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!

[FaithIsAChoice]

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. 

[FaithIsAChoice]

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? 

Edited March 15, 2020 by FaithIsAChoice

[broncovet]

You posted:

Quote

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.

This "might" not be bad news, it could also be good news!!  Reason:  38 CFR 3.156 b   (read it, I will assume you can find it) This "reopens" the claim with new and relevant evidence.  If your claim (or appeal) is pending, then the effective date should go back to when you first applied.  

In fact, try that.  Try reopening the claim due to New and relevant evidence (38 cfr 3.156)  and assume the VA did, as you suggested:  They NOW have new and relevant evidence.  

Now, the VA has a quagmire:  If they admit they have that evidence, well, why did they not reopen it or consider it when the decision was made, since you posted they did not consider evidence prior to 2009.  

      I think this may well be a good time to get a different VSO...ONE WHO HAS VBMS ACCESS.  Many do have VBMS access, some do not.  Understand what VBMS is.  Its an electronic record of your cfile.  Poof:  You can view it immediately, or your VSO can.   You can not get VBMS access as a Pro Se claimant, currently.  Only attorneys, non attorney practioners, and VSO''s who have jumped through VA hoops have VBMS access.  This is the reason you need a VSO.  You dont have to take all his advice.  But you can ask to see your records, and he may show them to you, to see if those 1990's  mri's are there.

     This renders VA's reasons and bases for denial to be non sequitir:   They alleged your exam was incomplete because the doctor did not view the 1990's records, while the VA examiner didnt have them either, so they chose the VA exam to be "more thorough"?   In other words it does not make sense for them to criticize your doctors IME, when the VA examiner did the same thing, but did not report it!!  Your doctor's exam reported that he did not have those records, the VA examiner didnt have them either, but the VA exam did not disclose those records were not available.

   

[FaithIsAChoice]

5 minutes ago, broncovet said:

VA exam did not disclose those records were not available.

Correct!

[FaithIsAChoice]

6 minutes ago, broncovet said:

he may show them to you, to see if those 1990's  mri's are there.

This is confirmed the VA does have them. Just not listed as evidence.

I could just resend the 90's document as well, like I resent the Line of Duty that was already in their possession.

[broncovet]

Get a copy for YOU!  You may be able to get these at your nearby VAMC.  They probably wont have the MRI pictures, but some doctor interprets those and gives his "impression", which is what you need anyway.  (BVA judges can not interpret MRI's)

In your appeal, note the date discrepency with the "evidence".  This suggests the decision maker "did not have the 1990's MRI evidence", so VA should reopen.  

Now, under Bell Derwinski, the VA may have constructive receipt of that evidence.  https://www.ravellaw.com/opinions/5baa20a9abf7cf6127997afcd4ef5dd9  

Yes, and resend the evidence asking them to reopen your claim due to New and relevant evidence under 38CFR 3.156

Now, I left the letter off of that regulation on purpose.  3.156 C is for new service records and 3.156 b is for pending claims.  Yours is a pending claim, I think, but it could also have to do with new service records, as I dont know when you got out of service.  The effective dates for service records and regular evidence are treated differently, but that may not matter to you..or it might.  It depends on the way stuff goes in the future.  

It sounds like you posted this doctor passed, so you may need a new IMO/IME to win this.  You can try it without it, because IMO's and IME's are often expensive.  For me, "in the end" the IMO won it.  I dont know if it would have won it sooner had I got the IMO sooner.