Very Sloppy LHI C&P Medical Opinion

[Vync]

For my supplemental heart claim, the VA's RVSR sent a request to LHI to specifically perform a cardiac/heart DBQ and offer an opinion whether SC migraine medication caused any heart condition. An LHI nurse practitioner called me last week to do a phone C&P and asked about atrial fibrillation, my heart attack last year, and the residual impact. They confirmed having received the medical opinion from my non-VA board certified neurologist regarding the heart attack being "more likely than not" caused by my SC migraine medication. Prior to submitting their medical opinion, they said they had to do more research.

This morning, my VSO looked in VBMS and found the LHI medical opinion focused solely on atrial fibrillation, completely failing to opine on the heart attack. Because my claim is still open, an IRIS request was placed asking the VA to send the medical opinion back to LHI due to being inadequate by failing to opine regarding the heart attack.

Fortunately, my claim was still open and the decision letter had not been sent. On va.gov, it still ironically says "We do not know your status", but it has been like that for weeks. I would not be surprised if the RVSR goes ahead and closed my claim based on the sloppy C&P performed by LHI just to get it out of their inbox. If they do that, then I would be forced to send yet another supplemental or HLR to address yet another case of the VA failing to consider evidence and ignoring laws, regulations, internal rules/policies, and it would put my claim back into the 125+ day hopper.

This one should be won via relative equipoise. The VA has a nurse practitioner's "less likely than not opinion" with no medical rationale addressing the merits vs. my board certified non-VA neurologist's "more likely than not" opinion with strong medical rationale. So far, there is no predominate medical evidence against SC, so I am hoping they would at least get this one right at some point.

After thinking about what has happened, I also put in a complaint to the WH VA Hotline. The VAMC C&P contractor I had last year screwed up their exam by failing to consider evidence. The LHI C&P examiner I had last week also screwed the recent exam by failing to consider evidence. It seems like a recurring pattern. If they are doing this to me repeatedly, then they are likely doing this to other veterans.

[GBArmy]

Vync It sounds like they are trying to get you on the hamster wheel again, doesn't it? I like the IRIS question/complaint; save that response whether positive or negative also.Your doc is at least equal to the VA's opinion; eventually, you should win out. It would be nice if you can do it this go round though. One question I have is are both LHI examiners working out of the same office/facility? Not the same doctor both times?If so, maybe that could be part of your appeal if you have to do this again. Question that facilities track record for being incompetent. 

[Vync]

@GBArmy Possibly. I think a lot of it has to do with the lack of accountability. Since 1997, I have experienced C&P exam after C&P exam that was substandard or contained one or more errors. The sad part is it is nearly the same exact errors over and over again.

In this case, I had a local VAMC contractor cardiologist last year perform a heart exam and a Cushing's exam. Of course, they opined less likely than not. The heart exam ignored my request to examine any meds I take for SC disabilities and they instead focused on just one. In effect, they disregarded verbal lay evidence I provided during the exam. The Cushing's exam was a joke. They just looked at my non-VA endocrine specialist's medical opinion that said I had iatrogenic (when taking steroids) Cushing's and the physical symptoms, despite some of my tests being negative. That same VAMC contractor cardiologist instead contested the lab results saying they were normal, but completely disregarded the iatrogenic part and physical symptoms. They didn't even bother to order labs to confirm anything.

This time, the LHI examiner was from Washington D.C. and a completely different person.

I'm hoping I don't have to appeal this. The VA was notified through multiple means prior to completion of the rating decision. I'm hoping that would be sufficient to avoid having to appeal if they screw it up too.

 

 

[Miken2c74]

I had an IMO performed by an Orthopedic Surgeon and a VA exam through VES with a Practioner   who has a practice in

Hypnosis, Homeopathy, Rehabilitation, Natural Medicine, Anti-Aging Medicine, Orthomolecular Medicine. Does it sound like his expertise should outweigh an Orthopedic Surgeon. I don't think so either

[GBArmy]

Mike Some of the stuff that veterans go thru with the VA you read on hear are unreal.  It's more about the process than doing what is right.

[Miken2c74]

Tracking @GBArmy. It is almost unbelievable. It is almost like the process/evidence is to much to read for VA. Its like they read part of it that gives them a feeling and then they apply that to the decision without reading the rest of the story.

[Buck52]

Vync quoted

''This one should be won via relative equipoise.'' (YES)

with a  BOARD CERTIFIED Doc they take his/her word over a N.P Any-day.

you will win this .

personally I hate the LHI EXAMS  /vs QTC, But again in my opinion its the luck of the draw as to what type of examiner we get. ff they can read or not??

They need to fix this as to where we can get it done right the first time and not have to appeal and wait...actually it cost the VA to do it this way ,  when you win it  more retro out of the VA Pockets  but when did the VA ever make any sense.

Those NP THINKS THE VETERAN WILL NOT APPEAL.

Most of the time  this type of exam back-fires on the VA and the veteran gets more than what he was filling for.

hopefully for you Vync it will end that way for ya buddy.

[GBArmy]

2 hours ago, Buck52 said:

Vync quoted

, But again in my opinion its the luck of the draw as to what type of examiner we get. ff they can read or not??

 

I agree with Buck; it isn't so much about the Contractor as it is about what kind of professional you get. Like anything else, you could get a very thorough and fair doc working at a Contractor office that is made up of a bunch of rubber-stamps for rejections. Like he said, its depends on luck. But it also helps if they can READ.

[Vync]

@GBArmy, @Buck52, @Miken2c74, Surprise! Surprise! They denied the claim!

I called Peggy this morning and learned the claim was closed today. I obtained a copy of the decision letter from my VSO. This claim was processed by the St. Petersburg, FL VARO.

Quote

Decision
The previous denial of service connection for atrial fibrillation (now claimed as heart condition) as secondary to tension type headaches is confirmed and continued

 

Quote

You submitted private treatment records and a medical opinion from Dr. {redacted}. However, the medical opinion we received from the VA examination 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 more convincing rationale (38 CFR 4.6).

During your VA examination conducted on July 20, 2020, your examiner determined the claimed condition is less likely than not (less than 50 percent probability) proximately due to due to or the result of Veteran's service connected condition. Your examiner stated: "The conditions of atrial fibrillation and tension type headaches are not medically related. Atrial fibrillation is a separate entity entirely from the tension headaches and are not medically related. The veteran was diagnosed with atrial fibrillation in 2006, documented in his claims file. He first was prescribed Sumatriptan for his headaches in 2014, 8 years after the onset of atrial fibrillation. Therefore, it is less likely than not that his atrial fibrillation was caused by the medication prescribed for his headaches. Furthermore, no evidence was found in the medical literature that tension headaches or Sumatriptan cause atrial fibrillation. According to the Mayo Clinic, the following are causes for atrial fibrillation: high blood pressure, heart attack, coronary artery disease, abnormal heart valves, heart defects you were born with (congenital), an overactive thyroid gland or other metabolic imbalance, exposure to stimulants, such as medications, caffeine, tobacco or alcohol, sick sinus syndrome - improper functioning of the heart's natural pacemaker, lung diseases, previous heart surgery, viral infections, stress due to surgery, pneumonia or other illnesses, or sleep apnea. Neither tension headache nor the administration of Sumatriptan have been shown to cause atrial fibrillation. Therefore, a nexus has not been established.

 

My neuro IMO/nexus states the Sumatriptan (migraine med) more likely than not caused the "myocardial infarction". It does not mention "atrial fibrillation" at all.

The VA quoted 4.6 regarding weighing each medical opinion, but did the exact opposite of what is required under 4.6.

Benefit of the doubt was not considered 3.102 (Gilbert v. Derwinski, 1990).

Per Alemany v. Brown (1996) "The preponderance of the evidence must be against the claim for benefits to be denied". The VA denied by ignoring favorable evidence (IMO/nexus).

 

Yesterday, I called 1-800-827-1000 and a call center agent sent a separate internal request yesterday telling them not to finalize the decision due to errors made by the examiner.

Yesterday, I submitted an IRIS notifying the VA about the NP's opinion being incomplete and inaccurate due to focusing only on Afib and failing to opine on the heart attack.

 

My VSO said that because the supplemental was officially closed today, they expect the VA to do nothing other than tell me to submit an HLR. That means 4+ more months of waiting for a claim that I initially submitted more than a year ago.

When the VA Secretary eliminated the 48 hour VSO review window, he effectively prevented my VSO from being able to force the VA to rework it properly.

 

@Berta indicated getting very fast responses to CUE's sent right after decisions were made. Should I file CUE?

Should I file HLR?

Should I get my Congressional representative involved?

Would the VA OIG be able to assist?

Edited July 28, 2020 by Vync (see edit history)

[GBArmy]

Vync you said "surprise" but I think you aren't. Disappointed in the VA process (so far) is probably more accurate. Congressman is out; too complicated for them to get involved. OIG doesn't seem to be an appropriate resource for this type of a problem for that office. HLR is an option, especially as a holding option if you were to want to do more developing which would include an additional IMO from a specialist to support what you already have. The problem is for that HLR to be effective and change the decision, I think you would have to be awfully lucky to get a reviewer that is sharp enough, and willing enough, to reject a favorable VA decision that he could easily side with and rubber-stamp off, rather than CUE themselves. There are several people on here that are well versed on CUE claims, so I will not comment on that option. So, of the remaining 3, I would recommend HLR if you didn't want to go the CUE route. I'd try to get input from Bronc and Berta first though IMHO. All that said, it sucks. But then, where would be the challenge if it were easy

[Vync]

@GBArmy you are correct! I am definitely not surprised. I was just envisioning Gomer Pyle saying, "Surprise! Surprise! Surprise!" laughing while processing my VA claim denial. When the NP asked me about Afib instead of heart attack, my radar went active and I knew that this was probably not going to end correctly on the first try.

My Congressman's office offered to look into it if I signed a release, but I think they are interested in being able to use me as a statistic to get the 48 hour VSO review window reinstated into effect via legislation. I honestly am considering lighting the proverbial fire from all angles on this one. House rep, Senator, even the dog catcher...

I'm 100% P&T, but I need a new SC disability in order to open up the option to purchase S-DVI life insurance. If I win, then FTCA is also a possibility as long as I get it submitted before the two year anniversary of my heart attack. I expect the VA to come up with some lame excuse to deny it, but I presume it would be tougher to deny it if I am already SC. My heart attack was preventable. The VA knew I had developed risk factors, failed to counsel me of the risks of continuing to take the migraine med, and failed to do the recommended screenings recommended by the drug manufacturer.

HLR is a plausible option because this is a clear case of the VA ignoring favorable evidence. The VA did include my neuro IMO on the evidence list. The NP's DBQ did have the myocardial infarction (heart attack) box checked, but the medical opinion completely failed to address anything related to the favorable medical opinion regarding the heart attack. This should have been a simple case of the NP doing a current assessment of my limitations and simply opining if they agree or disagree with my neuro IMO and why. I can envision filing a HLR and it finally being processed year from now after I had another heart attack and died. That seems to be what the VA wants.

I forgot about asking the VA to CUE themselves. With the AMA changes, I wonder if that even possible any more?

 

[kanewnut]

Read in here about the binding decision. It also talks about the CUE. 

M21-1, Part III, Subpart iv, Chapter 2, Section B - Revision of Decisions

I think you can tell them to CUE themselves.

I am trying to light all the fires for my case. 

[GBArmy]

Vync From my perspective, HLR can and should be a good option. At least in theory. But just as we say that it is the luck of the draw when it comes to getting a competent and open minded C&P examiner, it holds true for HLR as well. There is one significant change when you chose that lane; you can specify that you don't want to use the same RO that the initial decision was made. I think that is an improvement for three reasons: first, it takes any internal pressure off the new reviewer concerning making a decision against someone from the same office who he may know. That's not supposed to be a factor, but who knows. Secondly, it goes into a national queue, which also provides the possibility of it being worked on sooner rather than later. I believe that is the reality now. And thirdly, although we can't submit new evidence, you also can chose the option of talking to the reviewer. You can make it very plain how this is a RailRoad job. As to the question whether or not they could CUE themselves, the answer is yes. I have an open HLR for GERD, and on the open claim status, in the What Happens next? status, it reads "The VBA will send you a new decision in the mail. Your review may take longer if the VA needs to obtain records or schedule a new exam to correct an error. Now they don't use the term CUE, but that's what an error is.

[GBArmy]

Vync As for receiving a new disability so you can op for the VA insurance by opening up the window to apply, you might consider other options as a intermediate step before your next approval. There are a few other choices for insurance, if you want to get coverage now. The American Legion has a connection with United of Omaha Life Ins. Co., www.mutualdirect-legion.com, or 1-800-867-2953. Their quote chart in the advertisement is very competitive with the VA's disability rates. Now I realize that being at 100%, it cost $ when you could be getting it for free. But if you are concerned about another heart attack before you can sign up with the VA's, you might want to consider. Just bringing up an option to consider.

[Vync]

@kanewnut, I'll have to re-read that section. I haven't filed a CUE since September 2019 or HLR since earlier this year.

 

@Buck52, I am pondering writing my response in crayon. The supplemental was written at 8th grade reading level, which might have been over their reading level. Yep, there is no excuse for not getting this done right the first time. My IMO was only one page in length.
  I called LHI and talked with a couple of people over there. I asked how this kind of mistake could make it past their quality review. I learned that they pretty much don't have a quality review. LHI gets exam requests from the VA and they just facilitate scheduling with their contracted examiners. They pass the request to the examiner who completes it and they pass it back to the VA. There is no mechanism for them to look at anything again unless the request comes directly from the VARO. In effect, LHI is just a middle man. On the bright side, LHI did FedEx me a letter telling me about the examiner. It includes their name, specialties, license number (and state), which I will not post publicly. But I will post these parts publicly so others can get an idea of what to expect:

Quote

Years of medical experience: 12
Years of VA experience with LHI: 4
Examiner training certifications: DMA General Certification, DMA MST and the Disability Examination Process, Gulf War Examination (GWE) Training, DMA Aggravation Opinions, DMA Medical Opinions, DMA Musculoskeletal Examination
Board Certification (when applicable): (none listed)

Service requested (Quantity):
DBQ CARDIO Heart (1), DBQ Medical Opinion - MED: CARDIO Heart (1), Acceptable Clinical Evidence (ACE) examination - Medical (1)

On the bright side, that is a hell of a lot more info than I ever received from the VAMC C&P docs. I had a couple of in-house exams where the letter said it was for one issue, but turned out to be for something completely different (bait and switch). It would have been nice if the LHI examiner at least had some sort of cardiology and neurology training certifications. Had they done their job properly, any examiner would not have missed the target so badly. 
  The LHI call center supervisor did say they would pass my concern over to the account manager, but was not certain if that would potentially change anything. At minimum, I hope this could raise the examiner's awareness that they hosed it up.
 

@GBArmy Yeah, I know about requesting a different VARO (i.e. de novo review) because I have done that before. I am not concerned with taking the pressure off employees who work in the same VARO. If they are actually being called out on errors like this, the pressure would perhaps educate them so they don't make the same mistake twice. They need these kind of errors to be called out at a high level so they can't just fix one claim and sweep the error under the rug.
  I do like the idea of the national work queue vs. the old regional system. We are led to believe everyone is working with the same set of rules and work standards. Before the AMA, I would get calls from the VARO's quality review team to go over the claims before they were finalized. Given what happened on this claim, I wonder if the VA did away with that team completely.
  I know that the HLR cannot include new evidence, but they had all the evidence to process this claim correctly from the beginning. After filing the CUE last year, the VARO working it wasted six weeks requesting copies of medical records from my VAMC. Here's the catch. That request was for the period between 1995 and 2000, but their request was for all records from 2000 to 2019.  I kept telling them repeatedly that the relevant records were already present in my claim file because that's where I got them. After six weeks and a couple of calls to the WH VA Hotline, they finally realized that the request was made in error.
  I talked to a couple of insurance companies. They quoted me about $100/month for a no medical exam Gerber policy for $10,000. I really appreciate the info about the company you provided. Do you know if it is exclusive for members of the American Legion? I was thinking about just filing an application for S-DVI with the VA anyway and getting a quick rubber stamp denial. Once I get the new SC disability, then they can just retroactively approve it in case I am not knocking around any longer.

[Buck52]

Vync

I would request another exam on this with a different examiner because this examiner fail to read all your evidence which results in a denial.(Inadequate)

You might want to call the C&P Chief at your VAMC or R.O. and request a new exam  I am not sure as to why this LHI Examiner never read all your evidence or even got to that part....this is an inadequate exam.

those can be rescheduled  show the C&P CHIEF YOUR REASON THEY DENIED YOU and he should set up another C&P.

.HOWEVER BEING THIS IS OFFICIALLY DENIED YOU MAY HAVE TO GO THROUGH THE NOD rout  which has GB  Army mention  that would be the HLR

Yeah  below  in paragraph it seems its always  this way with any outside contractor QTC is the same  but fortunate for me QTC examiners have always be pretty fair to me.

''They pass the request to the examiner who completes it and they pass it back to the VA. There is no mechanism for them to look at anything again unless the request comes directly from the VARO.'' 

[Vync]

@Buck52 It may be worth a few minutes to call my VAMC's C&P clinic and ask. Given the circumstances, they will likely say they can't do anything because it was closed.

[GBArmy]

Vync I'm not sure about the client has to be a American Legion member, but it was implied. Give them a call. For what it's worth, annual dues is $35.00. I don't use them at all, but the main reason I joined up is a good friend was made the commander of the post, and I just wanted to help his membership numbers. Actually, any of these VSO groups don't do enough for Veterans IMHO so I don't have much use for them. They are ok if you need a VSO to help for paperwork and VBMS but from my experience, they usually are under trained , overworked or lazy. They could spend more of their millions on more and better trained VSO's.

[Berta]

I would go with the HLR option, if I were you-Vync and Kanenut posted the entire M21-1MR regulation here on that.

If the HLR does not pick up a CUE , then you can file a 38 CFR 4.6 CUE immediately.

I wish I saw this sooner in the week- I spent many hours researching ,off the board for two members here recently- before giving them an adequate reply- and so far they have not returned. 

If the VA has probative evidence and they choose to ignore it ( the cause of every denial I have ever received)

they have committed a bonafide CUE.

The HRL regulations were changed by Secretary Shinseki due to a letter I had written to him-I have seen the HRLs in action here, by finding CUE, prior to the final decision.

Former Sec. Shulkin's office called me to tell me my suggestions ( there was another one regarding NOD deadlines,) had been incorporated into the AMA.

I gave the Secretary  personal evidence and comments as an advocate in regards to other claimants similarly situated as well, that  VA  could and should seek CUE in every decision before the veteran gets it and might be on the Appeal Hamster wheel for years, adding to th backlog of appeals. I gave him evidence of my CUEs awarded in mere weeks, during the appeal process, no need for a NOD ,and evidence of my SMC CUE that sat at my VARO for over 7 years before it was set for transfer to the BVA- but the Nehmer RO, per my request to them for my AO IHD claim, considered the SMC  CUE I had pending prior to  Nehmer- AO IHD court order ,and  awarded that CUE in a heartbeat.

The other CUE I consider as an open issue, from 2004 , that my current CUE issues will consider.

I will try to find Kanenut's post or the actual M211MR link and post it here.

 

[Berta]

This shows the change to M21-1MR re:  CUE in action:

 

https://community.hadit.com/topic/78007-supplemental-claim-approved-hlr-for-effective-date/page/6/#comment-493502

A few other vets here have had the HRL find CUE prior to their decisions being finalized.

The M21-1MR info from Kanenut, re: the change regarding CUE, is here:

https://community.hadit.com/topic/78864-cue-and-bva-2020/page/6/

I think it is on Page 2. 

[Vync]

@Berta Thank you very much for reviewing this. I will start working on the HLR.

It stinks having to wait four to six more months despite the VA being notified about the problem before the decision was made. I wish there was some recourse to reopen/kick it back to the adjudicator without having to wait, such as the old reconsideration option that is no longer available. I used it frequently and got fast results almost every time.