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CUE (NO WAY!)

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FaithIsAChoice

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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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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