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

[Buck52]

14 hours ago, Buck52 said:

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.

Ms Berta I apologize if my post was off topic here.

   Actually my post was just letting this all veterans know that getting a good IMO from a specialist  for his condition usually trumps a MD OR PA...rather or not his case is in equipoise I never mention it was...just letting him know that a IMO is a lot better coming from a specialist in detail form about his condition  vs VA DBQs or regular Dr's

I Totally agree with you on this case.

[FormerMember]

Boy howdy. I sure don't want to upset the apple cart. Please, all of you, read the LHI "Medical Opinions"  SgtE5 has attached. This is incredibly important before everyone discusses this any further. I did read the opinions written by the Dr/ ARNP  or whoever authored it. My comment is right below it (#10). One of each of the opinion .pdfs  Berta noted were my downloads.  Nowhere did I say anyone should run out and buy an IMO. I tried to give an example of how a good IMO should read and one that VA can never rebut- ever. That is equipoise and the secret to a quicker win. But it is not always needed as everyone has noted.

At the top right of the LHI correspondence I would ask everyone to look at what is written on the form.  I see "Medical Opinion-Disability Benefits Questionnaire." Some here insist this is an IMO. I'd say it's a nexus written on a DBQ form- and a poor one at that. As for independent, that is arguable.

Right under where you enter your name rank and SSN is a disclaimer. When I read a document, I read every inch of it because every phrase is operable or they would not put it on there. Please note VA is informing the examiner subcontracted by VA (i.e. not a VA employee which is very important) that "VA will consider the information you provide as part of their evaluation". Let's be clear ladies and gentleman Vets. Nowhere in that sentence did they say "VA will concur with the nexus you provide as part of their evaluation." 

My colleague Berta has read far more legal decisions that even I and knows a competent IMO/IME/Nexus must have certain ingredients. There are hundreds of precedental cases regarding what an IMO must have. Reonal v. Brown was one of the earliest but here is a newer batch... 

The credibility and weight to be attached to medical opinions is within the providence of the Board as adjudicators.  Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). But compare Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions).

I have fought Sgt.E5's type of denial before. Yes. Some idiot may have failed to read all the records. Or, they just deny a few times to see if you'll go away. VA denies 85% of the time as it is. 'Acute' versus 'chronic' is an antique denial ploy usually followed by 'resolved before discharge'. Since we've learned how to get an IMO, VA has been taking a lot of losses on this. They are evolving and devising new ways to deny, too.

 Let me offer this cut and paste from a RVSR who reads asknod.org. regarding my recent post on IMOs on my own blog. He's totally anonymous and worried VA will discover our relationship. I didn't even know you could get a throwaway email address until last winter.

 

Re: Your IMO system

Lastly, your IMO system makes complete sense.  As an agent, I would definitely need to find practitioners that do IMOs.  Making sure the doctors get the correct wording in there is SO important, because raters look for very specific things.  The doctor's relationship with the Veteran, the doctor's credentials/expertise, their rationale, and one of the most important, what records the doctor reviewed... you nailed it on the head.  Multiple times this last month, I've been forced to side with the VA doctors because the private doctor didn't explicitly state that they considered certain evidence... like the separation exam or continuous medical evidence showing chronicity or whatever.  So yeah, killer synopsis on that.

I do everything I can to offer advice based on techniques I've tried. Not all turn out well so I practiced on myself to learn most of them. VA constantly keeps changing the requirements too, the regulations and even the evidence we can use to sustain a claim/appeal. If I use a certain technique and I win sooner, I adopt it. My mission is to do as many of these as fast as I can and move on to the next win for another Vet. It's not like I'm a regular attorney who wants to camp out on Joe Vet's appeal for three + years for a big 20%. Ask Broncovet. I don't "need the money". If I could depend on a LHI/QTC/VES "medical opinion" to win with, I would. It would save me spending $1,500 of the Vet's money to get one (a quality IMO) I know I could win with. Speed and accuracy with a quick win is my game plan. Attorneys often litigate forever. What I hear in this thread is "Go with the VA's subcontractor's nexus and it will qualify...eventually." But it didn't- or hasn't yet. So now SgtE5 is going to spend  more time in an appeals posture trying to convince VA they should honor their own medical opinion.

But there you go. It isn't VA's opinion. It's the subcontractor's opinion which VA is free to pick apart, accept or discard. VA set up QTC/VES/LHI to be the straw man in this IMO gig. Remember-----VA did not say SgtE5's IMO was probative LHI did. VA ignored it as they may. Eventually, they will sort it out.

I will be happy to show you folks an identical IMO for cancer of the sinus due to AO written by a VES ARNP with a pseudo-supportive cite to accepted research on a virtually identical form with the same phrase I quoted above ("VA will consider the information you provide as part of their evaluation".) . VA denied him six days later with no mention of the VES gal's probative "IMO". The discussion was fixated on the fact that the sinus cavities are not part of the "respiratory system" and thus not presumptive. I have a few more DBQ "opinions" just like it, too. 

One of my VA agent friends I respect very much, Myra,  insists this is CUE. She disagrees with my take on how to do it. She is right- it is CUE but it is a long, tortuous road that many Vets don't relish taking-a protracted battle with the VA. I help Vets. Far more than I can ever help ask me to take their claims. I try to accomplish them as quickly and accurately as possible so I can move on to the next Vet and help them. Time is my enemy. Can you hold VA's feet to the fire on a LHI "nexus"? Perhaps. Perhaps not. I've known VLJs at the BVA to send out yet again and seek one last opinion. Few of us ever win that way. The operable word here is always "independent". I cut to the chase on a claim. My Vets are so ill, I get them a high rating-usually up in the SMCs. They make the cost of the IMO back in one check. I get 20% of one or two checks at most which is the way it really should be anyway.

When your appeal gets to the BVA and you are arguing about how the LHI opinion should be controlling, the judge is eventually going to roll out Nieves-Rodriguez and ask you where your probative nexus is complete with rationale and peer-reviewed cites that rebuts the VA examiner's probative nexus. Seasons change and so is VA. 

Please do not condemn me if my advice seems unorthodox. I agree that some seems off the wall. Everyone is different and no two VA claims will ever be a carbon copy. Any advice I give here is usually based on one tenth of what I would want to have before I ever signed a 22a with you. I don't trust the VA to do what they say they are supposed to do. Considering we teach you to have three prime ingredients here (Caluza), somehow SgtE5 got to the VA claims window without one of the ingredients. VA provided him one and then ignored it. Now what?

Should every Vet go out and get a $1,500 IMO? Certainly not. I never said that in my first post (#10) nor in my second (#15) . I merely pointed to the reason why he lost and how I would have avoided that problem. I also pointed out LHI and their ilk are not employees and purposefully gave you a flawed IMO.  There are not many litigators like me who do crazy things like running out at the drop of a hat and getting an IMO. I'm flying  back to DC to do a Travel Board hearing with a client from Texas to speed things up. The client doesn't want to wait for a TB date in Waco. 

I complain that others do not read a complete thread and enter in on page 6. By the same token, I would expect others to read what I write and not excerpt talking points. When all is said and done, I profusely hope SgtE5 gets this turned around without a costly IMO. It would seem the evidence is there but with the 'new and relevant' stricture in the Supplemental Claim Lane open to him, he cannot cite back to existing STR evidence as 'new' or relevant. This would be a HLR. It would have to be CUE'd promptly. I do not see it mentioned that this occurred after the AMA kicked in. If it's a Legacy appeal, he's in for a really long wait after his CUE NOD.   

SgtE5, I wish you the best on this. You should listen to everyone's advice but ultimately make your own decision. I personally would CUE it if it were my claim to save money. Some folks don't have money to throw at this. Much like a doctor, my first job is to do no harm. I do not see where I have done that. I'm sorry that other moderators here have a decidedly different opinion and I respect their advice. For everything else, there's MasterCard...  

 

 

Edited March 14, 2019 by asknod

[SgtE5]

asknod, I truely respect your opinion. I appreciate what you write and have the upmost respect for you. Thank you.

My appeal is from Sep. 2018 so I think it doesn't fall under the new appeals process that took effect last month. I haven't received any notice as of yet anyway that says it falls under the new process.

Edited March 15, 2019 by SgtE5

[Berta]

Alex -you are saying the law firm of Hill and Ponton, and other vet lawyers are wrong.

But you are wrong.

"Recently, the VA has really begun to heavily advocate the use of Disability Benefits Questionnaires (DBQs) by the C&P examiners. The VA has said that the DBQs were created to help streamline the VA claims process, and to help complete the record if they determine that the record as a whole is incomplete or insufficient to decide a claim. According to the VA, there are more than 70 DBQs, covering the overwhelming majority of conditions for which a veteran can receive disability compensation, including PTSD (Note: The DBQ for service connection for PTSD is not available to the public, but you can view the Review PTSD DBQ here in order to get a general idea of what a DBQ entails)."

https://www.hillandponton.com/part3-compensation-and-pension-exams-for-ptsd/

This veteran has a valid DBQ written from a contractor that complies with what VA wants.

When they receive the CUE I posted for him-which he can tweek if needed, they will make a decision, sooner than later , for all CUEs I filed in the appellate period.

My last Denial was awarded in 3 weeks under the CUE I wrote and mailed the next day after the ridiculous denial came.

the other most recent ones- once they got to the Nehmer VARO, were awarded in mere weeks as well.

After I try to find a little more info on Sgt E 5 's bilater patella syndrome- noted on the C & P exam by the LHI contractor, I wioll post it here.

Then I will take time off hadit to work on other issues-I have 4 CUEs pending , due to a OGC pres op and never got any support here on that issue. No one even read the OGC Pres Op to opine on it.

The other issues I have are S 221, the Bill going to the H VAC has two major  deficiencies in it that the Senators can correct-.before this becomes an amendent.

The other issues is the startling fact that the GAO has deemed MANY C & P exams as faulty- and even NVLSP was surprised at their report-

The many posthumous exams done on my husband are not only bizarre but medical unfounded. 

I had to call the WH Hot line because they (VA)are refusing to give me one of them-the most recent one- that was the CUE they awarded in 3 weeks because they had the only evidence I needed- an opinion from VA's top Cardiologist, yet denied on a medical review by someone with

in my opinion, no medical background at all.

Veterans are losing their rights under 1151 and FTCA----I already explained how here months ago-and losing their rights under 38 USC/CFR whenever they get a C & P exam that has been prepared with no consideration of their actual evidence, in VA's possession.

Someone has to do something about it and I intend to.

The  S221 has priority with me- then the C & P exam situation, geared to DENY claims, and these will be my sole focus after my last post in this topic. MY CUE issues and evidence from the VA itdself are perfect- but I have learned to expect BS from the VA, and that possibility will also take up my time.

My last post here  post here will be hopefully- some research can help with, as the Bilateral issue might well have caused the ankle issue in this veteran.(Sgt E 5)

 I do not have the time to be here and argue about established tenets of VA case law, and policy -that can change by the day, as the Hill and Ponton article shows, changes that ALL advocates must be fully aware of .

Please dont think I died- everyone- I am in exceptionally good health- I just wont be here until I complete those two important issues above.I have been fighting the NPDB issue for over 20 years-it is finally being addressed by the Senate, but the Bill is deficient because they don't know what I know about the deep state of the VA, and I have so much evidence on that, it will take me time to decide what to send to them.

Most of you are losing any future FTCA/1151 rights if the VA harms you or causes your death if your VA doctor is not a VA doctor at all, but employed through QTC, VES, or LHI.

And most of you will probably get denied right off the bat if you get a negative C & P exam, in spite of probative evidence you have, if they choose to ignore it.

You can CUE them right away or get a costly IMO/IME  to appeal the decision and get onto the VA  HAmster wheel-

but  the truth is no one here with a valid claim supported ny medical evidence, should ever even have to take either one those steps.

 

 

 

 

 

 

 

 

 

 

 

 

Edited March 15, 2019 by Berta
added more

[broncovet]

Yes, Berta and Alex, Im guilty of not reading their exams.  This is precisely why I suggested to the OP he read them,  when I posted:

Quote

You have your cfile, I do not.  I suggest you check to see if/when you reported these symptoms that you applied for prior to service, during service, and post service.  

  I currently have Cataracts and can not read well.  I cant read fine print AT ALL. I have found that attachments are particularly difficult for me to read, so this is why I suggested to the poster that he read his own file.  Its likely much more complete than any attachments here.    I apologize to all for "not reading" this Veteran's file, but I felt the Veteran could use some input so that is why I suggested the poster read it himself.  

My cataracts will get still worse before they get better, and cataracts are not my ONLY eye issues.  Trust me, its far worse for me, than it is for you.  

While Im very happy that Alex and Berta were able to read their file, and I acknowledge their answers are better than mine.  

Unfortunately, I see quite a few Vets with questions that go unanswered, or maybe I felt I had something valuable to the Vet to add.   I welcome Alex and Berta to answer questions where the Vet has posted an attachment, but I often can not read those attachements, and usually can not make the print larger, either.  Im not sure "why", when I type "Ctl +" it does not seem to make the attachment bigger.  

Its probably because I have a Linux Mint operating system for security purposes.  

[SgtE5]

I am still here thinking about filing the cue. A question for you all, what happens if the deny the cue? Does it go back to the normal appeal process?