Is this a Clear and Unmistakable Error (CUE) ?

[dwbell99]

FACT 1: Veteran's left ankle is 10% service connected.

FACT 2: Submitted claim: It is this provider's medical opinion (My Doc / IMO) that Veteran's chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely than not  50% secondary connected (due to abnormal gait caused by service connected left ankle disability).

FACT 3: The DECISION of the Rating Decision: Service connection for degenerative disc disease, lumbar spine (claimed as back) is denied. REASON: We have denied your claim for service connection for degenerative disc disease, lumbar spine (claimed as back) since this condition neither occurred in not was caused by service.

FACT 4: Favorable Findings of the Rating Decision:
- Private examination for Dr. IMO (Board-certified Anesthesiology and Pain Management) opined that chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely than not less secondary connected (due to abnormal gait caused by service connected left ankle disability).

*************
Claim History
*************
1. Submitted claim 7/19/2016: Service Connected back.

2. Rating Decision 11/29/2016: Service Connected back denied.

3. Submitted corrected claim 11/18/2017: Back is more likely than not 50% secondary connected (due to abnormal gait caused by service connected left ankle disability).

4. VA received claim 11/18/2017: Existing appeal for back so (reopen) appeal.

5. Rating Decision 11/21/2018: Service connection for back is denied. NOTE: Was the same decision as previous Rating Decision 11/29/2016 and did not address the corrected claim that back was secondary service connected to service connected ankle.

Edited October 21, 2019 by dwbell99

[Berta]

Can you scan and attach here ,the denial, to include the evidence list?

(Cover your C file # , name, address ,prior to scanning it.)

It seem they did consider the IMO you had sent to them , so no 38 CFR 4.6 CUE there- but 

we need to see how they considered this IMO in the decision itself.

Did the IMO doctor fully adhere to the key points in the IMO/IME criteria here at  hadit?

"FACT 4: Favorable Findings of the Rating Decision:
- Private examination for Dr. IMO (Board-certified Anesthesiology and Pain Management) opined that chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely than not less secondary connected (due to abnormal gait caused by service connected left ankle disability)."

Is this from the recent denial? or the prior denial?

I hope you do not need to do what I did many years ago-I got 2 costly IMOs but only needed one and they ignored both of them, telling my lousy VSO ,at a double DRO review that the DRO could not read them.

The DRO handed them back to him and they never got into the record.I don't think he had ever seen an IMO before- his vet org (state of NY) never told vets to get them.

I got the  double DRO review with a CUE but was so disgusted ( I was in AMU at the time-lots of homework) that I patiently waited for the BVA to award and they did...taking note that my VCAA rights had been violated, as I had also charged in th appeal, but that none of my probative IMOs were considered at all, at the RO level.The BVA declared the VCAA violation moot ,after a brief remand, because I had sent them enough probative evidence to award.

I hope you can scan and attach  redacted decision and evidence list-because that is where the CUE will be if there is one.

You reminded me to check something in the IMO/IME criteria here.

I sent my IMO doctor ,at that time, copies of two ridiculous C & P exams the VA did posthumously, after my husband denied.

IMO/IME docs need to have copies of any C & P exams that denied the claim.

They hold exactly what the claim needs to overcome, medically.

Also- have you googled the C & P doctor yet? They might have NO expertise at all to have even done the exam.

The claim I got IMOs for was for Diabetes Mellitus- never diagnosed or treated by the VA where my husband had been a patient for many years.I already got DIC under 1151 (malpractice) but shaped this claim ( another malpracticed issue) for direct SC death.

Nothing is impossible and it was the most important issue I ever had with VA.

The VA C & Ps were done by an Endocrinologist, but I had studied enough Endocrinology to knock down her results myself, but this was the first time I ever had obtained an IMO and it was well worth the cost and time it saved me.I wanted to graduate with Honors, the first civilian to graduate from this  Military University, and I did.

I could not allow the consistent incompetence from my RO (like the consistent  VA malpractice that killed my husband) interfere with my  study program. Marines are Very tough teachers.This is a war college.My college work had to be Perfect..

(actually I ended up with 3 IMOs - the last one was  a freebee from a former VA doctor) and II also had ordered and paid for a 4th CArdio IMO. The BVA had remanded  at first for a Cardio C & P and I got a PA C & P, nocke it down myself medically, sent my lay medical opinion to the BVA, they agreed with me that it was "too speculative" and they S--t canned that opinion.

The forensic firm that had the cardio doc refunded half of my fee ,when I called to tell them I had won the claim.because he had not prepared that opinion yet and the BVA award came very fast after they got my rebuttal to the PA's opinion. I knew more about cardiology than he did.

The CUE, if there is one, is within the decision.

 

 

 

 

 

 

Edited October 21, 2019 by Berta

[Berta]

I am glad I re read . You said:

"Also, the VA examiner's medical clinical specialty is Pediatric Emergency Medicine. "

That does not show me they have the expertise o opine on your issue at all.

But you also said:

  "Dr. IMO (Board-certified Anesthesiology and Pain Management) " and that means they might not be qualified to opine either-

"Additionally have asked my back surgeon for an IMO for back damage and employability statement."

Great !!! This doctor would have the most expertise.They should prepare the IMO following the IMO criteria here and add a Curriculum Vitae of their expertise.

"Planning to go the Supplemental Claim route so I can add new and relevant." Good too!

I had Dr Bash, a Neuro-radiologist , opine on my past diabetes mellitus death claim.

He made the point in his 2 IMos ,that , as a neuro-radiologist , (who also had worked for the VA)

he had read the X rays and MRIs, of "thousands" of diabetic patients , so I knew he had the expertise I needed, a

It fully outweighed the C & P examiner's expertise as a Endocrinologist.

 

[Buck52]

I think the rater must had to many to drink before coming to work?

Here is a copy of a post I was reading the other day.

I believe member   vetquest is helping this vet.

Here is what he posted and the reason for the decisions

Seaman

 1

25 posts

Branch of Service: USA

State: TX

Report post

 

(IP: 173.175.19.150)

 

Posted October 3 (edited)

In the situation below, does the Favorable findings below support what is claimed?

CLAIMED: chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely due to abnormal gait caused by service connected left ankle disability.   

DECISION: Service connection for degenerative disc disease, lumbar spine (claimed as back) is denied. 

REASONS FOR DECISION:
We have denied your claim for service connection for degenerative disc disease, lumbar spine (claimed as back) since this condition neither occurred in not was caused by service.

Favorable finding identified in this decision:
- Private examination for Dr. IMO opined that chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely than not less secondary connected (due to abnormal gait caused by service connected left ankle disability).

Claim History
*************

1.  Submitted claim DBQs 7/19/2016 for (a) left ankle as service connected, (b) bilateral knees as service connected and (c) back as service connected

2. Rating Decision 11/29/2016: (a) left ankle SC approved for 10%, (b) bilateral knees denied and (c) back denied.

3. Submitted Corrected DBQ's 11/18/2017 for (a)knees, (b)back, and (C)sciatica are secondary service connected (due to abnormal gait caused by service connected left ankle disability).

4. Letter 12/14/2017 acknowledged reciept of my 10/30/2017 FDC.

5. VA received the 11/18/2017 (a)claimed that there was an existing appeal for Knees so (reopened) appeal, (b)claimed that there was an existing appeal for back so (reopened) appeal and (c)claim for sciatica is denied.

6. Rating Decision 11/21/2018: Service connection for degenerative disc disease, lumbar spine (claimed as back) is denied.

7. Rating Decision 2/26/2019: (1) The previous denial of service connection for left knee degenerative osteoarthritis is confirmed and continued and (2) The previous denial of service connection for right knee degenerative osteoarthritis is confirmed and continued.

Edited Saturday at 10:21 PM by dwbell99
updated claim history

 

 

Edited October 22, 2019 by Buck52

[dwbell99]

11 hours ago, Berta said:

Can you scan and attach here ,the denial, to include the evidence list?

(Cover your C file # , name, address ,prior to scanning it.)

It seem they did consider the IMO you had sent to them , so no 38 CFR 4.6 CUE there- but 

we need to see how they considered this IMO in the decision itself.

Did the IMO doctor fully adhere to the key points in the IMO/IME criteria here at  hadit?

"FACT 4: Favorable Findings of the Rating Decision:
- Private examination for Dr. IMO (Board-certified Anesthesiology and Pain Management) opined that chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely than not less secondary connected (due to abnormal gait caused by service connected left ankle disability)."

Is this from the recent denial? or the prior denial?

I hope you do not need to do what I did many years ago-I got 2 costly IMOs but only needed one and they ignored both of them, telling my lousy VSO ,at a double DRO review that the DRO could not read them.

The DRO handed them back to him and they never got into the record.I don't think he had ever seen an IMO before- his vet org (state of NY) never told vets to get them.

I got the  double DRO review with a CUE but was so disgusted ( I was in AMU at the time-lots of homework) that I patiently waited for the BVA to award and they did...taking note that my VCAA rights had been violated, as I had also charged in th appeal, but that none of my probative IMOs were considered at all, at the RO level.The BVA declared the VCAA violation moot ,after a brief remand, because I had sent them enough probative evidence to award.

I hope you can scan and attach  redacted decision and evidence list-because that is where the CUE will be if there is one.

You reminded me to check something in the IMO/IME criteria here.

I sent my IMO doctor ,at that time, copies of two ridiculous C & P exams the VA did posthumously, after my husband denied.

IMO/IME docs need to have copies of any C & P exams that denied the claim.

They hold exactly what the claim needs to overcome, medically.

Also- have you googled the C & P doctor yet? They might have NO expertise at all to have even done the exam.

The claim I got IMOs for was for Diabetes Mellitus- never diagnosed or treated by the VA where my husband had been a patient for many years.I already got DIC under 1151 (malpractice) but shaped this claim ( another malpracticed issue) for direct SC death.

Nothing is impossible and it was the most important issue I ever had with VA.

The VA C & Ps were done by an Endocrinologist, but I had studied enough Endocrinology to knock down her results myself, but this was the first time I ever had obtained an IMO and it was well worth the cost and time it saved me.I wanted to graduate with Honors, the first civilian to graduate from this  Military University, and I did.

I could not allow the consistent incompetence from my RO (like the consistent  VA malpractice that killed my husband) interfere with my  study program. Marines are Very tough teachers.This is a war college.My college work had to be Perfect..

(actually I ended up with 3 IMOs - the last one was  a freebee from a former VA doctor) and II also had ordered and paid for a 4th CArdio IMO. The BVA had remanded  at first for a Cardio C & P and I got a PA C & P, nocke it down myself medically, sent my lay medical opinion to the BVA, they agreed with me that it was "too speculative" and they S--t canned that opinion.

The forensic firm that had the cardio doc refunded half of my fee ,when I called to tell them I had won the claim.because he had not prepared that opinion yet and the BVA award came very fast after they got my rebuttal to the PA's opinion. I knew more about cardiology than he did.

The CUE, if there is one, is within the decision.

 

 

 

 

 

 

--------------
Posted in Is this a Clear and Unmistakable Error (CUE) ?
Can you scan and attach here ,the denial, to include the evidence list?
>>>> yes, uploaded redacted typed copy as Back Rating Decision.pdf
--------------
Did the IMO doctor fully adhere to the key points in the IMO/IME criteria here at hadit?
>>> Not sure what the Hadit IMO/IME criteria is but uploading his IMO as "Back IMO.pdf    
--------------
"FACT 4: Favorable Findings of the Rating Decision:
- Private examination for Dr. IMO (Board-certified Anesthesiology and Pain Management) opined that chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely than not less secondary connected (due to abnormal gait caused by service connected left ankle disability)."

Is this from the recent denial? or the prior denial? 
>>> this is from the most recent denial
--------------
Also- have you googled the C & P doctor yet? They might have NO expertise at all to have even done the exam.
>>> Yes, She is a pediatric emergency medical physician out of Dallas, TX
----------------------------

I am also uploading a copy of the supplemental claim I am working on. Back Supplemental Claim.pdf

 

Back Rating Decision.pdf Back IMO.pdf Back DBQ by VA (VES).pdf Back MO by VA (VES).pdf

Back Supplemental Claim.pdf

Edited October 21, 2019 by dwbell99
added back supplement Claim file

[Berta]

Your IMO reads:

"is this provider's medical opinion that Veteran's chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely than not 50% secondary connected (due to abnormal gait caused by service connected left ankle disability)."

The first decision you posted says this:

"* Favorable finding identified in this decision ***
- Private examination for Dr. Sean Burgest (Board-certified Anesthesiology and Pain Management) opined that chronic L5-S1 disc degeneration & bilaterla lower extremity sciatica are more likely than not less secondary connected (due to abnormal gait caused by service connected left ankle disability)." That seems to be the  July 19, 2016  IMO.

Where did they get the words" less secondary" from?

Your opinion also states this :

"PEER REVIEW SUPPORTING THIS MEDICAL OPINION (When Lower Extremity Dysfunction Contributes To Back Pain) Dr. George C Trachtenberg DPM"

Did you have a Peer Review report from this doctor as well, and if so did VA have it?

Or did the IMO doc attach it to their opinion? 

Here is a copy of it:

https://www.podiatrytoday.com/when-lower-extremity-dysfunction-contributes-back-pain

 It appears that VA maniulated your IMO to say what it did not say.

Also when a doctor does an IMO and uses medical abstracts or texts, they should attach the link (or the abstract, study etc)and put excerpts from the link and then state how your disability falls into the criteria of the specific medical texts.

He probably googled this (" Peer Review "has a different meaning to VA-in this context no documented Peer review occurred ) and your IMO should have expanded on it, so that VA would understand the medical relationship of your issues.

I haven't read the link but there are possibly many many more studies on the internet that support your claim.

 

 

[dwbell99]

3 hours ago, Berta said:

Your IMO reads:

"is this provider's medical opinion that Veteran's chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely than not 50% secondary connected (due to abnormal gait caused by service connected left ankle disability)."

The first decision you posted says this:

"* Favorable finding identified in this decision ***
- Private examination for Dr. IMO (Board-certified Anesthesiology and Pain Management) opined that chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely than not less secondary connected (due to abnormal gait caused by service connected left ankle disability)." That seems to be the  July 19, 2016  IMO.

Where did they get the words" less secondary" from?

Your opinion also states this :

"PEER REVIEW SUPPORTING THIS MEDICAL OPINION (When Lower Extremity Dysfunction Contributes To Back Pain) Dr. George C Trachtenberg DPM"

Did you have a Peer Review report from this doctor as well, and if so did VA have it?

Or did the IMO doc attach it to their opinion? 

Here is a copy of it:

https://www.podiatrytoday.com/when-lower-extremity-dysfunction-contributes-back-pain

 It appears that VA manipulated your IMO to say what it did not say.

Also when a doctor does an IMO and uses medical abstracts or texts, they should attach the link (or the abstract, study etc)and put excerpts from the link and then state how your disability falls into the criteria of the specific medical texts.

He probably googled this (" Peer Review "has a different meaning to VA-in this context no documented Peer review occurred ) and your IMO should have expanded on it, so that VA would understand the medical relationship of your issues.

I haven't read the link but there are possibly many many more studies on the internet that support your claim.

 

 

Berta, 

Here are the answers to your questions.

---------------------------------------------------------------------------
Your IMO reads:

"is this provider's medical opinion that Veteran's chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely than not 50% secondary connected (due to abnormal gait caused by service connected left ankle disability)."

****** ANSWER: This is from the Corrected Supplemental claim for Back  (Thoracolumbar Spine) Conditions DBQ dated October 18, 2017.
---------------------------------------------------------------------------
The first decision you posted says this:

"* Favorable finding identified in this decision ***
- Private examination for Dr. IMO (Board-certified Anesthesiology and Pain Management) opined that chronic L5-S1 disc degeneration & bilaterla lower extremity sciatica are more likely than not less secondary connected (due to abnormal gait caused by service connected left ankle disability)." That seems to be the  July 19, 2016  IMO. 

Where did they get the words" less secondary" from?

****** ANSWER: the VA rater changed IMO's statement.

    FROM:
        It is this provider's medical opinion that Veteran's chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely than not 50% secondary connected (due to abnormal gait caused by service connected left ankle disability).
        
    TO:
        Private examination for IMO (Board-certified Anesthesiology and Pain Management) opined that chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely than not less secondary connected (due to abnormal gait caused by service connected left ankle disability).
        
    ALSO: VA rater in REASONS FOR DECISIONS VA rater wrote: 
        Private examination for Dr. IMO (Board-certified Anesthesiology and Pain Management) opined that chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely due to abnormal gait caused by service connected left ankle disablilty.
---------------------------------------------------------------------------
Your opinion also states this :

"PEER REVIEW SUPPORTING THIS MEDICAL OPINION (When Lower Extremity Dysfunction Contributes To Back Pain) Dr. George C Trachtenberg DPM"

Did you have a Peer Review report from this doctor as well, and if so did VA have it?

Or did the IMO doc attach it to their opinion? 

****** ANSWER: A copy of the PEER REVIEW SUPPORTING THIS MEDICAL OPINION was attached by the IMO so the VA had it.

---------------------------------------------------------------------------