Looks like my back claim will get denied and the C&P exam was a joke

[JKWilliamsSr]

I filed a supplemental claim to have my back claim reopened.  I did this with new evidence which included an IME from the Ellis Clinic.    I had a C&P exam on November 5th and was finally able to view the notes today.  The exam was a joke and I knew this going in. 

My appointment was scheduled for November 5th at 1:00 pm.    By 1:14 pm the exam was done with the results and completed DBQ uploaded to the system.    So  we are expected to believe that a doctor can properly complete a C&P exam, make accurate determinations and fully complete a DBQ in 14 minutes?  Do they really think we are that stupid?

For lack of a better word this examiner flat out lied on the DBQ.  I will paraphrase some of the questions for simplicity.  It is funny because I have submitted personal statements that actually contradict the bullshit the examiner wrote. 

1.  The examiner stated I did not report flare up.   Well considering he did not ask me a single question it would be hard to report a flare up.  That is why I submitted personal statements. 

2. The examiner stated that I did not report any functional loss or functional impairment - This is a complete flat out lie because at the start of the appointment the examiner said to me. "Tell me about your back"  and I proceeded to tell him everything I was going through. 

3. The examiner stated that my obesity is the cause of my back issues. 

4.  The examiner stated that I am being examined after repetitive use over time - Another lie. Not sure how he could even make that determination. 

5. Examiner stated that I was only seen twice for my back -  Another lie.  There are 9 active duty visits for my back in my records. 

Oh......and while he did ROM testing he did not use a goniometer 

I am completely at a loss for words.  This is actually numbing because I did everything I could to make sure they had all the info they needed and a lazy C&P examiner does not do his job. 

I will be calling the white house hotline today to complain about this. 

November 2019 C&P exam.pdf

Edited December 5, 2019 by JKWilliamsSr

[Vync]

I assume the PA reviewed your records before the exam and may have pre-populated much of the report in advance. That is a normal practice. However, it sounds like a lousy exam to me.

You have a C&P by a PA against SC and an IME (I assume by an MD) for SC. If that's the case, the VA should grant SC based on your IME. The PA failed to contest the more favorable findings from the IME or even entertain the possibility that your obesity was caused by pain limiting your ability to exercise.

Additionally, these are the instructions for musculoskeletal exams. The part covering the goniometer requirement gives the VA free reign to assume it was used even if it wasn't (which is BS):

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000014194/M21-1-Part-III-Subpart-iv-Chapter-4-Section-A-Musculoskeletal-Conditions?query=favorable exam

 

These instructions tell them how to handle examination reports. There are a bunch of requirements listed. If any are missed, the report is deemed insufficient.

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000015812/M21-1-Part-III-Subpart-iv-Chapter-3-Section-D-Examination-Reports#4

 

Might be worth waiting to see what the rating decision says. You might have been granted SC. If you are, then that would be great. The only thing left would be getting the correct rating.

 

[JKWilliamsSr]

1 hour ago, Vync said:

Quote

You have a C&P by a PA against SC and an IME (I assume by an MD) for SC. If that's the case, the VA should grant SC based on your IME. The PA failed to contest the more favorable findings from the IME or even entertain the possibility that your obesity was caused by pain limiting your ability to exercise.

In theory that is how it is supposed to work but we know that is rarely the case.  Most of my other claims for the new(secondary)/increase were denied with the very same IME submitted and they gave a Nurse Practitioner full weight and my IME zero weight and it completed by a MD. The truth is I believe the IME I submitted is for the most part being completely ignored.  I can say with absolute certainty that the most current C&P examiner did not look at it because he would not have tried to say obesity is the cause of my back issues. 

I am diagnosed with type 2 diabetes.  In my IME my doctor gave me a nexus to service connect my diabetes by using obesity as in intermediate step.  He said pain from my musckoletelal issues prevented me from exercising and that led to my being obese which caused my diabetes.  

I am currently 5'11 tall and weigh 270 and while I accept that is obese this guy makes it seem that my back would not hurt if I was not overweight.   The thing about his rationale is that he just can't say my back issues are caused by weight. He would still have to give a valid opinion as to how specifically my weight is caused the back issues.   He just can't say your back hurts because you are fat.....lol

 

 

 

 

[Oceanbound]

He obtained the IME from Ellis and the C&P likely saw it in the record and denied it. This happen to me as well, when I had the IMO from Dr. Anaise. 

File a complaint and get a new one.

[JKWilliamsSr]

5 hours ago, Oceanbound said:

He obtained the IME from Ellis and the C&P likely saw it in the record and denied it. This happen to me as well, when I had the IMO from Dr. Anaise. 

File a complaint and get a new one.

What you said makes perfect sense and after taking a closer look at the DBQ it is more than likely true.   I am going to call the 800 number tomorrow to file a complaint for an inadequate exam.   I think this DBQ was done in a certain way to try to avoid following certain required decisions.

1.  By stating that I stated that I did not experience any flare-ups this gives the examiner the out of not having to apply Deluca.

2.  By stating that I did not report functional loss this gives the examiner the out of not having to apply Mitchell

3. The examiner ignored favorable evidence which is in violation of Nieves-Rodgriguez v. Peak

4. The Examiner stated that there are only 2 clinical visits for my back.  I submitted 9 with my claim. However the absence of service records is not negative evidence.  Other evidence was available and not reviewing this is in violation of Bucyzynski v. Shinseki

5. The rater did not use a goniometer for ROM testing.

 

[GBArmy]

JKWilliamsSr

Appeal to BVA. Too much of a legal hurdle to try HLR; they won't change their decision. IMO.

[paulstrgn]

I had a similar experience with SA, the VA used a PA to give an opinion and I had two MD opinions. The VA went with the PA opinion and ignored my two MD opinions, same at the HLR. It took the BVA to approve my SA, they actually read my medical opinions.

Even though I prefer to go the HLR route (its faster) GB is right the BVA would probably be your better route. Now if you get the right senior rater who actually reads your evidence then they would approve it at the HLR level.

I am assuming you are filing all this within one year of your decision.

Good luck!