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Suggestions to make this VA examiner challenge stronger?


dwbell99

Question

4. VA examiner's medical opinion is entitled to zero weight since it relied on an inaccurate factual premise by (a) rating the wrong disability (sciatica instead of the Back (Thoracolumbar Spine) Conditions DBQ dated 10/18/2017  (b) rating the wrong gait (on the post L3-S1 fusion surgery instead of the pre-operation surgery), and (c) failing to provide documents supporting her rationale that "In order for the ankle pain to have contributed to the development of the lumbar Degenerative Disc Disease, Degerative Joint Disease, stenosis, neuropathy/radiculophy the gait would have to be significantly antalgic and even then it would be unlikely to cause the conditions above", and (d) failing to assign a qualified VA examiner (assigned a Pediatrician who is not qualified through education, training or experience to evaluate and providing a credible medical opinion, for chronic L5-S1 disc degeneration & bilateral lower extremity sciatica conditions.
    38 C.F.R. § 3.159(a)(1) Competent medical evidence

    (a) rating the wrong disability (sciatica instead of the Back (Thoracolumbar Spine) Conditions DBQ dated 10/18/2017 
        Determine what facts are required and what standard of proof applies based on the criteria for entitlement to the specific benefit sought and the procedural issue (original, new, increase, supplemental, presumption, proposed adverse action, and stabilization). 
            21-1,III.iv.5.A.1.f. Overview of Evaluating Evidence 
            
    (b) rating the wrong gait (on the post L3-S1 fusion surgery instead of the pre-operation surgery)
        Determine what facts are required and what standard of proof applies based on the criteria for entitlement to the specific benefit sought and the procedural issue (original, new, increase, supplemental, presumption, proposed adverse action, and stabilization). 
            21-1,III.iv.5.A.1.f. Overview of Evaluating Evidence 

        VA examiner opined that "Veteran's gait not significantly antalgic on today's exam 1/29/2018. 
        
            The Gait the VA examiner is referring to on today's exam is the post-L3-S1 disk fusion and not representative of the abnormal gait that caused the back problems.
    
            Veterans pre-disk fusion abnormal gait was identified by Anil B. Desai, Chief of Compensation & Pension in his Peripheral Nerves Conditions (not including Diabetic Sensory-Motor Peripheral Neuropathy) DBQ dated 12/28/2017.
                8. Gait: 
                   Is the Veteran's gait normal?
                      [No] If no, describe abnormal gait.
                       Mild Limp
                   Provide etiology of abnormal gait:
                      Likely residuals of left ankle surgery

    
    (c) failing to provide documents supporting her rationale that "In order for the ankle pain to have contributed to the development of the lumbar Degenerative Disc Disease, Degerative Joint Disease, stenosis, neuropathy/radiculophy the gait would have to be significantly antalgic and even then it would be unlikely to cause the conditions above".
        "a medical examiner’s opinion that is not supported with an analysis that could be considered and weighed against contrary opinions is inadequate"
            Stefl v. Nicholson, Mar 27, 2007, 21 Vet.App. 120
            
        VA examiner's rationale was "Veteran injured ankle in the service in the 1970s. Veteran subsequently went on to serve until 1992. No back pain noted on exams 11/13/1978,2/28/1984, 1/13/1992. In addition, Veteran's gait not significantly antalgic on today's exam 1/29/2018. In order for the ankle pain to have contributed to the development of the lumbar Degenerative Disc Disease, Degerative Joint Disease, stenosis, neuropathy/radiculophy the gait would have to be significantly antalgic and even then it would be unlikely to cause the conditions above. Therefore, any currently diagnosed condition(s) related to the veteran's claimed bilateral lower extremity sciatica, is less likely than not (less than 50 percent probability) proximately due to or the result of the veteran's left ankle osteoarthritis."
    
        VA examiner's undocumented statement that "In order for the ankle pain to have contributed to the development of the lumbar Degenerative Disc Disease, Degerative Joint Disease, stenosis, neuropathy/radiculophy the gait would have to be significantly antalgic and even then it would be unlikely to cause the conditions above" is of questionable probative value because the following:
    
            PEER REVIEW SUPPORTING THIS MEDICAL OPINION (When Lower Extremity Dysfunction Contributes To Back Pain) Dr. George C Tractable DPM listed in the REMARKS of supplemental claim for Back (Thoracolumbar Spine) Conditions DBQ, by IMO, dated 10/18/2017 contradicts the VA examiner's rationale as follows:
        
                Consider that individuals walk anywhere from 2,500 to 15,000 steps per day.1 If any one of those individuals has a biomechanical foot dysfunction, the resulting abnormal movement and function can and will alter gait, putting stress and strain on muscles, bones and joints in regions of the body remote to the foot.
            
                When this altered gait is repeated day after day, week after week and year after year, it ultimately weakens muscles and joints, causing pain, arthritis and increased susceptibility to injury.
            
                   As the decades pass and podiatric biomechanics is seemingly better understood, the significant influence gait abnormalities can have on musculoskeletal symptoms and dysfunctions in the proverbial “kinetic chain,” as a result of secondary postural changes, becomes more apparent. No longer should we isolate our thinking to the pathological effects these gait abnormalities create within the foot. We also need to consider the effects of these gait dysfunctions proximal to the foot.
               
                   Indeed, foot dysfunction may be the etiology or a contributing factor in many pathological conditions, including those affecting the back, hips and knees as well as other joints, bones and muscles. As a result of these postural changes, there is subsequent redistribution of ground reactive forces and the forces altered and redirected via compensations and the repetitive movements involved in gait.
               
                   If a patient has a condition (i.e. a painful lower back) proximal to the foot and it is aggravated during or after walking or standing, that may be a good indicator that foot dysfunction is the cause or a contributor to the problem. If this is the case and there are obvious podiatric biomechanical dysfunctions (even in the absence of pain in the feet), one can prevent serious conditions from developing proximally in the kinetic chain. If these serious conditions are already present, the use of appropriate podiatric biomechanical treatment can help manage these conditions, alleviate pain and provide an environment to prevent further deterioration in these regions.
            
                When Lower Extremity Dysfunction Contributes To Back Pain is located at: https://www.podiatrytoday.com/when-lower-extremity-dysfunction-contributes-back-pain
                
            Citation Nr: 0720781 Decision Date: 07/12/07 
                States that competent medical evidence establishes that the veteran's left ankle disability contributed to the development of degenerative disc disease of the lumbar spine. 
        
            Citation Nr: 1522367 Decision Date: 05/27/15 
                States that evidence is in equipoise as to whether the Veteran's low back, bilateral knee and left ankle disabilities have been caused by his service-connected post-traumatic arthritis of the right ankle.
        
            VA medical examiners medical opinion is further rebutted by a medical treatises concerning workplace place and Insurance appeals for the Canadian Government.  
                It states that limping can accelerate normal aging change and thus cause back symptoms, because each type of limp causes exaggerated bending and rotation of the trunk, it is probable that over time, this could accelerate normal aging change and thus cause back symptoms. The L.4 - 5 and L.5 - S.1 spinal segments of normal individuals have the greatest motion in the lumbar spine. Greater motion causes an increased potential for lumbo-sacral disc breakdown. The incidence of herniated disc is greater at L.4 - 5 and L.5 - S.1 than at any other lumbar disc space. From a purely biomechanical perspective, increased spinal segment motion due to repetitive and exaggerated lateral bending of the spine as a result of a significant limp, would enhance the potential for disc breakdown e.g. disc herniation and degenerative change, particularly at the L.4 - 5 and L.5 - S.1 levels.
                    
                    From Limping and Back Pain, Medical Discussion Paper prepared for The Workplace Safety and Insurance Appeals Tribunal, dated March 2004 by Dr. Ian J. Harrington, B.A.Sc., P. Eng., M.D., F.R.C.S.(C), M.S., MSc. (Strath.) Orthopaedics 
                    located at http://www.wsiat.on.ca/tracITDocuments/MLODocuments/Discussions/limping.pdf
                    
                    NOTE: (Orthopaedics is the branch of medicine dealing with the correction of deformities of bones or muscles)    

            
    
    (d) failing to assign a qualified VA examiner (assigned a Pediatrician who is not qualified through education, training or experience to evaluate and providing a credible medical opinion, for chronic L5-S1 disc degeneration & bilateral lower extremity sciatica conditions). 
        38 C.F.R. § 3.159(a)(1) Competent medical evidence
        Stefl v. Nicholson, Mar 27, 2007, 21 Vet.App. 120
        Nieves-Rodriguez v. Peake, Dec 1, 2008, 22 Vet.App. 295
        "Evidence from a source that is not competent to establish a fact does not have probative value on that fact." 
            M21-1, III.iv.5.A.2.e.  Determining the Probative Value of Evidence
        "Evidence from a source not having the requisite competency to offer a particular type of evidence has no probative value."
            M21-1, III.iv.5.A.1.f.  Overview of Evaluating Evidence
            
        The Code of Federal Regulations requires that to be competent, a medical opinion must be “provided by a person who is qualified through education, training or experience” to offer one. 38 C.F.R. § 3.159(a)(1) Competent medical evidence.  Competency requires some nexus between qualification and opinion. Dep’t. of Veterans Affairs Proposed Rules, 66 FR 17834-01, 17835 (Apr. 4, 2001) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (stating that “opinions of witnesses skilled in that particular science, art or trade to which the question relates are admissible in evidence”), overruled on other grounds by King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012)).

        However, the VA Benefits from a presumption that it has properly chosen a person who is qualified to provide a medical opinion in a particular case. Sickels v. Shinseki,  643 F3d 1362, 1366 (Fed. Cir. 2011).  Even though the law presumes the VA has selected a qualified person, the presumption is rebuttable. See Bastien v. Shinseki, 599 F.3d 1301, 1307 (Fed. Cir. 2010) (explaining that a veteran challenging the qualifications of a VA-selected physician must set forth specific reasons why the veteran believes the expert is not qualified to give a competent opinion).

        Given that one part of the presumption of regularity is that the person selected by the VA is qualified by training, education, or experience in the particular field, the presumption can be overcome by showing the lack of those presumed qualifications.

        I hereby request that a copy of the C&P Doc’s resume, CV, list of publications, list of specialties, etc., such that his/her experience and qualifications may be examined, reviewed, questioned, and/or challenged. I specifically request that any and all information stored in VetPort – or any other system of records – that pertains to the Examiners’ credentialing as a medical professional since the Examiner’s date of first employment and/or association with the VA – be included in my C-File and specifically examined by the BVA and CAVC to determine the adequacy of the Examiner’s so-called expertise.  38 U.S.C. 7402; 38 CFR Part 46;VHA Handbook 1100.19; VA Handbook 5005, Part II, Chapter 3; VHA DIRECTIVE 2012-030.
    
        Furthermore, I object to the following aspects of the VA Examiner’s opinion:
    
            i) The lack of support in the opinion with scientific, technical or other specialized knowledge, and how it relates to the conclusion being sought
        
            ii) The lack of  facts, tests, or data on which to base the opinion.
     
            iii) The lack of evidence demonstrating the Examiner’s conclusion is the product of reliable principles and methods
     
            iv) The Examiner’s failure to reliably applied medical, scientific, and or forensic principles and methods to the facts of the case.

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Is this directly from a rating decision or a draft of your challenge to the decision?

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