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]

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 March 15, 2020 by broncovet

[broncovet]

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!!!

 

[Berta]

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 March 15, 2020 by Berta

[FaithIsAChoice]

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.

[broncovet]

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 March 15, 2020 by broncovet

[FaithIsAChoice]

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.