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

[RBrogen]

2 hours ago, Berta said:

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.

 

After I get the rest of my messes straightened out here, I want to look into filing a CUE for my original knees denial for them ignoring the rule of presumptive soundness.  The examiner claimed that my knee issues were pre-military without any history or medical evidence.

[Berta]

That sure sounds like a CUE beauty to me--- I recently helped someone here with a similar issue-

And there are BVA cases that show how that can work, such as:

"ORDER
Whether new and material evidence has been received sufficient to reopen a previously-denied claim to establish service connection for major depression with polysubstance abuse, to include as secondary to a service-connected disability, is granted.
Entitlement to service connection for a gastrointestinal disability, to include as secondary to a service-connected disability, is denied.
Entitlement to service connection for diabetes mellitus, type II, claimed as secondary to a service-connected disability, is denied.
Entitlement to an effective date earlier than March 13, 1998, for the grant of service connection for bilateral hallux valgus and pes planus, to include whether a July 1977 rating decision contains Clear and Unmistakable Error (CUE), is granted."

https://www.va.gov/vetapp18/files6/18111231.txt

( a nice retro !)

Vets can use the Presumption of Soundness regulations, the pre existing regulations, and my favorite regulation 38 CFR 4.6, to combat this type of VA BS.

There are quite a few decisions there at the BVA over those regulations, and the last CUE I won regarded all of them, but I just used 38 CFR. 4.6.

.

[RBrogen]

52 minutes ago, Berta said:

That sure sounds like a CUE beauty to me--- I recently helped someone here with a similar issue-

And there are BVA cases that show how that can work, such as:

"ORDER
Whether new and material evidence has been received sufficient to reopen a previously-denied claim to establish service connection for major depression with polysubstance abuse, to include as secondary to a service-connected disability, is granted.
Entitlement to service connection for a gastrointestinal disability, to include as secondary to a service-connected disability, is denied.
Entitlement to service connection for diabetes mellitus, type II, claimed as secondary to a service-connected disability, is denied.
Entitlement to an effective date earlier than March 13, 1998, for the grant of service connection for bilateral hallux valgus and pes planus, to include whether a July 1977 rating decision contains Clear and Unmistakable Error (CUE), is granted."

https://www.va.gov/vetapp18/files6/18111231.txt

( a nice retro !)

Vets can use the Presumption of Soundness regulations, the pre existing regulations, and my favorite regulation 38 CFR 4.6, to combat this type of VA BS.

There are quite a few decisions there at the BVA over those regulations, and the last CUE I won regarded all of them, but I just used 38 CFR. 4.6.

.

I have to get the C&P prior to the one I have screenshotted here.  I didn't not have Knees condition prior to entry and nothing is mentioned on entrance exam.  Any reference to a previous knee injury comes from a question that one of the doctors asked me "Did you ever have any sports injuries?" to which I replied honestly and said I had a left knee issue when I tried out for football.  The first day of practice, one of the players blocked me and my left knee hurt.  I did not ever go to the doctor with this and it was fine the next day but made me realize that football was NOT my cup of tea.  Also, both of my knees are now service connected.  The C&P that is referenced in the attached screenshot from 2009 states that I had been denied for the condition prior to this C&P.  I don't remember the date of the original denial so I don't know exactly how to get that particular C&P.  I think it is the only one I don't have a copy of.

[Berta]

The denial should be in your C file, and the exam might be there or in your Medical record file.

Sometimes if we ask for a copy of one or two things from our files (it helps to give the closest date you recall) a records request can go faster that asking for the whole 9 yards.

Happened to me recently- I asked for any additional  info on a C & P exam,done in 1993,  as the copies they had sent to me long ago, were only 2 pages and I knew there had to have been much  more.

I got 11 more pages- the request only took a few weeks to produce all that.

Something still seems to be missing and I found that the Neuro doctor is still with the VA and sent her a letter showing her what I received and what seems to be missing. 

I have an audit issue with the VA, and it seems that by being aggressive, something per my RO is being done about it.They sent me a letter yesterday on it.As I mentioned here before my past letters regarding audit errors were ignored by my VARO but VA counsel stepped in and they were fixed.I wrote to the IG on this one.I did not expect my RO would reply to me at all.But the director did.

 

[RBrogen]

UPDATE:  The incompetent examiner that created a mess for one of my C&P exams in April has now reversed her negative opinion on my GERD claim!  This was after a meeting with her boss and submitting VA Form 21-4138 with highlighted errors in my C&P, including the GERD diagnosis.  My entire claim that has 11 conditions on it now is "Pending Decision" and I'm optimistic that this will be a great outcome!

A quick shout out of thanks to all of the members here who provide their knowledge and guidance.  In the past 15 months, I've educated myself to the VA claims process in preparation to fight the fight on my own without a VSO.  I've gone from 20% that I had for over 20 years to 80% in March 2019, 90% in April 2019, and I hope I will hit 100% by the end of August 2019.  I couldn't have done it without the collective support and confidence gained by the knowledge I have learned from here and other key sources.  Keep Up The Fight!

[GBArmy]

We all have our fingers crossed for you. Best of luck, and we hope you will continue to add your comments to help others going forward.