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Mere Speculation Comp and Pen


Stlr4life

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Hello Fellow Veteran 20 year retired disabled Navy veteran, quick ?? I am going for unemployability through the VA just had my comp and Pen, I do check off all the DBQ according to the therapist , but at the end of it she said in her opinion it would be mere speculation on rather I should get unemployability or not. What’s that mean thanks 

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This article from the Veterans Law Blog might be helpful https://www.veteranslawblog.org/veterans-disability-benefits-service-connection-cannot-be-determined-without-resort-to-speculation/

Ever Seen This Phrase Before?

Have you seen this phrase in your Rating Decision from the VA (or even in the C&P Examiner’s notes of examination:  “It is not possible to resolve the issue of etiology [medical causation] of condition X without resort to speculation.”

If you have seen this phrase, then it is quite possible that the VA has failed in its duty to assist.

From the outset, let me say that I am sympathetic to the many VA Doctors who are trying, honestly, to do the job of being a doctor. Many times, the VA puts these treating physicians in the uncomfortable position of having to play detective, not doctor.   Many of these doctors, uncomfortable with making a determination about the precise etiology of a particular condition, will simply say that they cannot know without speculation.  The problem is that the VA claims examiners latched on to this language, and started cutting and pasting it into the Ratings Decisions.

The language, originally intended by the Doctor to state that he (or she) simply didn’t have enough medical evidence to determine etiology or service-connection became a tool for the VA Claims Examiner to avoid doing their job.

In a March 2010 decision, the Court of Appeals for Veterans’ Claims (CAVC)said “no mas” to this kind of Rating Decision.  The BVA came to several conclusions about the “mere speculation” language in a Ratings Decision or Examiner’s Opinion:

1) When a C&P examiner concludes that service-connection cannot be determined without resort to speculation, it must be clear, from either the examiner’s statements or the decision of the BVA, that the examiner has considered “all procurable and assembled data,” by obtaining all tests and records that might reasonably illuminate the medical analysis; when the record leaves the issue in doubt, it is the BVA‘s duty to remand for further development

2)  Before the BVA may rely aVA medical examiner’s conclusion that a service-connection opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the BVA‘s review of the evidence.

3) A medical examiner who states “no conclusion as to etiology or diagnosis can be reached without resorting to speculation” may be obligated to research medical literature; his/her conclusions as to service connection must reflect the limitations of knowledge in the medical community at large and not those of a particular examiner or doctor;

4) A VA medical examiner who states “no conclusion as to etiology or diagnosis can be reached without resorting to speculation” should clearly identify exactly what facts cannot be determined.  The CAVC stated that it must be clear in the doctor’s remarks “…whether it cannot be determined from current medical knowledge that a specific in-service injury or disease can possibly cause the claimed condition, or that the actual cause cannot be selected from multiple potential causes…”

The CAVC made it clear that every situation where this language appears in a C&P Examiner notes or a Ratings Decision is not going to result in a finding that the opinion is inadequate. But, when the author used this phrase to “lazy” himself or herself out of writing a well-reasoned decision based on all of the evidence that should be available, considering the knowledge of the medical community at large, and most importantly, articulating that it did so, it is quite likely that this phrase alone might suffice to get your VA claim for disability benefits remanding back to the BVA or the VA Regional Office to supply additional medical evidence or opinions.

The Attig Law Firm represents U.S. Veterans who have been denied  benefits in their VA Disability claims for compensation due to injuries or diseases incurred during military service. The Firm currently represents peace-time and war-time veterans of all branches of the military, at all levels of the VA disability claim process (VA Regional OfficeBoard of Veterans’ Appeals, and the Court of Appeals for Veterans’ Claims). Contact the Attig Law Firm if you would like to discuss your claim for disability benefits before the VA.

No post on this website is meant to be legal advice and the posts on this website do not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the Veteran, some power. This information is not widely or easily accessible to Veterans.  The information presented on this website is a general description of law and processes; each case is different, and there may be approaches listed here that are not accurate or applicable to your case. Likewise, their may be information that is applicable to your case that is not provided on this Veterans Disability Compensation Blog.

It is very important that we note that each and every Veteran’s claim is different. Just because we were able to secure substantial past-due benefits for one Veteran does not mean or imply that we will be able to do so for you.   In some cases, we may not be able to secure you any financial compensation due to the facts of your particular case.

It is best to consult with a lawyer familiar with VA Disability claims to examine your particular case.  If you would like to discuss your VA claim with a lawyer who handles VA Benefits and Disability Appealscontact the Attig Law Firm, PLLC, for a free consultation with a VA Disability attorney.

VA Disability attorneys at the Attig Law Firm, PLLC, represent Veterans in their  VA Disability Claims not only in Texas, Arkansas, Oklahoma, but in VA Disability Claims all around the United States, Puerto Rico, and even overseas Veterans in their claims for disability compensation from the Department of Veterans Affairs.

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Yep.  What Tbird said. (From Chris Attig).  

I will try to summarize.  

You wont be getting tdiu with that "lack of" a doctors opinion on your etiology.  You need a more specific opinion.  That is, a doc needs to say its at least as likely as not you are unable to work due to sc conditions.  

If you get that statement, from a doctor, then you are good to go.  However, if you dont have a definate opinion ("without resorting to speculation"), then you can spend consiberable time on the remand hamster wheel.  You choose which.  

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Well my ??? Why would the VA take a mere speculation opinion as a denial?? My opinion either the should get the veteran another comp and pen or approve it based of uncertainty... it’s not the veterans fault that the comp and pen doctor can’t come up with a decision?? Am I wrong ??Thanks 

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I agree with broncovet

as to why the VA won't take mere ''speculation'' is were not medical professionals  *(specialized Dr's)

  After a qualified Dr examines you and reads pertinent medical records   it is then he/she can give a professional medical opinion  and as broncovet mention above

''That is, a doc needs to say its at least as likely as not you are unable to work due to sc conditions. '' 

also you mention

it’s not the veterans fault that the comp and pen doctor can’t come up with a decision?? Am I wrong ??Thanks 

C&P Examiners are trained to give a C&P Exam and WRITE a report on their findings  from medical records and by asking the veteran questions.

  in this report he/she will write what he finds and then send this report to the VA (raters) VA Reginol Office,   its the rater who makes the decision based off the C&P MEDICAL REPORT.

C&P Examiners do not make the decision but play a very important roll  so-to -speak In the Rater decision

Then when the Veteran gets the decision  he as an option he can select if he disagrees with the decision? FILE A Notice of Disagrement within one year of the decision  or wait for the SOC and file I9 to the BVA (assuming a denial)

This is why C&P Exams are very important to veterans.

Edited by Buck52 (see edit history)
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I have never filed for TDUI and the DBQ for it, but wouldn't the C&P person need to render and opinion based on the facts they have received?  IE:  if you checked all the boxes for UI would the facts not require the C&P to go off of what they have in front of them?

I am a bit confused.  I am assuming you asked the C&P person if you would get UI?  If so they will never tell you yes or no.  This would be an admission you could come back and say but this C&P person said I would get it.  I know they have been very hesitant to say what their option is in front of the vet.  So if this is the case I would not read too much into until you see what the final result is.  

Remember they are told to not give out any information past what is already in your file and defiantly not to give the vet a "You sure do check all the boxes so I am sure you will get UI".

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Str4life:

    Yes, welcome to the department of Veterans Affairs forked tongue.  Sure its a pro claimant non adversarial system, which, of course, tells docs to not offer (the required) definate opinion so they can deny.  This is exactly what Berta has spoken of and is trying to change.  

    What it amounts to is the Veterans who can afford an IMO to refute their VA doctors (negative) opinion...get benefits.  The rest get denials.  The net effect:  You can "buy" VA benefits if you have the cash, up front, to buy them.  VA docs are mostly instructed by their bosses to give them evidence to deny.  

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Stlr4life-

with 20 years of military service I can imagine you want to seek the highest ratings you can get- because that could make you eligible for CRDP or CRSC payments , in addition to any SC compensation.

Are your disabilities listed on your Discharge Certificate?

I assume you have no VA SC ratings yet?

What evidence do you have to get TDIU?

Do you get SSDI solely for an established SC disability?

Has VA Voc Rehab turned you down yet because your SC (SCs) make Voc Rehab unfeasible?

A friend I got a MH 100% P & T award for years ago asked me to help a friend of his.

This was years ago, prior to the new 2010 PTSD regulations.

His friend had no VA rating at all. TDIU was his first claim. I sent him the form and some advice as to what evidence to send with it. He received SSDI solely for his PTSD and his stressor  nexus was sound.I think he had the CAR on his DD 214.

The friend also had significant psychiatric records and years of diagnosis and treatment from a private shrink for PTSD.

3 months later the friend who had the MH that I helped get 100% emailed me that the other vet had been awarded TDIU already- from "0" SC, NSC to TDIU in mere months-

But- not only has the PTSD regulations been changed, since then- the whole VA has changed.

We need more info.

 

 

 

 

 

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@shrekthetank1

if you can't work due to your S.C. Disability  you need to file for IU they will not  just give it to you, when you file for IU you need medical records from Qualified Dr's to state that your unable to work. 

o it helps to get in VA Voc Rehab and if the can't find you anything you can do   then normally the counselors will write you a letter stating its unfeasible at this time to retrain this veteran due to his S.C. Disability 

Forward the VA form 21-8940 and any supporting evidence to the Dept of Veterans Affairs.  Janesville claims evidence  intake  center in Janseville Wi (I don't have the PO BOX &Zip  but its here on Hadit)

as for as the C&P your correct  if they check all the right boxes (veterans do not check the boxes)   about your disability and is favorable to the veteran  then yes this helps  but some times they don't read all the box's  and this creates Havac For the Veteran and if denied  unfortunately  starts his long journey  up the Appeals Road. Appeals is how we fight  the VA  or via CUE

jmo

Edited by Buck52 (see edit history)
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Thanks Buck52 that clears that up!  Berta is where I was trying to pull from him was we need more information about what stage he is at. Or we are night fishing without a light. 

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