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]

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

[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.