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CUE (NO WAY!)


FaithIsAChoice
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Question

Hello Everyone:

I found this site a few months ago and have been reading.  I finally bit the bullet to sign on.

I would like to ask @Berta and @broncovet if VARO from the VA Regional Office could give medical opinions in the decision letters?

 

I received a decision letter that specifically stated, "The Veteran's private medical records from Dr. (name) shows a diagnosis of (disability) dated (date) "Therefore, it is the opinion of this reviewer that the Veterans (disability) is less likely than not (less than 50% probability) incurred in or caused by the injury or complaints during the service."

The nexus from the Dr. was more than likely.

Please I would appreciate any help with understanding this from the VARO stating the medical opinion.

Thank you in advance!

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Welcome to hadit!  You have landed in the right place!  

It sounds like VA has done a dirty trick to you, and I may mention you are not alone.  About 80 percent of the appeals which reach the BVA are granted, or remanded due to one or more VA errors.  Only 20 percent are denied again.  

Its amazing how the VARO turned a favorable nexus "at least as likely as not related to an inservice event" into an unfavorable one.  

This isnt the only time this has happened, however!  

In Cushman vs Shinseki, the court found the VA altered the Veterans record in order to make the evidence less favorable to the Veteran.  

https://caselaw.findlaw.com/us-federal-circuit/1346393.html

I think you have 2 choices, and, you can actually do both!

1.  File a CUE disputing the facts, submitting the correct exam report.  

2.  Importantly, if this CUE is not decided within 11months and 2 weeks, then file a nod.  

     Berta is the CUE expert, and she usually cites 38 CFR 4.6, but this is cue error is criteria number 2 in CCK Law's explanation of CUE critieria.  

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

     In other words the "facts were incorrect".  

CCK law recommends caution in filing CUE, and I reiterate that.  Berta has done very well with CUE, and perhaps she will chime in. 

     My recommendation would be NOT to file a Cue at this time, but instead file an appeal.  You could do the SCL (I think you should submit the correct and favorable exam report as new evidence..but that could backfire if VA already has that as evidence.)  Best is if you get a copy of your cfile and see if the correct exam is in there.  You could view your VBMS file in a VSO's office (should he permit you to view the file) and see if the evidence is there.  

      Its my opinion, however, that you should skip SCL, and go directly to a BVA appeal.  I cant advise "which" BVA appeal, tho, as its unclear if you need "new evidence" or if the VA just cant read.  (BVA appeals can be done with or without new evidence).  

    

       

    

Edited by broncovet
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FaithIsAChoice Bronc's advise I also think is correct. You were done wrong. Period. Good job by you. I come to the same conclusion. You could appeal using HLR. It would be quicker; the VA just made a CUE, and if the DRO has his stuff together, he would change the decision in your favor. Unfortunately, that doesn't always work. You could still try that avenue, and if it were denied, then go BVA route. Or, you could just skip the HLR and go to BVA. It will take longer, but much more likely result in a win for you. If not in a hurry but just want to get it right, go BVA IMO.

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 Thanks for joining -I have a far different opinion on what you posted.

Did the independent medical opinion conform to the IMO/IME criteria here at hadit?

for example-

"The nexus from the Dr. was more than likely"-

Did the IMO doctor base that on entries in your SMRs and/or 201 inservice personnel file, with a full medical rationale?

Did this doctor have expertise in area of the disability that fully outweighed the C & P examiner?

Or was this a MH issue and the VA needed more proof of the inservice event, accident,  etc etc, that caused the MH disability?

If the IMO was due to a prior C & P exam, that denied the claim, did the IMO/IME doctor have a copy of the exam and did he/she clearly point out the medical errors in the C & P exam?

CUES are found in the way decisions are worded, and/or  in the Evidence List, and often on the rating sheets.

Can you scan and attach the decision here, with the Evidence list,

and a copy of the IMO/IME?

Redact names and C file # prior to scanning it.

I have seen many " as likely as not" statements , from doctors , for over 2 decades, that do not advance the claim because the IMO/IME is deficient, or because the nexus the veteran  claimed, has not been proven.

Just yesterday I think I mentioned that my husband went to the Newark VA to try to get a business loan.1983

A few hours later he was diagnosed with PTSD by the Director who prepared a Buddy statement for him.

Due to a flashback, he had to wait in a small room and expected to be arrested.

Another Vietnam vet came in too and they started to talk-and my husband revealed a horrific event he had volunteered for in Vietnam. The other vet started to pump him for details of it.

The other vet then said, I have to be honest with you- I am the Director of this hospital but I was there as a VA psychologist, to treat those who did this job -some who had an immediate severe reaction to it.No one but those who were there could possibly know those details.

He was not arrested and apologized profusely to the Oriental VA employee he tried to choke. The director got someone to write the claim, for PTSD and the Director immediately prepared a buddy statement as an eye witness account, and of course this terrible event was all verified in my husband's unit history.And in the National News back here .A few month later (1983 )he got an award letter for SC PTSD and he didnt know what PTSD was and the director told him to go to a vet center , and that is where I met him- I was a VA vet center volunteer.

Things like that do not happen often at all.

Your claim might well need a buddy statement or even more than one.I have no idea what it needs but the decision will reveal that.

My point is that "More than likely" is a nuanced phrase, and not an eyewitness account. It was the only good thing VA ever did for my husband-  to get a diagnosis and buddy statement from the VA within hours  and then to get to the Vet Center. Also the VA contacted him about a Veterans Job Fair and he was immediately hired by a large company due to his work history.

PHVAC Operator and Nuclear Power Plant Equipment Operator .

When we relocated and he worked at the local VAMC, that is when his claims issues and everything else ,to include proper medical care, went downhill.

 

My point is that the IMO/IME  has to be enhanced by documented medical facts.As well as by abstracts and treatise excerpts in some cases.

 

If you paid money for the IMO/IME and it does not conform to the IMO/IME criteria that VA will accept, maybe you should contact the doctor for more details to bolster the IMO.Or get a better IMO/IME.

But you will still need a proven inservice nexus-

then again I am guessing here about everything . but knowing nothing factual, 

and once we see the decision, the Evidence list, and the IMO/IME- we can advise better.

I see no basis for CUE, at this point.

 

 

 

 

 

 

 

 

 

 

 

Edited by Berta
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I agree with Berta...we dont know if the nexus "meets VA's criteria" or not.

I made a mistake of assuming the nexus was valid, but that was an incorrect assumption, because I have not read the nexus.

If the nexus was deficient, then you will need a valid nexus for your claim to succeed.  This is, in no small part why I suggested, "it would be best if you got a copy of your cfile".  The nexus exam should be in it.  If you have access to the exam, the VA seems to have different standards for their own doctors or their contractors, then they do if we hire a doctor Independent Medical Opinion.  

Your nexus needs:

1.  You have to demonstrate the doctor is competent to opine.  He needs to show expertise in the applicable field, usually by submitting the doctor's CV detailing his medical training and experience.  He is basically acting as an "expert witness" and he has to show expertise to be an expert, such as Board certifications, etc.  

2.  If this is an IMO, then the doctor needs to state "he reviewed your records".  

3.  He needs to provide the nexus statement in a way the VA understands.  It "may" or "could be" connected to service is insufficent.  He needs to say its "at least as likely as not" connected to an in service event.  

4.  He has to give medical rationale as to why he made this opinion.

     If any of these things are missing or insufficent, your nexus wont fly.  

Edited by broncovet
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I will bump up the IMO IME criteria  in our IMO forum-

it is on page 6 of that thread.

 

Edited by Berta
in cloud
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I recently had this happen to me as well during the whole "RAMP" phase. They kicked the denial back at me and had decided to opine on it themselves. I'm now awaiting BVA for my hearing (almost been a year now). The scope is on the VA and they have been seemingly working double overtime to get caught up with all appeals, so it's looking good for a lot of our veterans (potentially).

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On 3/13/2020 at 7:37 AM, Berta said:

Can you scan and attach the decision here, with the Evidence list,

and a copy of the IMO/IME?

Thank you @Berta for sharing your stories and @broncovet for your replies, truly appreciate it!

I had much difficulties on scanning and posting, so I hope this link works.

I have submitted a statement regarding all my military records have been lost with the of 3 pieces(dd214, lod, and a private doctors slip). 

The VARO omitted my previous x-rays and mri's that are in my cfile and changed dates on the evidence to reflect a much later date than what was originally received by the VA(not sure if they could do that as well).

 

My initial application was 2009 

Thank you

Edited by FaithIsAChoice
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I am not familiar with that photo program and cannot zoom it larger to read  it better - will keep trying.....

Others might have more experience with this program

 

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3 hours ago, Berta said:

I am not familiar with that photo program and cannot zoom it larger to read  it better - will keep trying....

@Berta

I have submitted a statement regarding my entire military file records that are lost with the exception of a faded side of my enlistment copy, DD214 and 2 other pieces (thank God it was an lod and a my private doctor that I had seen after my first injury) 

The VARO omitted my previous x-rays and mri's that were completed years ago that are in my cfile and changed dates on the evidence that were submitted with my original application in 2009 to reflect a more current date in 2014 and 2016 (Can they do that).  I still have all my original copies from my 2010 decision that stated i was only missing my diagnoses.  

March 5, 2020

REASON FOR DECISION:

Service connection for abdomen condition/pain

A claimant may file a supplemental claim....and in support of your claim...

"While your service treatment records reflect complaints, treatment, or a diagnosis similar to that claimed, the medical evidence supports the conclusion that a persistent disability was not present in service. (38 CFR 3.303)

We did not find a link between your medical condition and military service.

The VA medical opinion found no link between your diagnosed medical condition and military service. The VA Examiner's rationale was: The Veterans service treatment were silent for any intestinal complaints or diagnoses. the Veterans service treatment records show evidence for injury to the left side of abdomen, but the file is silent for any additional complaints regarding the abdomen. the Veteran's private medical records from Dr.__shows a diagnosis of IBS which is post separation from the military. Therefore, it is the opinion of this reviewer that the Veteran's IBS is less likely than not (less than 50% probability) incurred in or caused by the injury or complaints during the service.

The medical opinion we received from the VA Medical Center was  more persuasive than your private physician's opinion because it was based on a thorough review of your relevant military and/or personal history and contained a more convincing rationale (38 CFR 4.6)

FAVORABLE FINDINGS IDENTIFIED IN THIS DECISION:

You have been diagnosed with a disability. You have been diagnosed with irritable bowel syndrome."

Service connection for slipped disc and low back pain

 A claimant may file a supplemental claim....and in support of your claim...

"We did not find a link between your medical condition and military service

The VA medical opinion found no link between your diagnosed medical condition and military service. The VA examiner's rationale was: The Veteran's service treatment records were silent for any injuries, falls, or complaints of the back. The Veteran's medical records from 9/2011 shows evidence for back pain s/p assault and also medical records from 1/2013 show that she was involved in an auto accident causing back pain resulting in a lumbar strain. Therefore, it is the opinion of this reviewer that the Veteran's slipped disc and low back pain are less likely than not (<50% probability) incurred in or caused by the falls, injury, or complaints during service.

The medical opinion we received from the VA Medical Center was more persuasive than your private physician's opinion because it was based on a thorough review of your relevant military and/or personal history and contained a more convincing rationale. (38 CFR 4.6)

FAVORABLE FINDINGS IDENTIFIED IN THIS DECISION:

You have been diagnosed with a disability. You have been diagnosed with lumbosacral strain and degenerative arthritis of the spine.

Degenerative arthritis of the spine is a chronic disease which may be presumptively  linked to your military service.

You have sufficient service to meet the minimum requirements for presumptive service connection."

REFERENCES:

TITLE 38......

EVIDENCE:

SPR, LOD , Form 21-256 received August 2009, VA 21-526EZ, VA 21-4138 (relating to 2009 non addressed issued), Lay evidence MO Unavailability of STR, VA letter concerning your claim, Rating decisions (3), RTR, VA 20-0995 (2) Timeline of events VA 21-4138 Statement of support, Sworn statement from veteran, VA DBQ (Back (Thoracolumbar  spine) condition from QTC,  VA DBQ's Back (Thoracolumbar Spine) condition and Intestinal Conditions from VES, No relevant treatment records from any VA Medical Center available for review, Private medical opinion SN (I was told that the VARO placed this in the STR category instead of the Doctor's category)

IME:

January 2020

To whom it may concern:

I am Dr. __, M.D. Board Certified in Family Medicine. My credentials are included. I have been asked to write a statement in support of the aforementioned veteran's claim.

I have personally reviewed ___medical history.  She brought for my review a lumbar x-ray report from 5/19. She also had a listing of MRI imaging 91',93', & 96' but those reports were not available. I have also reviewed and noted the circumstances and events of her military service which include a fall during___resulting in back and abdominal pain as well as re-injury. First injury__ Second injury__         Military Service 1986-1994.

(Veteran) was under my care during_____ She re-established____. 

I am familiar with her history and examined (Veteran) while she has been under my care. She has had a CT scan of the abdomen and pelvis and MRI of the lumbar spine done January 2020. The current MRI and CT scan confirms degenerative disc disease and arthritis of lumbar spine and show no intraabdominal pathology that would cause her pain. Arthritic conditions and DDD would cause low back pain in this area and radicular pain to the abdomen and leg. Chronic stress from painful conditions and life circumstances also can precipitate irritable bowel syndrome. 

(Veteran) has no other known risk factors that may have precipitated her current condition.

Her current diagnoses are:

Myofascial pain of abdominal wall [R10.31, M70.18]  Osteoarthritis of lumbar spine with Degenerative dis disease [M51.36, M47.816]  Irritable bowel syndrome with both constipation and diarrihea [K58.2]

After review of her current imaging, pertinent records, taking her medical history and conducting a physical examination it is my professional opinion that it is highly likely that (Veteran) current condition is a direct result of her (injuries) during military service. Sincerely, Dr.___

Edited by FaithIsAChoice
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By LOD, do you mean Line of duty injury evidence?

By SPR do you mean Service personnel Records?

VA said:

"The Veteran's service treatment records were silent for any injuries, falls, or complaints of the back."

If the SMRS ( STRS) are missing,  how would the VA know they were "silent"?

I suggest that you try to obtain Buddy Statements- from anyone in your unit same time, same place ,of the injury, who can give a detailed eye witness account of what happened to you..

The proper format for buddy statements is available here under a search.

Just about every unit has a web site, and even 'lookin for 'areas and reunion lists.

I found a buddy for someone here just by googling their name. I knew his occupation- Chaplain- Many names popped up -all the same, but one had the man's occupation listed, and he was the exact person the vet needed to find..

The IMO Doc's statement here:

 "I have also reviewed and noted the circumstances and events of her military service which include a fall during___resulting in back and abdominal pain as well as re-injury. First injury__ Second injury__         Military Service 1986-1994."

But all of that has dates missing.

Where did he obtain that information to review? Was it in the LOD or SPRs?

He gave no medical  rationale for how  the back injury caused the current disability.

Also he stated " Arthritic conditions and DDD would cause low back pain in this area and radicular pain to the abdomen and leg. " That has to be tied into the back injury, that precipitated those disabilities .. the "Nexus factor." .

and 

"Chronic stress from painful conditions and life circumstances also can precipitate irritable bowel syndrome. "

True but that also will not help any IBS claim  at this point.. A strong rationale needs to be given for the IBS as directly due to the Back injury and the subsequent disabilities.

Others will chime in.

 

 

 " I still have all my original copies from my 2010 decision that stated i was only missing my diagnoses.  "

Can you post the 2010 decision?

Have you applied for SSA(SSDI) since filing your claim- the SSA obtains all STRs  and they might still have them.

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3 hours ago, Berta said:

LOD, do you mean Line of duty injury evidence?

By SPR do you mean Service personnel Records

Correct. The only Service Personnel Records are Dd214 and a faded 1 side of copy of my enlistment.

I never went to a VA Medical Center.

My C&P's exams by QTC(NPR) and VES (1 Trauma Doctor 1 PA)contractor

3 hours ago, Berta said:

But all of that has dates missing

IME: All dates were listed. I left them off here.

 

VARO didn't list all my dates or changed the dates  & evidence 

3 hours ago, Berta said:

Where did he obtain that information to review? Was it in the LOD or SPRs?

Yes, the same information that the VA has.

 

3 hours ago, Berta said:

Can you post the 2010 decision?

Have you applied for SSA(SSDI) since filing your claim- the SSA obtains all STRs  and they might still have them.

I received a decision  Janaury 2020 which didn't include my new and relevant evidence from supplemental claim September 2019. They based the January 2020 decision from a decision that was 2016.

No, I haven't applied to SSA.

Edited by FaithIsAChoice
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The decision maker "gave more weight" to the negative (VA doc opinion), than your IME doctor.  VA regulations permit the decision maker to weigh one exam over another provided that they give a reasons and bases for doing so.  

You posted the decision maker's rationale for doing so:

Quote

The medical opinion we received from the VA Medical Center was  more persuasive than your private physician's opinion because it was based on a thorough review of your relevant military and/or personal history and contained a more convincing rationale

Let's take those 2 reasons and seperate them:

1.  "based on a thorough review".  I did not read the VA doc's opinion, but they often use the phrase "I thoroughly reviewed the Veterans records".  Is that what your VA doc said?  If this is the case, then its possible the VA doc "did a more thorough job" reviewing your records, noting that YOUR private physician noted that the 91, 92, and 93 MRI's were not available.  That (your 91,  92, and 93 MRI's being unavailable) may hurt you, BUT were those records available to your VA doc, and did he review them?     I think you should get your cfile, and see if those old 90's MRI's were in there.    If your VA records were more complete than what was given to your doctor, they may make a case this exam was "more thorough".  In other words, they allege your VA doctor read more of your records than your private doc, and you need to read your cfile to see if that is accurate or not.  I suspect it is not accurate, and you should bring that up on appeal, AS WELL as consider "attacking" your VA medical exam.  You can challenge a c and p exam, you know!   https://cck-law.com/blog/how-to-challenge-va-cp-exam

ONE way to challenge the VA exam, is to look up his or her credentials?  Was your VA examiner Board certified?  Your private doctor was!!  You can argue your private physician was more competent to opine because he was board certified!  Was your examiner an MD?  NP?  You need to find that out as you may want to challenge the competency of the examiner.  Remember, the VA "presumes" the VA c and p examiner is competent, even if his title is "janitor".  

2.  "More convincing rationale".  This is subjective.  They did not say "why" one doc's rationale was more convincing.  

       In summary this is ripe for appeal.  The VA can not substitute their own unsubstantiate opinion for that of a competent medical professional, YET they "decided" Dr. VA was smarter than Doc Private practice.  The va decision maker (not a doctor) decided on "which doctor's reasoning was better", without giving their reasoning, either.    

       You may need still another IMO/IME to win this, BUT, you can certainly compare the VA docs exam with the private docs exam, and records and still argue that the decision maker erred, and give your reasons why.  

        MY ADVICE is to get your cfile, review your records, especially the VA exam, and find out who was the VA examiner.  Was he an MD?  NP?  Was he board certified?  Consider a challenge to that exam.  You need to appeal, and I think you have some great leverage, here.  Remember, the VA is supossed to give you the benefit of the doubt, and they did not say why they did not do that!!!

Edited by broncovet
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By the way FaithisAchoice, with Berta and I both reading your decision and guiding you, the VA doesnt have a chance!   We will win this, provided that you take Berta's and my advice.  

Based on what I have seen so far, you have a highly winnable claim.  You may need another doc opinion, but your exam was not inadequate.  

You may even be able to get those 1990's MRI's and show them to your doctor, and have him rewrite this and include that he reviewed your MRI's as well.  

 

Edited by broncovet
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ALSO:  

You posted:

Quote

The VARO omitted my previous x-rays and mri's that are in my cfile and changed dates on the evidence to reflect a much later date than what was originally received by the VA(not sure if they could do that as well).

Ok, do you mean they did not list those as "evidence" on the evidence page of the decision?  VA decisions usually show the evidence they considered.  You indicated those MRI's are in your cfile, but your doctor did not review them.  You may want to copy those, give em to your doctor and ask him to rewrite his exam "adding" that he located your MRI's and included those in his opinion.  

The VA "changing the dates" is a concern.  Do you mean they changed the dates "received" of your evidence, or they changed the dates of the evidence?  This sounds like the VA is playing hanky panky, and you should call them out on that!!!

 

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I think the decision listed the LOD as Evidence, but did not consider it at all.

If the LOD fully reveals in the in service nexus ( injury etc)-they should have considered it....if it was relevant to your claim.

Once the VA sees a nexus is missing, they often disregard other medical evidence , treatments etc, that occurred post service. That makes sense to me if they do that.

"The medical opinion we received from the VA Medical Center was  more persuasive than your private physician's opinion because it was based on a thorough review of your relevant military and/or personal history and contained a more convincing rationale"

This is often a  generic medical VA statement , in my opinion, but VA examiners can be googled and a strong IMO/IME doctor -with more expertise in the disability field than the VA doctor has ( should not be too hard to find) can overcome a lousy C & P result  if they follow the IIMO/IME criteria here at hadit.

I assume the LOD was not for a medical charge????

But can you redact it and post the LOD here?

CUE

If the VA does list evidence but does not consider it- in the decision  (and this causes many CUEs under 38 CFR 4.6)-

that evidence however must be Probative to the claim and would have manifested a rating at least at 10% SC ,if that  evidence has properly been considered.

I would think even a "0" % SC rating might well garner a CUE basis, in some cases that would fall under 38 CFR 4.6.

A better IMO/IME and buddy statements could hopefully make this claim succeed.

 

 

 

 

 

 

Edited by Berta
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13 hours ago, broncovet said:

1.  "based on a thorough review".  I did not read the VA doc's opinion, but they often use the phrase "I thoroughly reviewed the Veterans records".  Is that what your VA doc said?  If this is the case, then its possible the VA doc "did a more thorough job" reviewing your records, noting that YOUR private physician noted that the 91, 92, and 93 MRI's were not available.  That (your 91,  92, and 93 MRI's being unavailable) may hurt you, BUT were those records available to your VA doc, and did he review them? 

@broncovetActually, I was able to get a copy of the C&P Intestinal Conditions DBQ exam and comments and it doesn't have any box checked that the VES (VA) PA read any files only that it was conducted "in person." I contested this exam and the VA ingored my request for a new C&P exam.

The other C&P Exam DBQ was by QTC(VA) NPR.  She was asking about a condition that I didn't have about my nexk the entire time and took ROM, however.  I brought copies of listing of my MRI's and X-ray from 91,93,96 as well as my private physician IME letter and a few other documents that should have been in my c-file.  The QTC NPR (VA) reviewed all the documents and stated that the VA never sent these over to her and she didn't have them for review from the VA. She  never handed the documents back to me  to me but, kept them all. It was about 5 pages of documents that I gave her. (I contested this C&P exam too because all she wanted to talk about is an erroneous "neck" condition. I said the questionnaire that QTC sent to me was correct for my disabilities in my lower back and intestinal conditions.)

13 hours ago, broncovet said:

VA can not substitute their own unsubstantiate opinion for that of a competent medical professional, YET they "decided" Dr. VA was smarter than Doc Private practice. 

Yes, a QTC RN and VES PA.

My private physician actually examined me, ordered a MRI & CT Scan and reviewed a more thorough record of my military (which as of today consist of approximately 5 pieces of documents) and personal medical history.

Keep in mind that the VA has acknowledged that my military STR's and files are (lost) unavailable. (this is listed in the evidence). I have a sworn statement about my military records that are lost and also that 2 of my earlier private doctor has since passed away and all records were destroyed (Again the VA has documents on all of this and it's in my c-file)

13 hours ago, broncovet said:

VA is supossed to give you the benefit of the doubt, and they did not say why they did not do that!!!

Correct, you are!

I had episodes lasting more than 6 weeks last year and other private physician completed x-rays and DBQ's that the VA has in my c-file but didn't list it in the decision, neither is it listed as evidence.  However, when I called Peggy, she said that it is in my file.

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Challenge the exam again.  VA has a way of losing this key evidence, and disavow ever having received it,  so make sure you document your challenge to the exam.  And appeal, if you have not already.  

In your "challenge" document this is your second challenge to the exam, but VA has never sent you a written notice denying your challenge to the examiner, a violation of 38 CFR 3.103 (read it).  

Edited by broncovet
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13 hours ago, broncovet said:

Berta and I both reading your decision and guiding you, the VA doesnt have a chance!

Thank you, more than you know! I was thinking that I was hitting a brick wall with and decided to reach out instead.

13 hours ago, broncovet said:

even be able to get those 1990's MRI's and show them to your doctor

These are records from the imaging diagnostic location who performed the MRI"s and X-RAYS back then. It list my specific lumbars and spine, my private doctors who ordered them, and the dates they were completed.  However, the diagnosis and actual reports have been destroyed and the doctor is deceased.  My doctor wanted to do back surgery on me at that time from the results of the x-rays and MRIs but, I declined because I thought I was to young for back surgery.

13 hours ago, broncovet said:

do you mean they did not list those as "evidence" on the evidence page of the decision?

That is correct. The evidence listed was from 2009-2010. VA changed the date to make it appear that the evidence was just received in the last few years.

14 hours ago, broncovet said:

VA "changing the dates" is a concern.  Do you mean they changed the dates "received" of your evidence, or they changed the dates of the evidence?

Yes, this is concerning. This is why I have reached out.  I  had to rescind the DAV that was  "helping" with my claim.  Just a few days ago one of the VSO that I reached out to when I noticed that my evidence wasn't listed or consider, stated if the VA had integrity, she would be out of of job (I'm not kidding, this is what she stated). The next day I faxed to Peggy and emailed to the DAV that requested effective immediately that I rescind and revoke the POA with that DAV.  I also US mailed return receipt to Peggy and regular US mailed it to DAV.

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1 hour ago, Berta said:

I think the decision listed the LOD as Evidence, but did not consider it at all.

That is correct. The reveiwer downplayed the line of duty injury that's in my c-file in the March 2020 decision that I listed here.

I resent it with the January 2020 IME and supplemental form from the Jan 2020 decision. (I found out by Peggy that this January 2020 decision was pointing back to a 2016 decision) 

So, as it stands now my 2019 private physician's DBQ'S and X-ray diagnosis reports are in my c-file and the VA hasn't included it in their January 2020 or March 2020 decisions. 

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52 minutes ago, broncovet said:

VA has never sent you a written notice denying your challenge to the examiner, a violation of 38 CFR 3.103 (read it).  

That is correct.  They have only sent the decision in March 2020 from my supplemental form that they received at the end of January 2020 with my LOD(resent) and new and relevant evidence IME from my private physician.

I will read the 38 CFR 3.103

 

How do I apply and let them know about  it once I read it? 

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