Supplemental Claim Denied w/IMO, High-Level Review Next?

[lawbro]

Hi All

To make a long story short, last year the VA granted my right-knee tendinitis 10% but said my left-knee was NOT service connected. I reached out and obtained an IMO from Dr. Anaise whose IMO opined that either my left-knee tendinitis WAS service connected or that it was secondary to my service connected right-knee. 

I filed a supplemental claim at the end of June and just received the decision back that they stuck with the original decision to not grant me anything for my left-knee tendinitis, stating that it was still not service connected. 

How should I go about the next step in the process? I seem to read a lot that High-Level Reviews are a waste of time and perhaps go straight to BVA. Also, should I also look into getting an attorney for the High Level Review or just wait to see if it goes to BVA or not?

What do we believe is the best way to go about this?

[Vync]

17 minutes ago, Berta said:

If the VA considers an IMO/IME in their decision, they might find something lacking in it that would not justify an award. But many vets are successful only because they have obtained a strong IMO/IME.

This is definitely true. I had an IMO from an non-VA doc who indicated the disability was "iatrogenic" (i.e. caused by medical treatment) due to medications the VA used to treat my SC disabilities. The IMO was light on details and was a bit dated. The VA sent me to a C&P anyway and denied the claim. Their doc said I didn't have any test results to confirm the condition. However, the because the VA failed to perform their own testing, I'm going to appeal soon.

[Sam N.]

So a quick update to my denied claim for Gout secondary to DMII. I went to see a VSO today, and they provided me a copy of the DBQ the C&P examiner filled out. And of course the verbiage from the decision letter and the DBQ does not match. For one, it mentioned in the decision letter the the examiner opined that my claimed condition was less likely than not(less than 50 percent proximately due to or the result of either of your service connected conditions. However that statement is not written any where on the DBQ. Furthermore it is not even suggested that that is what the examiner intended it to mean. 

The decision letter goes on to say that my chronic kidney disease was diagnosed three years after after my gout. Again, the doctor did not write that on the DBQ, nor is the statement true at all.

So needless to say I will be appealing, but I was thankful the VSO printed out the examiner's DBQ for me.

So for everyone reading this, ensure you get the examiners DBQ and compare it to the decision letter to see if they properly align.

Lastly the info I received from these postings were very helpful, so thank you all so much!

 

 

[Vync]

@Sam N. Sometimes the medical opinion is not found on the DBQ, but is elsewhere. If the C&P exam was done through the VA or one of their contractors, they can write the opinion a couple of ways.

1. Text version
This is where the examiner fills out a form on their computer and it is stored as text. It's all the same questions as on the DBQ, but also includes a section for them to fill out a medical opinion.

2. PDF version
This is the same DBQ you can download on the VA web site. I have seen some doctors write the medical opinion in the "remarks" section, which is just a large blank field.

3. Internal documentation
The VA has an internal document called "MEDICAL OPINION DISABILITY BENEFITS QUESTIONNAIRE" that we cannot download. There is not a dedicated VA Form number associated with it because it is generated dynamically when the examiner is performing the exam and writing the opinion. Check with your VSO because this might be the document the VARO used. I assume it would contain the same wording as what was used in your decision letter. Additionally, just opinion against SC is not enough. They would have to give the justification behind it.

 

[Sam N.]

Thanks for the info Vnyc! I had the same thought as you because the DBQ the examiner submitted was lacking. It talked about gout as if I was filing as a stand-alone claim, and did not address my claim in relation to my to conditions I attributed it to.

Because the examiner signed the DBQ, I just assumed it was the only document he submitted, but you're saying that the examiner could have completed and signed two separate forms, with one being hidden from the VSO's view?

 

[Dustoff1970]

I have read many BVA decisions granting veterans their claims on appeal and Dr. Anaise IMOs were a key part in the veteran winning his appeal at the BVA even though the GD VARO raters ignored/rejected his IMOs and other solid key evidence in favor of the vet.  That is the name of the game with VARO raters to discount or outright ignore your submitted strong evidence. It is their VARO routine from my 30 years experience filing my own claims and appeals (mostly successful).  It is what it is and the raters have no conscience.

Many of the raters are from a group of low energy persons.

Edited January 3, 2020 by Dustoff 11

[dwbell99]

On 10/31/2019 at 11:03 AM, Berta said:

You got excellent advice from above vets-

This definitely sounds like a CUE-because even if they list probative evidence, then if they do NOT consider it at all it is a CUE under 38 CFR 4.6.

When we can read the exact words of the VA in the decision, many here can prepare a CUE for you if I am not here- due to other vet issues I am involved in-(BWN AO )

I have won every CUE I ever filed- and have 2 pending that a VA audit in progess might well resolve.

If I had thought of CUE decades ago, many of my claims would not have taken too long=

the last 2 CUEs I filed brought me an award in mere weeks.

Yes HLR is supposed to seek CUE themselves. A letter I wrote to former Sec  Shulkin caused that change in M21-1MR and others here have been advised of CUEs the HRL person found.

If a vet catches a CUE they need to file CUE ASAP, and direct it as Attention to and put the alpha part of the alphanumeric on the denial. That alpha contains the code for the name of the last person who signed off on your claim, and committed the CUE. Lots of info and templates in our CUE forum.

It is an outrage ( and this happened to me as well) to pay good money for a solid IMO/IME from a real doctor and then to have the VA totally ignore it. How, in any way at all, can that reflect any consideration of our rights?

It cant-it is a CUE.

where is alpha part of the alphanumeric on the denial  located?