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C&P Errors


RBrogen

Question

Hey Everyone,

I wanted to post here to get some advice.  I went to my latest C&P this past Friday May 17th, 2019 for an increase to my original condition of Lumbosacral strain as well as secondary NSAID induced GERD because of taking NSAIDS for years of treating the pain from my back and legs.  Here are the issues that I had and am wondering should I submit an additional document to my claim to let the RO know of my concerns before they make a decision or should I wait for decision and then go for higher-level, supplemental, appeal road.

  • Examiner did not use Goniometer to measure ROM on my back (indicated that I was up to 70 degrees and 20 degrees on everything else)
  • Examiner noted pain during ROM testing but did not indicate at what point in ROM that the pain started so that the accurate ROM could be determined
  • Examiner did not fully review my records as indicated by:
    • they did not note spinal stenosis as a diagnosis which is clearly indicated on my MRI results
    • they indicated that they did a straight leg test with negative results when in fact they never did that test.  I never layed down.
    • they indicated that I had not sought treatment for my back since 2017 which is completely false. I have documented treatment records at the VA beginning back in Nov 2018 through this month.
    • they referenced a 2 year old MRI result instead of my MRI from 2 weeks ago
    • they indicated that I was taking pain medication for non-service-connected conditions (neck/knees) which are actually service connected conditions in my file.
    • they didn't record my specific statements about flare-ups and the functional impact saying that I didn't report any at all.

Any thoughts would be greatly appreciated.

Thanks in advance.

Edited by RBrogen (see edit history)
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First I would call the local VA C&P office and inform them about the exam.  Keep it positive but let them know that the examiner missed important medical issues in your records including service connection and an MRI.  Also explain that the straight leg test was not performed.  They might give you another examination.  @paulstrgn has been successful in that endeavor recently.  Now is the time to get this done.  

Also I would submit the other information to the VA to get that condition looked at hopefully at the same time.  That might slow down your decision but it looks like you do not want them to make a rating decision on the most recent C&P anyway.

Good luck.

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I called the White House hotline at 855-948-2311 and complained. I also emailed the regional director about my issues with the C&P. She had someone call me and we spoke for over an hour, I have my new C&P on Friday.

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14 minutes ago, paulstrgn said:

I called the White House hotline at 855-948-2311 and complained. I also emailed the regional director about my issues with the C&P. She had someone call me and we spoke for over an hour, I have my new C&P on Friday.

Hey Paul ... thanks for the info and congrats on your new C&P.  I took VetRequests advice earlier and called the local C&P office where I had my C&P.  I explained the situation and the lady on the other end said that the regional office rep would be at their location tomorrow and Thursday and that I should come in and speak directly to them because it has a potential negative impact on my claim.  I'm going in on Thursday morning because I already have to be somewhere else on Tuesday.  So I guess by doing this I'm goin to the regional level similar to your approach as well. I'll keep you posted and I hope your new C&P goes well.

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@RBrogen that is great, yes you need to push the issue when they do wrong. Be prepared to tell them facts, also if you have any evidence that helps your case bring it too. 

 

Good luck on Thursday.

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3 minutes ago, paulstrgn said:

@RBrogen that is great, yes you need to push the issue when they do wrong. Be prepared to tell them facts, also if you have any evidence that helps your case bring it too. 

 

Good luck on Thursday.

Thanks Paul.  I have a boat load of facts that clearly show she didn't review my documents.  She claimed on several questions that my neck and knees were non-service-connected conditions when in fact, they are both direct service connected.  She also claimed she did a "Raised leg test" but didn't.  I never laid down on the exam table which would be required to properly administer a raised leg test.  I only sat on the edge of the table and she did reflex testing on my knees and achilles.  There were several instances where I specifically gave her information on my condition like with flare-ups and functional loss and she checked No Flare-ups reported.

Edited by RBrogen (see edit history)
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I think the best bet is to complain directly to the QTC, LHI, or VES, whoever did  the faulty C & P exam.

I called the WH Hot Line 2 week ago to complain on a posthumous C & P exam done by an actual VA employed doctor.

Some joker from the VHA called me up to discuss this.He didn't seem to have a clue on what to do.

He kept saying if I brought up the claim it involved, that VHA has nothing to do with the VBA.

I realized he did not understand that our benefits are determined by C & P exams, under the VBA, not the VHA.

I just told him I would take my concerns to Congress. 

There is a bill there about these lousy C & P exams but it is not a viable bill.

It is easier to write a legitimate bill and see if someone will introduce it- then deal with clowns.

This is what the Bill should be based on:

https://cck-law.com/news/va-contracted-cp-exams-not-meeting-quality-timeliness-standards-gao/

 

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On 5/20/2019 at 4:49 PM, Berta said:

I think the best bet is to complain directly to the QTC, LHI, or VES, whoever did  the faulty C & P exam.

I called the WH Hot Line 2 week ago to complain on a posthumous C & P exam done by an actual VA employed doctor.

Some joker from the VHA called me up to discuss this.He didn't seem to have a clue on what to do.

He kept saying if I brought up the claim it involved, that VHA has nothing to do with the VBA.

I realized he did not understand that our benefits are determined by C & P exams, under the VBA, not the VHA.

I just told him I would take my concerns to Congress. 

There is a bill there about these lousy C & P exams but it is not a viable bill.

It is easier to write a legitimate bill and see if someone will introduce it- then deal with clowns.

This is what the Bill should be based on:

https://cck-law.com/news/va-contracted-cp-exams-not-meeting-quality-timeliness-standards-gao/

 

 

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UPDATE:  I contacted the local C&P office where the exam was done (there's really only one doc doing the exams at that location).  The person scheduling the exams told me that I should come back in on a Tuesday or Thursday when there is an open Regional Office teleconference call so that I could explain my issue.  I went back in on Thursday May 23rd and after speaking with the RO, they had me fax my detailed documentation of issues so they could hand carry them to the person handling my claim.

Additionally, I happened to have the contact information for the Deputy Chief Medical Officer who I sent a note to about the situation.  He, in turn took all of my evidence and then passed it along to the Chief of C&P for that location.

My goal is to have the inaccurate C&P expunged from my record and a new C&P performed.  I'll keep you posted and thanks for the feedback.

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Until/unless congress changes something that actually works, it appears you have some options:  

1.  Do nothing.  

2.  Use this regulation to try to get records corrected:

https://www.law.cornell.edu/cfr/text/38/1.579   (Try this method first).  

3.  Get an IMO/IME refuting the exam.  

4.  Bring the errors to the docs attention and ask him to correct it under 38  cfr 1.579

5.  Try some other stuff which is less likely to work, such as calling the white house hotline, or complaining to IRIS.  

 

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UPDATE:  I was told on teleconference call today that the Regional Office is going to schedule me a new C&P exam!  I'll keep you updated.

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40 minutes ago, RBrogen said:

UPDATE:  I was told on teleconference call today that the Regional Office is going to schedule me a new C&P exam!  I'll keep you updated.

Im glad they responded.. usually they tell you to just wait and appeal

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Just now, Richard1954 said:

Im glad they responded.. usually they tell you to just wait and appeal

Definitely ... I think they did this because the errors were so demonstrably egregious that the just thing was to do a new exam.  Her boss is now involved as well.

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That is outstanding.  The VA is doing something right by the veteran here.

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If veterans directly complain to the contractor- QTC, LHI, VES- (I posted their contact info here available under a search)

they have a good chance of getting a better C & P exam.

Last year the GAO reported on the  problems with these deficient C & P exams.

One of the most important vet law groups we have  responded on line at how shocked they were-

that surprised me  that they were completely unaware of this fact, and I contacted them right away-

This will change if Congress gets involved. These contractor firms  have to keep an accounting of these complaints.

What bothers me the most is that these contractors are filling our VAMCs ,replacing VA doctors,and diagnosing and treating veterans.

If you are aware of the Brain  Tally malpractice case, you will see what I mean.

They can only be sued for negligence/ malpractice in a Federal District Court. The VA has taken away the FTCA and 1151 rights of veterans they might commit malpractice on.

Some of them are former VA employed doctors.

 

 

 

 

 

 

Edited by Berta (see edit history)
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UPDATE:  Apparently even though I proved beyond any reasonable doubt 3 days after the C&P that it was inadequate, sent information to RO who told me I would get a new C&P, they went ahead and processed my claim anyway with the bad C&P.  As expected, it was a disaster!  The GERED was denied as not service connected as was the shin splints which are BOTH documented clearly in my medical records and the C&P exam just before the last C&P.  They didn't approve the increase for lower back even though I proved the doctor didn't do the exams she claimed she did nor did she ever use a goniometer.  5 of the other conditions were "Deferred" and ultimately they awarded me 10% sciatica bilateral lower body which should have been even higher than that.

Now I have to go through the jacked up process of filing the notice of disagreement and going back at them.  It also appears on E-Benefits that as they changed the status today from Awaiting Decision Approval to, Preparing for Notification ... all of the conditions updated, showing their current status ... THEN about 20 minutes later, the status got reset to Review of Evidence.  I surmise that this is probably because the pushed the original claim through with the bad info to get it off their books faster and once it was deemed "Complete" it goes to their quota number and then they will go back and do the "Deferred" items.  Leaving me to have to fight them to get the original crap corrected!  UGH

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Sounds like a very frustrating experience.  My question is that if they had a C&P that documented the gered and the shin splints in a previous C&P why did they send you to another.  The VA is not supposed to be allowed to send you to a C&P to develop negative evidence to refute a previous C&P.  

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You got me vetquest ... the C&P included only 2 of the 7 conditions claimed (lumbosacral strain increase and GERD as secondary to lumbosacral strain).  I've taken the NSAIDs for decades and have diagnosis of NSAID induced GERD and this examiner was really not doing her job.  She actually said that I was taking NSAIDS for other major musculoskeletal issues like neck and knees that were not service connected so therefore she couldn't say 50% or more it was the cause.  NEWS FLASH:  BOTH my neck and knees are service connected and she didn't read my file.  Yes very frustrating but you have to dance the dance I guess.  I did go from 80% to 90% after today retro to 2/2019 and I have a long list of conditions they still have to decide on.

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Personally I would file this straight to the HLR with this explanation that you gave.  If it is denied at the higher level of denial I would then appeal to the BVA.  It is a lengthy process but at least they know how to read evidence.  If you could get an IMO at the BVA level they might grant outright without you having to go to a remand.

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3 minutes ago, vetquest said:

Personally I would file this straight to the HLR with this explanation that you gave.  If it is denied at the higher level of denial I would then appeal to the BVA.  It is a lengthy process but at least they know how to read evidence.  If you could get an IMO at the BVA level they might grant outright without you having to go to a remand.

I have done the HLR with a previous claim and it was really a farse .... won't go into details but the gist is the guy that was doing the HLR called but when I answered the phone, instead of having he informal conference call he came up with some lame ass excuse that he was calling to schedule it for another person.  Turns out it was him the whole time and he was just punching it through to meet quota and never talked to me before he closed it 28 days in.

I'll probably try that same process as it's a roll of the dice and I might get lucky.  The evidence that I have is absolute and overwhelmingly blatant which is why I thought that since I reported the issue 3 days after the C&P (C&P was on a Friday, report was in my Blue Dot med records the very next Monday). I then went into the local teleconference with the regional office and filled out a 21-4138 at the request of the VRO and faxed that along with all evidence so they could hand carry it to the review officer doing my claim.  I followed up 2 days later on another teleconference all and was told that I would get another C&P exam.  A few days went by and my claim status went into Preparation For Decision.  I then contacted the same VRO via faxed and expressed my grave concerns that my claim was being decided on blatantly incorrect information.  Did not hear back from them and then it was closed today with partial decision and then sent back to Review of Evidence status.  Frig'n frustrating.

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