CUE (NO WAY!)

[FaithIsAChoice]

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!

[broncovet]

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 March 13, 2020 by broncovet

[GBArmy]

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.

[Berta]

 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 March 13, 2020 by Berta

[broncovet]

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 March 13, 2020 by broncovet

[Berta]

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

it is on page 6 of that thread.

 

Edited March 13, 2020 by Berta
in cloud

[awgv001]

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).