Could my C&P examiner be disqualified?

[Justaskpat]

I had a C&P exam for anxiety at retirement in 2010. it was denied SC. I did not appeal because I was basically overwhelmed by the whole process. I recently found out the psychiatrist who did my C&P had been convicted of 2 federal crimes (medicare improper billing and mail fraud), punishment = suspended medical license 1993-96 and 3yrs 6months active supervised probation. CHAMPUS, Medicare and Medicaid revoked his providership status in 1994 due to these federal convictions. medical licenses for MA, NY,CA surrendered due to these federal convictions. At some point after his Virginia medical license was reinstated in 1996, QTC hired this doctor as a C&P examiner.

December 2018 I resubmitted for Anxiety with "new evidence" and was seen by VA C&P psych doc (LHI). This time they found the Anxiety was SC. The 2010 convict psychiatrist said, "single episode, severe", not SC. I'm going to do a CUE based on my medical record which shows treatment for anxiety for the last 12 years I was active. I'm wondering if I should also include the above information about the C&P doctor being a convicted felon. In my mind, C&P examiners are basically diagnosing medical problems, so how could he be allowed to diagnose a Federal employee for a C&P contractor when he is permanently prohibited from diagnosing or treating that Federal employee's family covered by CHAMPUS/TRICARE? I hope this makes sense.

19July2019 Addendum:  I just obtained the C&P notes from both the 2010 and 2019 Psych C&P's. I uploaded 2010.

There is an issue with the 2019: LHI did the exam, but the person signing as the psy doc who did my exam is not the doc who did the exam. Also, and this is the biggest problem, even though I told the doctor I contemplated suicide, the box next to "suicidal idealization" is not checked. I'm not sure how to get this rectified. I don't think I can contact LHI directly.

2010 VA Disability Rating Decision.pdf 2019 VA Disability Rating Decision.pdf

2010 Psych C&P.pdf

Edited July 24, 2019 by Justaskpat
Uploaded NOD/CUE COVER LTR, NOD 2019 ANXIETY, CUE 2011 ANXIETY

[ShrekTheTank]

I am hoping other join in here, but it sounds to me like you might need a lawyer to help you fight this the right way!  I do not have the expertise to help here as you have to fight this the right way and someone here might be able to coach you in how to do it.  

[broncovet]

I dont suggest filing a "cue" on this.  That is not the way to go about it.  There are much better options, like:

1.  If there are errors in your medical records, including this c and p exam, get them amended.  https://www.law.cornell.edu/cfr/text/38/1.579

2.  While its likely too late to challenge the competency of the examiner, you can try that also.   But it is presumed, absent your challenge. https://www.attigsteel.com/va-advocacy-skills/va-medical-examiners-competence-presumption-rizzo/

3.  Or, like most of the rest of us, you need an IMO.  Nobody wants to pay for one, but its probably going to take a favorable medical opinion to overcome an unfavorable one, unless number 1 or 2, above works for you.  

 

[Berta]

Can you scan and attach a copy of the older 2010 denial? As to  the RO's rationale? And the evidence list?

Also can you scan and attach their rational and evidence list from the more recent award letter?

You said:

 " 2010 convict psychiatrist said, "single episode, severe", not SC. I'm going to do a CUE based on my medical record which shows treatment for anxiety for the last 12 years I was active. "

There might be CUE or 38 CFR 4.6 potential.

 

[Buck52]

22 minutes ago, broncovet said:

I dont suggest filing a "cue" on this.  That is not the way to go about it.  There are much better options, like:

1.  If there are errors in your medical records, including this c and p exam, get them amended.  https://www.law.cornell.edu/cfr/text/38/1.579

2.  While its likely too late to challenge the competency of the examiner, you can try that also.   But it is presumed, absent your challenge. https://www.attigsteel.com/va-advocacy-skills/va-medical-examiners-competence-presumption-rizzo/

3.  Or, like most of the rest of us, you need an IMO.  Nobody wants to pay for one, but its probably going to take a favorable medical opinion to overcome an unfavorable one, unless number 1 or 2, above works for you.  

 

I am not sure he can get his record amended after they are entered in as a official record?    during the claims process or appeals process.

a 25 year experienced  DRO once mention to me that once an official record is entered in as an official record an amendment can not be , it will always be on record  but if the Veteran prevails in his claim rather or not an appeal  this particular  record can't be used against the veteran.

Edited July 8, 2019 by Buck52

[broncovet]

Well, Buck, that is not what the regulation says, if there are error(s) in your record.  There may or may not be a time limit to amend records, but no time limits are mentioned in 

38 CFR 3.1579, below,  contrary to the advice you were given.  

Quote

(a) Any individual may request amendment of any Department of Veterans Affairsrecord pertaining to him or her. Not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date or receipt of such request, the Department of Veterans Affairs will acknowledge in writing such receipt. The Department of Veterans Affairs will complete the review to amend or correct a record as soon as reasonably possible, normally within 30 days from the receipt of the request (excluding Saturdays, Sundays, and legal public holidays) unless unusual circumstances preclude completing action within that time. The Department of Veterans Affairs will promptly either:

(1) Correct any part thereof which the individual believes is not accurate, relevant, timely or complete; or

(2) Inform the individual of the Department of Veterans Affairs refusal to amend the record in accordance with his or her request, the reason for the refusal, the procedures by which the individual may request a review of that refusal by the Secretary or designee, and the name and address of such official.

Instead, the VA has to correct the record or at least tell you why not, which you may appeal.  And they have to correct it swiftly, too.  

[broncovet]

Also, if the Veteran DID get an IMO, they can submit that (favorable) IMO under 38 CFR 3.156, and, at least potentially, reopen the claim.  As to the effective date, that hinges on whether or not you were in the appeal period (probably not), and whether or not they were SERVICE records.  

If you were to reopen it, and VA awarded benefits but at the wrong effective date, you can appeal the effective date of the  decision WHILE also collecting the (new benefit) monthly amount.  

Or, yes, you can also file CUE, but a disagreement with the findings of the C and P examiner 10 years ago isnt CUE, "EVEN if" the examiner is incompetent.  As Chris Attig explained in the link, above, the examiner is "presumed competent" absent a challenge from the Vet or his representative.  

  (Tho there may well be other Cue errors in the decision).