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

[JKWilliamsSr]

10 minutes ago, Buck52 said:

Okay   well request another exam!!! or face the consequence and Appeal after denied...>  if denied?

Already did that.  I called the 800 number and filed a complaint about the exam on Friday.  I am re-working my memorandum for record with all the contentions on the exam and will fax it in on Monday.

Edited December 8, 2019 by JKWilliamsSr

[Buck52]

you will need to wait for the denial..and then do this

CUE THEM

Under 38 CFR 3.105(a) a clear and unmistakable error (CUE) exists if all three of the following requirements are met: either the correct facts, as they were known at the time, were not before the adjudicator, (e.g., the adjudicator overlooked them) or the statutory or regulatory provisions extant at the time were incorrectly applied the error must be the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and the determination must be based on the record and the law that existed at the time of the prior adjudication in question.

 

[vetquest]

Just a note, if you CUE them also file for an appeal.  The CUE may not finish out in time for you to file your appeal, you have a year, and you would lose your ability to file an appeal.  Keep both bases covered.

[GBArmy]

Great advise from vetquest here. People get so cranked up being denied that they jump to go to CUE, when another path will have a better chance because CUE is such a harder standard to accomplish. So, if at all possible, you want to do a supplemental or HLR route AT THE SAME TIME.  It is legal, easier presumably than the CUE, and can happen at the same time. Probably quicker results as well. It wakes the VA up that there is a CUE also in the system so they really aught to get their act together on giving you a fair shake.; they really try to not to lose a CUE appeal. And as vetquest said, it keeps your claim open in case you need to appeal later.

[john999]

These claims are often based on who is the bigger pitbull, you or the VA.   They know if they just dream up any reason to deny you half of vets quit right there.  So this is a long distance race.   These VA docs are not punished for writing up reports that make you look like 18 year old Olympic swim team member.   Persistence is key, plus all the good advice you get here on IMO/IME format.

[Vync]

@JKWilliamsSr With your C&P being performed last month, I assume your claim is still alive and you will not be able to file a CUE. Honestly, this is the right time to contest issues with the VA. You don't want to wait and deal with it later after your appeal options have expired.