C&P Errors

[RBrogen]

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 May 20, 2019 by RBrogen

[vetquest]

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.

[RBrogen]

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.

[FormerMember]

23 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.

Why not skip the HLR and go straight to the NOD at the BVA? It's just as fast as the HLR and you get real lawyers looking at it-not illiterate GS=10 VSRs. Without new and material evidence to submit to change the decision (assuming no CUE)  in a HLR, you might as well go straight to DC. If you lose, the Judge will tell you why and you can turn around and go back to the supplemental lane and submit more evidence to win with. You still keep your effective filing date too.

[RBrogen]

1 minute ago, asknod said:

Why not skip the HLR and go straight to the NOD at the BVA? It's just as fast as the HLR and you get real lawyers looking at it-not illiterate GS=10 VSRs. Without new and material evidence to submit to change the decision (assuming no CUE)  in a HLR, you might as well go straight to DC. If you lose, the Judge will tell you why and you can turn around and go back to the supplemental lane and submit more evidence to win with. You still keep your effective filing date too.

I originally filed this claim myself (had done one before with no issues at all).  Since I have had so many issues, I reached out and just started working with a VSO ... supposedly best in the state ... I think that is what she mentioned before if this happened we'd do.  I am going to be speaking with her again tomorrow since the decision is done now.

[RBrogen]

On 6/11/2019 at 9:54 PM, RBrogen said:

I originally filed this claim myself (had done one before with no issues at all).  Since I have had so many issues, I reached out and just started working with a VSO ... supposedly best in the state ... I think that is what she mentioned before if this happened we'd do.  I am going to be speaking with her again tomorrow since the decision is done now.

UPDATE:  The VSO I was working with sat on my claim for another 6 weeks and didn't file anything so I took it back.  I went to the C&P Examiner's boss who is the Director of the C&P for the facility and he was "fully aware" of my situation and said that he used my case and evidence as a "Training Opportunity" for the examiner.  Ultimately after a few minutes talking with him, he sent an email to his VBA connection and said that the he completely agreed that I should get a new C&P exam.  After I also went to my RO and discussing it with them as well 2 times, I finally got someone on the phone at the VA to help me.  My claim is now back in Gathering Information stage and I have been told I am receiving a full new C&P exam at a different location that I chose.  I should be able to get it scheduled hopefully next week and correct this BS.

[Berta]

GOOD!!!!!!! Nothing like taking the Bull by the horns,that is interesting- what the Director told you-

 The last posthumous C & P result I got was as outrageous as the ones they did over 20 years ago.

In one part of the exam the examiner stated it was an inperson interview with the veteran who had been dead by then for almost 2 decades.

I was furious but then I noted an addendum that stated the veteran was not interviewed in person.

Then I learned that this examiner runs the Agent Orange Registry program in NY.She is  a bonafide internist, but I could find nothing beyond that, that showed she had any expertise at all, regarding 

anything.She was not a contractor, but was employed by the VA.

My medical evidence overcame the lousy C & P exam under a CUE.