opposing opinions

[SPO]

I'm not sure if my title makes sense, but here we go. In other threads I mentioned I was denied for lack of diagnosis for a secondary condition.  After speaking to the DAV I learned a little more about my claim decision.  I will try to make this as understandable as possible.  I submitted a DBQ from my doctor which provided a diagnosis and stated "more likely than not" connected to my primary condition.  The VA then requested a medical opinion of their own.  They received an opinion from a specialist in that medical field that says my condition that states "at least as likely as not" connected to my primary condition with medical rationale.  The VA then sent me to an in person exam.  I believe the only thing requested was range of motion testing.  The nurse practitioner, for whatever reason, provided her opinion saying that she couldn't diagnose me with the condition (i don't remember the exact wording).  The VA weighed the last exam opinion of everything else and denied the claim based on no clinical diagnosis.  If she was not instructed in the  C&P exam request to make a medical opinion on the diagnosis is it even a valid basis for denial?  Also, she is the least qualified of the 3 exams to make that diagnosis.  The DAV recommended doing a higher level review pointing out the first medical opinion they requested was favorable and the one that should have been used to make service connection .  Also the second C&P was intended for range of motion testing for rating percentage purposes only.  Thoughts?

Edited September 18, 2019 by SPO

[broncovet]

This sounds like classic "developing to deny".  VA is prohibited from doing so, but, as you saw they do it anyway.  

Chris Attig speaks of it, there is more, here:

In a nutshell, if VA already has the Caluza elements, them forcing you to go to more c and p exams in order to deny you is in error.  You may need an experienced attorney to fix this.  

[GBArmy]

Bronco's advise seems pretty much spot on. But for chuckles, I think I would try, at this point, HLR. You can always get additional supplemental evidence in you lose, but if you point out the facts, maybe, just maybe, the DRO will change the opinion. It is low risk, high reward at this point.IMO

[GeekySquid]

I agree with part of what Bronco says, the VA looks to be trying to develop to deny.

Before you file anything, take the Advice of Chris Attig on Veterans Law Blog, and write in your NOD, APPEAL or what ever a direct challenge to the qualifications of the person who gave you the negative opinion. Demand a full CV, History of Peer Reviewed Papers she has authored, Her list of special certifications that qualifier her to do your exam, Her years of Experience doing C&P exams, and all notes she took during the exam.

It is part of a legal strategy. The CAVC will NOT accept a claim against her qualifications if you do NOT raise it at the first opportunity. That would be your NOD, and then further in your Appeal. Keep it up with every round this goes through.

The good news if you do this, the VA raters/reviewers should immediately catch that this claim is not going away and that there is a claim for Developing to Deny on the horizon.

If you do this challenge right, when you have to get a lawyer they have more ammunition.

as background what your are actually challenging is the Presumption that the VA's chosen c&P examiners are competent in their field per 38 USC. I have to look up the actual law, better yet, you can as it is your claim.

The courts cannot ignore or white wash a direct attack on a Presumption set into Law.

If you are willing to experiment, the GB's suggestion would be interesting to see how well the HLR worked in your case.

5 hours ago, SPO said:

The nurse practitioner, for whatever reason, provided her opinion saying that she couldn't diagnose me with the condition (i don't remember the exact wording). 

this wording could be very important. If you will, get the DBQ and redact it. Then post. There may be other options buried in it that you don't recognize.

[SPO]

Definitely not what I was hoping to hear.  If the va did not request her to make an opinion can they still use one she provided?  By that I mean if they asked for only ROM exam do they have to ignore and extra information she provides. I am working off what the dav has told me from their access to the exams.  I still haven’t seen For myself.  Really hoping it doesn’t come down to a lawyer because I don’t have the means for that.

Edited September 19, 2019 by SPO

[GeekySquid]

5 minutes ago, SPO said:

 If the va did not request her to make an opinion can they still use one she provided?  

If the va did not request she make an opinion, why was she reviewing your file in the first place?

[SPO]

I don’t that she actually reviewed my file or just did the actual ROM test. The first va doctor did review my file and made an opinion in favor of service connection.  I believe I went to her because they didn’t have all the info they needed to assign a rating percentage based on loss of use/painful motion.  I think she may have just filled in all the blocks on the form even though the va didn’t ask her to.