Old decision riddled with errors?

[Vync]

My initial claim for my back was filed in 1995, denied, appealed to the BVA, remanded for a C&P exam, but it was denied in Feb 1998. In 2009, I filed a new claim and won (in 2013) SC for lumbar, cervical, and radiculopathy. If possible, I would like to get an earlier effective date, but did not know that at that time. 

The C&P exam is riddled with issues and the rating decision is also very vague. I started working on trying to tie this back to 38 CFR.

 

Here are the specific BVA remand instructions:

Quote

BVA REMAND.
VETERAN IS CLAIMING SC FOR [redacted]...BACK CONDITION. SEE PAGES
2, 3, AND 4 OF REMAND DATED 7-17-97. DO A GENERAL MEDICAL TO DETERMINE
THE NATURE AND EXTENT OF ALL OTHER ALLEGED DISABILITIES. THE EXAMINATION
SHOULD INCLUDE AN EVALUATION OF, BUT NOT LIMITED TO, THE ABOVE MENTIONED
DISABILITIES. ALL APPROPRIATE TESTS AND STUDIES SHOULD BE PERFORMED.
THE EXAMINER SHOULD BE REQUESTED TO ASSESS ANY AND ALL DISABILITIES PRESENT
AND RENDER AN OPINION AS TO WHETHER THEY ARE ETIOLOGY RELATED TO SERVICE.
A COMPLETE RATIONALE FOR ANY OPINIONS EXPRESSED SHOULD BE PROVIDED.
THE CLAIMS FOLDER SHOULD BE PROVIDED TO THE EXAMINER IN CONJUNCTION WITH
THE EXAM. PROVIDE ROM STUDIES, X-RAY REPORTS AND STATEMENT OF FUNCTIONAL
LOSS DUE TO PAIN FOR ALL AFFECTED JOINTS.

 

Here's the C&P exam:

Quote

A. Review of Medical Records:

    "I injured my spine in the service, but it is difficult for me to remember exactly when. It doesn't cause me a lot of trouble at this. time. I injured it the second time in September 1984."

Error: Wrong year. It should have been 1994. I admit, it is a typo.

Error: The doc did not quote from any of the in-service injuries from my STRs (including a major car accident). They just quoted parts of what I stated during the exam. 

B. Present Medical History (Subjective Complaints):
Comment on:
    1. Complaints of pain, weakness, stiffness, fatigability, lack of endurance, etc.
    
    "Now, I have pain, but no weakness, stiffness, fatigability, or lack of endurance. The pain is not every day."

Note: Lay testimony/evidence of experiencing pain

    2. Treatment - type, dose, frequency, response, side effects.

    "I went to the medical doctor in Gadsden at Durham Medical Clinic and they gave me Ultram and Lodine. It helped some."

    3. If there are periods of flare-up:
        A. State their severity, frequency, and duration.

            "Every week or so."

        A. Name the precipitating and alleviating factors.
        
            "Weather changes"
        
        C. Estimate to what extent, if any, they result in additional limitation of motion or functional impairment during the flare-up.

            "10%"

Note: More lay testimony/evidence of periodic flare ups

    4. Describe whether crutches, brace, cane, etc., are needed.

        He does not use crutches, brace, or cane.

    5. Describe details of any surgery or injury.

        None

    6. Functional Assessment - Describe effects of the condition(s) on the veteran's usual occupation and daily activities.

C. Physical Examination (Objective Findings):
Address each of the following as appropriate to the condition being examined and fully describe current findings:
    1. Using a goniometer, measure the passive and active range of motion, including movement against gravity and against strong resistance. Provide range of motion in degrees.

    2. If the spine is painful on motion, state at what point in the range of motion pain begins and ends.

        Motion stops when pain begins

Note: Objective evidence of painful motion causing limited motion

    3. State to what extent (if any) and in which degrees (if possible) the range of motion or spinal function is additionally limited by pain, fatigue, weakness, or lack of endurance following repetitive use or during flare-ups. If more than one of these is present, state, if possible, which has the major functional impact.

        Not measurable

    
    4. Describe objective evidence of painful motion, spasm, weakness, tenderness, etc.

        There is no evidence of painful motion, spasm, weakness, or tenderness

Error: Statement contradicts answer given on question 2 

    5. Postural abnormalities, fixed deformity.

        None

    6. Musculature of back.

        Musculature of the back is excellent

    7. Neurological abnormalities - if present, see appropriate worksheet.

        No

D. Normal Range of Motion: All joint Range of Motion measurements must be made using a goniometer. Show each measured range of motion separately rather than as a continuum. 

Flexion to the right 20 degrees, flexion to the left 36 degrees, forward flexion 32 degrees, and backward extension 24 degrees.

Note: These ROM values equate to 20% using today's rating criteria, but at the time the criteria was simply severe, moderate, or slight.

E. Diagnostic and Clinical Tests:
Obtain the following and comment on them, as indicated:
    1. X-rays, MRI, as indicated.
    
    2. Include results of all diagnostic and clinical tests conducted in the examination report.

    F. Diagnosis
    
Degenerative joint disease of the lumbar spine of minimal degree

Note: A clinical diagnosis was made

 

The medical opinion was placed on a different C&P exam

Quote

In answer to the remand, ...there are no clinical findings to substantiate lower back condition... I do not believe that these are etiologically related to the service.

 

Here's the rating criteria in effect at that time

Quote

From the Federal Register: FR-1964-05-22

https://www.govinfo.gov/content/pkg/FR-1964-05-22/pdf/FR-1964-05-22.pdf#page=64

5292    Spine, limitation of motion of, lumbar    
    Severe    40
    Moderate    20
    Slight    10

 

Here's the rating decision:

Quote

 

3. Service Medical Records show the veteran complained of low back pain which was diagnosed as mechanical low back plain. He again complained of pain in the back due to moving furniture. Separation exam dated 11-29-94 shows the examiner did not diagnoses any low back condition. VA examination showed range of motion as flexion to the right 20 degrees, to the left 36 degrees, forward 32 degrees, and backward extension 24 degrees. X-ray of the back was normal. No acute fracture, spondylolisthesis or other acute findings.

Service connection may be granted for a disability which began in military service or was caused by some event or experience in service. Service connection for low back condition is denied.

 

It is very vague.

It doesn't quote from specific STRs showing injuries, PT, car accidents, etc...

It says I was diagnosed in service, but the exit exam did not diagnose anything.

It says no acute findings, but the C&P doctor did diagnose DJD.

It doesn't indicate the C&P medical opinion (even though it was negative)

It doesn't indicate any criteria for meeting the minimum rating.

Possible error: 38 CFR § 4.2 Interpretation of examination reports.

Quote

 

Different examiners, at different times, will not describe the same disability in the same language. Features of the disability which must have persisted unchanged may be overlooked or a change for the better or worse may not be accurately appreciated or described. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Each disability must be considered from the point of view of the veteran working or seeking work. If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.

38 CFR § 4.2 1976 (emphasis added)

 

 

Possible error: 38 CFR § 4.40 Functional loss

Quote

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.

38 CFR § 4.40 1999 (emphasis added)

Of course, my lay evidence (testimony) was ignored.

 

Possible error: 38 CFR § 4.45 – The Joints

Quote

 

As regards the joints the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations:
(a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.).
(b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.).
(c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.).
(d) Excess fatigability.
(e) Incoordination, impaired ability to execute skilled movements smoothly.
(f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions.

38 CFR § 4.45 1999 (emphasis added)

 

 

Possible error: 38 CFR § 4.59 – Painful Motion

Quote

 

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.

38 CFR § 4.59 1999 (emphasis added)

 

 

 

I assume that what the VSR did was see the C&P doc's denial and do as little as possible to close it out. 

 

Edited January 16, 2020 by Vync

[Vync]

2 hours ago, broncovet said:

However, all is not lost:  Remember, there is a method to correct "errors" on your medical records.  Use this regulation:

https://www.law.cornell.edu/cfr/text/38/1.579

If the treating physician admits an error, then you may have a valid CUE which is undebatable:  The doc himself admitted the error.  

For those errors, I suggest you seek to correct those errors with the above regulation.  

Now, as far as the effective date, it sounds to me to be a similar situation to one where VA gives the Veteran a "bad discharge" and later it is changed.   

A bad discharge renders you ineligible for benefits, but if it is upgraded through the proper chanels, I think you can get an effective date when you first applied and were denied based on bad discharge.  

I recall you mentioning correction of records before. However, wouldn't they need the original doctor to perform the correction?

The rules for upgrading a discharge are much more lenient than CUE. The CUE rules are by design anti-veteran and adversarial.

[Vync]

3 minutes ago, vetquest said:

I never knew the value of an EED myself.  I believe the reason the VA does not do this is for cost savings.  The same as delay and deny.  In my EED case the VA saved $40,000 by giving me an EED that was not at the time of disability and I am still fighting it.

That probably explains the reason behind appeal window, effective date, and CUE laws. If they can keep the veterans in the dark long enough, their appeal window will expire and then they can keep the money. If the veteran realizes the VA screwed up, the options to fix via CUE are severely limited. That makes it an adversarial process, despite what the VA says.

[Berta]

Dustoff is correct...  a bad C & P does not warrant a CUE.

If the results are the wrong diagnosis and/or wrong diagnostic code, to your detriment , then  that can be  a valid CUE.

Fortunately there are more ways, nowadays, to fight a lousy C & P exam, which should be done ASAP.

You stated: "If they can keep the veterans in the dark long enough, their appeal window will expire and then they can keep the money."

That is true- but veterans with PCs are not as 'in the dark" as they used to be.

I posted here some time ago the contact info for VES, QTC, and LHI, if you want to complaint about a lousy C & P exam.

Many here have gotten better C & P exam results by complaining to the contractors who hired the C & P doctor.

A WH Hot line complaint can help as well. ( 855-948-2311)

I was able to complain directly to a VA doctor in 1996. But his actual posthumous exam (which he sent to me)was manipulated by the RO in the SOC. At that time I did not realize the benefit of 38 CFR 4.6, as the VA had withheld from him (as well as General Counsel-  a 6 page autopsy that totally overruled his exam results.) He was angry at what the RO pulled on him- but there seemed to be no remedy I knew of then.

That all worked out OK in time but in 1996 the internet was quite limited and I could have, if I had a copy of M21, cued them in a heartbeat. I didn't know any better in those days.

ANY vet getting a lousy C & P exam these days should act fast to get it corrected or get a new exam.I believe if the WH Veterans hot line ,is in any way collecting complaints , specifically due to C & P exams, that in the long run maybe something will be done about this.

Of course an IMO/IME can often overrule a bad C & P exam, but that can be so costly .

The C & P examiners are also from the same contractors that are replacing VA doctors,nurses, etc etc  with "Providers".

VA "Providers" have limited liability if they harm or kill a veteran.

There are Bills in Congress to hopefully change that.

But the VA hates change.

 

Edited January 16, 2020 by Berta
squals , thundersnow, limit to access

[Buck52]

Yes my thinking too vync,

I wish they would just let us march our little happy (butts) to the VARO AND sit with someone in charge or someone who can make a decision on the spot...we could sit at the table open up our folder, pull out our evidence and show them what they did and now make it right..here it in in black and white this is the  VA mistakes  and since I am here to show you these mistakes  now make it right..instead they have to pull a bunch of BS and fiddle fart around  hoping we will just leave and they can just forget the whole damn thing....but for some Veteran they won't quit until they get it right or what they have coming to them.

I suggest study your C-File Over and over make copies  and mark them so you know what is what, look up their meanings on things they make so hard to understand, also an experienced attorney in fixing EED is a good thing  but Not sure what they charge? if they go by the 20%  deal or 30%...or whatever the retro will be  they may want a large piece of it...for me its really not about the money but the principle and how they get away with so much B.S.

IF WE DON'T FIGHT THEY WIN.

[Vync]

2 hours ago, broncovet said:

In a similar way, if you get your medical record Corrected, then you have the Cue element, "either the correct facts were not known"...criteria.

https://cck-law.com/blog/cue-claims-how-to-challenge-a-final-decision/

To win your CUE, you would have to demonstrate that the error was "outcome determinative", that is, the error was "material", not just harmless error.  

I'm familiar with the CCK Law CUE page. I read it before submitting the two current CUE requests last year.

 

I went back and double-checked the rating decision letter to see what "facts" were used:

Quote

EVIDENCE
VA examination dated November 14, 18, 20, 1997, and December 17, 1997 from VA Medical Center Birmingham February 11, 1997. Claim considered based on all the evidence of record.

Of course, they claim that the decision is based on "all evidence of record". That's the VA's catch all excuse.

 

38 CFR § 4.2 Interpretation of examination reports. In brief, it says examiners may not describe disabilities in the same way. It instructs the rater to consider and reconcile the whole recorded history. If the report does not contain sufficient detail, they are supposed to return the report as inadequate for evaluation purposes.

38 CFR § 4.6 Evaluation of evidence says every element affecting probative value must be thoroughly studied by each member of the rating board.

https://www.va.gov/vetapp94/files3/9420031.txt
In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. §§ 4.2, 4.41 (1993)

Quote

§4.41  History of injury (1993).
In considering the residuals of injury, it is essential to trace the medical-industrial history of the disabled person from the original injury, considering the nature of the injury and the attendant circumstances, and the requirements for, and the effect of, treatment over past periods, and the course of the recovery to date. The duration of the initial, and any subsequent, period of total incapacity, especially periods reflecting delayed union, inflammation, swelling, drainage, or operative intervention, should be given close attention. This consideration, or the absence of clear cut evidence of injury, may result in classifying the disability as not of traumatic origin, either reflecting congenital or developmental etiology, or the effects of healed disease.

 

The remand was for several exams which were performed by three doctors. The first part of every C&P report is "Review of Medical Records".

• Dental doc stated, "Medical records were reviewed."
• Eye doc stated, "No records are available."
• Musculoskeletal doc either left the field blank or used it to partially quote what I verbally told them, such as "I injured my spine in service." There is no indication that they actually reviewed any medical records.

 

Quote

38 CFR § 20.1403 - Rule 1403
(d)(3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.

For a fact to be weighed or evaluated, it must have actually have been examined. In my case, the doctor did not state they examined them.

Per Russell v. Principi (1992), "Either the correct facts, as they were known at the time, were not before the adjudicator...". The VARO delegated authority to the C&P doc to adjudicate and render an opinion. There is no proof that the facts were before or reviewed by the doc.

Per the Presumption of Regularity, employees are assumed to do their jobs correctly. However, in my case, one doc stated reviewing the records, one stated they did not, and one did not state it either way or flat out used the field for the wrong purpose. Had they done their job right, they would have did what the other doctors did.

Could the C&P examiner not stating that they reviewed any records be considered an error?

 

 

 

 

 

 

[Buck52]

3 hours ago, Vync said:

@buck52  I ordered a copy of my C-file on disc and it is estimated to arrive in August 2020. I'm not going to make any action on this until I have had time to review contents of the disc. I have a feeling it will be as jacked up as yours.

I do have the other two CUEs in the hopper. If those are approved, then I doubt moving my back claim from 0% NSC to 10% SC might not increase the combined percentage, but it would place it under 20 year protection.

No worries about hijacking my topic. It never hurts to share ideas and experiences.

VYNC

You might think about requesting it again from other sources ,  other that the one you sent in for, if you sent in a request to Janesville Wi , the claims center, try  St Louis  I mean it may beat your request  & if you get 2 C-File which should be the same , but it could be faster. whichever comes in first....double dipping its called.

Also just to let you know Requesting our C-file from more than one source its ok , they may not  like it but there's no law that says we can only request our c-file from one particular place.

just a thought/tip