treatment and care. A nexus has been established.

I don't understand why I was denied if the c&p doctor opined claimed conditions was related to service and I have met all 3 elements.

Even though her opinion is in the record, can I add a statment arguing the c&p doctor provided nexus? Or just wait for the SOC as I know it will be denied again and argure to the BVA?

SECTION III – MEDICAL OPINION FOR DIRECT SERVICE CONNECTION
Choose the statement that most closely approximates the etiology of this claimed condition.
X 3a. The claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury,
event, or illness.
3b. The claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event,
or illness.
3c. Provide rationale:
Veteran had no issues related to the claimed CONDITION prior to military service. Onset of the condition was during service, documented in the
Service Medical Records. There is evidence of current, chronic and continuous treatment and care. A nexus has been established.

Edited March 13, 2019 by SgtE5

[Berta]

I notice something here more often than I like-

My time is limited these days by an issue that can save the  lives of veterans.

It regards a bill introduced in the Senate.

I cannot benefit from it at all but it is one of many veteran issues I work on, off this web site.I have plenty of evidence to support the Bill with- need to send it all to the Senator who introduced the Bill.

So I guess I am getting pretty poed by replies that reveal the member does not have a clue.

I take the time to read and re read downloads from vets Very Carefully- the examiner even mentioned another issue the veteran has-that can be a valid claim.

People are commenting on downloads, C & Ps , decisions, AO regulatuions , etc etc  here -without even taking to time to read them.

I feel Iam wasting my own time by even doing research and adding links to so many of my replies.

Perhaps the opiners here should read the downloads again.

This was a contracted C & P exam, this was not a DBQ.

Sgt E5-------

This CUE is a Beauty- and if you file it through IRIS, as well as send it through the Intake Center it should go faster than you think-

It can be tweeked for the exact info as to what you claimed....especially what knee the C & P was done on.

 

I guess I am just tired of the repitition I have to do here sometimes, 

and I am fed up with cmments that show the member did not even read what the veteran scanned and posted here.

This CUE is a beauty.

-----------------------------------------------------------------------------

Maybe the VA will send some of you to a C & P exam and the exam is flawless and probative, and the examiner even mentions another disability you have, and supports the inservice nexus as well---for both issues, because they read your SMRs (STRS)

and then the VA will DENY your claim, because they violated 38 CFR 4.6 and never even read the C & P you went to, and that the VA paid for, which supported your claim.

That is the situation here in this thread.

This vet , Sgt E 5, should NOT have to obtain a costly IMO/IME because of the VA's prime facie CUE.

 

 

We need to be far more literate than the people in the VA.

Luckily I barely have time these days to even read more than three unanswered questions-a day- 

I would probably get really pissed at some of the replies.

 

 

 

 

 

 

Edited March 13, 2019 by Berta

[SgtE5]

1 hour ago, asknod said:

Your problem here is that the c&p examiner is not the VA claims examiner. Please note in 3a on both exams that the examiner said yes it more likely than less likely. With that said, a c&p examiner is not the last word. The rater has an in-house doctor/ARNP/ RN at the RO who reviews everything and makes that decision. They do not rely on what your c&p examiner says as to etiology.

Many Vets think a DBQ is the gold standard of a claim. In fact, I'm getting VA letters for some of my clients listing a download for the proper DBQ for the condition and a suggestion to take it to the Vet's private doctor, if any, to be filled out. A DBQ essentially lists where you are right now like a snapshot (photo). The c&p examiner is just a medical employee who records what you say and what s/he sees or discovers. In that sense, a DBQ is useless as an IMO.

When I obtain an IMO for my clients, it has far more info and discusses history as well as peer-reviewed articles about the problems my clients suffer. A DBQ is like an office visit. It doesn't go into history and the examiner is not allowed to diagnose service connection in spite of what you see in Box 3a. I refuse to use or depend on DBQs. Attached below is what I use. Dr. Rivero's Curriculum Vitae (CV) is four or five pages long, too and discusses her qualifications for opining on the client's condition. She views the exact same set of records (VBMS, STRs, current med recs and the c-file. This is where 99% of you lose. If your IMO doctor doesn't specifically state they reviewed those records I mention, you're going to lose.

Remember, VA invented DBQs. They could just as easily be called CYA forms.

And that's all I'm going to say about that.

 

 

Humphrey IMO redacted.pdf 400.17 kB · 2 downloads

Don't want to disagree with Asknod here as he is more of an expert on these situations than I, but the c&p that was done was a contractor that they sent me too. It was not a IMO.

[FormerMember]

I don't understand why I was denied if the c&p doctor opined claimed conditions was related to service and I have met all 3 elements.

Even though her opinion is in the record, can I add a statment arguing the c&p doctor provided nexus? Or just wait for the SOC as I know it will be denied again and argure to the BVA

Roger, sir. Your c&p was not an IMO ... or an IME... and certainly not a nexus letter. It was an exam (C&P) to see what's wrong with you. Just because the doctor/NP/RN/ ARNP/ PA/PA-C says it's service connected doesn't make it so. I showed you what you need-a real IMO from a doctor- not the opinion of a bedpan changer.

VA says you need three things to win. They supplied #3- your IMO-because you did not. Unfortunately, they are all usually a dry hole. In order to win your claim, you must get a truly independent IMO-not one from a subcontracted outfit like VES or QTC. They work for VA and will say whatever VA tells them to. Remember Judas and the thirty pieces of silver. 

Best of luck, sir.

Edited March 13, 2019 by asknod

[Buck52]

I always tell vets that need an IMO get one from a specialist in the condition that is in question. and let the specialist know how to use the words is like as not'' or what the VA likes things worded.

[Buck52]

In a case where there's 2 Dr with different opinions  then this is why its always best to use a specialist , if your claim goes into  equipoise  the specialist usually wins...over just a MD/PA  ect,,ect,,

[Berta]

So you guys are saying that any veteran who gets a favorable C & P exam and also establishes their nexus , HAS to Get an IMO? ????????

Hey- there are over 1 million  1/2 hits here every year ,and you want to newbies and guests to think that is true?

Where is the case law to support your advice-

if this is a new criteria in 38 USC/CFR/Mr1 -1MR       let's alert the media!!!!!!

and how about all those vets and widows like me who succeed at the Regional level- based on our medical evidence who never got an IMO? We have plenty of them here, whose award was based solely on a positive C & P exam.

 

Does that mean the VA will propose to reduce us ALL  who had positive C & P exams , because we didn't need an IMO- and because we had an established nexus as well as a bonafide positive C & P exam?

An IM0 ( it would have to be an IME in this case,) would only be needed if the C & P exam was lousy and/or did not confirm the nexus- because the lousy C & P examiner did not look over the SMRs. (STRS) 

But this is a valid CUE- it has nothing to do with an IMO/or IME- the medical evidence has been established.

Sgt E5 -your evidence is solid. They made a Legal Error.

If they do not rate you properly, maybe that would need an IME, down the road - maybe ---but at this point, they (VA) made a CUE in their denial and if that is not corrected, it will doom the claim.

I commend you Sgt- you knew this was a legally incorrect decision. We need you here as an advocate like me.

Unfortunately too many vets out there never even know when VA has committed a CUE to their detriment, a CUE like this one ,that can doom a claim forever.

I will look for the bilateral patella syndrome ratings tomorrow and post them here and then I will take a break from hadit and let the "experts" handle the CUE claims and the AO claims, and the survivor's claims,etc etc.

Maybe that is the hidden  agenda here anyhow-

But I will be here looking for the  established VA case law that supports the IMO comments.