HLR or Board

[SPO]

This might get a little long winded but please stick with me.  I just had my supplemental claim for arthritis closed.  I was awarded 2 out of about 15 affected joints, and suprise, suprise it seems that the reason the others were denied was because of the C&P examiner not doing a thorough exam and incorrect reporting on the paperwork.  The reason for denial on all of them was no diagnosis.  Now the problem with this was that she was provided with a letter and medical records from my rhuematologist (an M.D.) stating specifically which joints are diagnosed and affected, and the letter is  from May 2020, so it is current information (she is a nurse practitioner, and best I can tell specializing in family medicine).  She decided she didn't believe me when I told her joints hurt during the exam so basically said nothing was wrong, thus no diagnosis.  In particular I know she lied about the range of motion of my shoulders.  I have a difficult time getting to 90 degrees on either arm, but her range of motion says 120 degrees.  she did actually measure this, but I know where my arms were and it was less than 90.  She did measure my back (which was approved) but nothing else.  She didn't even actually examine my hands or feet.  She "examined my elbows and knee from across the room.  Also, she stated I have no flare ups, but I know for a fact the QTC questionairre I submitted to her stated that I do, as well as my statement I filed with the claim to the VA.

I called DAV as soon as I left the exam and asked them what to do and they said, just wait for the exams to come in and see what they say.  When the exams came in I couldn't get anyone at DAV to actually look through them all, so they said just wait for the decision.  I finally got someone to look through a few of them (after the decision was made) and from what the DAV is telling me, many of the joints don't look like the reach the compensable level based on her C&P. 

Now I am at a crossroads.  I can either Higher level review and see if maybe they will give me 0% service connection because my doc's diagnosis should outweigh her 10 minute "exam"(maybe a couple 10% ratings if I'm lucky), or get in line at the the BVA.  I'm not sure what to do next and I've heard advice to go both ways from the DAV.  They say I can't fight the bad C&P through HLR.  Any thoughts or advice?

[broncovet]

It sounds like you have a copy of your medical records.  You need to check your medical records to see "if there is a diagnosis" for the conditions you claimed in your medical records.  

If (the diagnosis) IS there, but VA didnt read your evidence, you could try either a SCL or Board appeal.  However, you are almost certainly going to need additional evidence so dont do a HLR because those dont allow new evidence.  

I like the Board appeal..you have already been denied by the VARO.  

The SCL may be faster but it can also be a waste of time, since you may have to appeal the SCL to the Board anyway.  

As always, make sure you have the Caluza elements documented to win your claim.  

[SPO]

I am 100% sure the diagnosis is in there from my doctor.  DAV double checked It was in my file and said it was listed on evidence used.  

I don’t know what additional evidence I could give.  

Edit:  After another conversation with DAV, I've decided to just go ahead and appeal to the board.  According to DAV even if I have the diagnosis in my file from my doctor the VARO is just going to say its older than my C&P exam.  Its wasting time that I could be in line for the board.  The last question is whether to ask for a hearing or just a review.

 

 

Edited August 5, 2020 by SPO (see edit history)

[Fat]

I generally am not in favor of filing for 15 items at once, unless you have medical diagnosis and the medical literature that supports the direct or secondary service connection requirement. 

BroncoVet gave good information I can support.

You are suffering, but a a good claim is all about medical diagnosis and reasonable medical causation.

Take your time, continue the appeal, and make sure every issue has the diagnosis and nexus for service connection.

.........

[SPO]

After multiple discussions with the DAV I have decided to file for an appeal to the BVA with a hearing.  Has anyone had experience on what the wait time for a hearing is with the new Modernization Act.  I know the legacy ones could take many years.  Just curiosity.  

As I gather more evidence for my appeal, would it be advisable to try to get a VA doctor to weigh in for my favor.  I usually use private doctors, but I am nervous to go to the VA because any potentially negative information is then available to the VA.  I've had enough bad C&P exams to know that the VA doesn't always believe us.  Would their word carry more weight and would it be worth the risk?

[Berta]

SPO stated:

  "The reason for denial on all of them was no diagnosis.  Now the problem with this was that she was provided with a letter and medical records from my rhuematologist (an M.D.) stating specifically which joints are diagnosed and affected, and the letter is  from May 2020, so it is current information (she is a nurse practitioner, and best I can tell specializing in family medicine"

Did the VA acknowledge this letter in the Evidence list and decision for denial?

If they had it but completely ignored it that i a CUE under 38 CFR 4..6. A Rhuematologist's diagnosis and medical rationale  ,in my opinion for this type of claim , should outweigh a NP opinion.

If it is a CUE, the HLR might catch it- they have been doing a good job of catchng CUEs here for some members- before the final decision . You could file a CUE yourself ,as well.

An HRL review might take months and correct the CUE, but a BVA decision might take years, particularly if BVA decides to remand the claim.

 

 

Edited August 7, 2020 by Berta
spelling (see edit history)

[Berta]

Have you complained to LHI, QTC, or VES,, or whoever the NP works for , about the C & P exam?

[SPO]

The letter and medical record from my doctor were on the list of evidence used.  
as far as the exam, I contacted DAV as soon as I left and they advised to just let the VA make a decision, there wasn’t anything I could do about it. I didn’t contact anyone and I assume it’s far to late now

[Berta]

Have you posted the  redacted decision here anywhere?

 

Quite a few vets here have complained to the outfits who provide these C & P examiners, and some have called the White House hot line ,1-855-948 2311 about lousy C & P exams.

Sometimes they get a different C & P examiner ,if they complain, and sometimes they realize they have to pay a real  doctor for a strong IMO/IME.

 

 

 

 

 

Edited August 7, 2020 by Berta (see edit history)

[SPO]

would calling the white house hotline be a lost cause at this point?  The VA already issued a decision.

I will post a copy of the decision as soon as I can

Edited August 7, 2020 by SPO (see edit history)

[Miken2c74]

Hey, don't let anyone say you can't challenge exam on your own, I did and won. Complain to the contractor and then make a IRIS complaint to cover yourself. Then sit down and write a letter (Word) Your name at the top and your file number and the Greeting Veterans Affairs Representative and so on and so on. When you finish the letter proof read it so it flows and then when iots finished sign and date it and submit to VA through your VSO.

[Berta]

You bet, and Congrats on your success Miken!!!!!

After my husband died I had to challenge every single posthumous C & P exam he got.

And I challenged a C & P exam  that one of my claims was remanded for., by the BVA.*

The last C & P exam they did was a few years ago and the examiner said it was an "inperson" exam.

I raised hell on that , as my husband had been dead by then for more than 20 years.

Whatever claim that was, I won on a CUE, three weeks after their ridiculous denial.

I think it was my HBP 1151 claim.

* Dont forget, if you have a BVA case, you can send the BVA additional evidence when you get a docket #.

I sent my rebuttal to the lousy C & P exam to the BVA.

BVA remanded for an additional VA opinion, from a cardio doctor I had 3 IMOs for the claim and they had two against.

I got a PA opinion. That is a far cry from a real cardio opinion.

BVA agreed that it was too speculative and awarded my claim.

Just to add here- when a veteran is dead, they cannot speak for themselves.

Their survivors can speak for them, with evidence.

You would be surprised how the VA handles some survivor claims they get.

And how some VSOs and vet reps handle them. 

 

 

 

 

 

 

 

 

 

 

Edited August 8, 2020 by Berta (see edit history)

[Miken2c74]

Thanks @Berta

[Berta]

Thank YOU for being here !!!!!

Your posts are inspiring!!!!!!

Regarding SPO, we really don't have the redacted decision yet and that makes it difficult to know why they did not  give the Rheumatologi'st's letter enough  value- to weigh it for Benefit of Doubt.

And his letter , redacted and attached here, with the decision,  would help.

I had a local vet's private Endo doctor got angry with me, because his initial IME for the vet was not in compliance with a proper IME. He is a very well know endocrinologist here in NY but the VARO in Buffalo didn't know who he was.

He was even ticked off because I gave the vet his Health Grades reports, to support his credentials.

I had prepared a full lay medical opinion as to the veteran's nexus with specifics entries in his SMRs.

The IME Doctor just had to review my work and support it.Up to that time the vet had been in the system for almost 10 years or more, and had been denied twice at the CAVC.

No one, not his vet reps, nor even his CAVC lawyers , had ever even read his SMRs, or his BVA decision.The SMRs were from the 1960s and it took me  lot of time to decipher them, all handwritten.

The veteran won his claim, when they got the properly written IME, and his doctor's superb qualifications. The VA held back thouands in cash for his legal fees but I rebutted that with a letter stating what his lawyers had failed to do, and what I had done.

 I never heard back from the vet ( Thank God ! ..... he was Miserable to deal with) so I assume the VA did not pay his lawyers and they sent him the withheld amount..

 

 

 

 

Edited August 8, 2020 by Berta
spelling (see edit history)

[SPO]

It sound a like DAV gave me bad advice.  Should I start fighting the bad c&p now or wait to do it when it’s my turn at the board?

[SPO]

Anyone, know if  I should complain about the bad c&P now?  I sent in my appeal paperwork last week, don't know if I should just wait until I get my hearing.

[Berta]

A bad C & P can follow a veteran for years and years. And even follow their survivor in a posthumous exam

My husband got lousy C & P exams, after he died and I complained aggressively about All of them- 

I only needed IMOs for one decision, 9 years after his death in a re open of my DIC from 1151 death to direct service connected death.

Prior to that , for example, one C % P doctor opined his death could have been from cocaine.I called the doctor up and rauised hell only to find out the VA had withheld from him the veteran's autopsy.

My husband didnt even drink and only had VA meds in his system at death.

Was I going to accept that lousy C & P ? NO WAY.

I reported this to the VARO Director's office .

I am not a lawyer but have been successful in pro se legal stuff so I did what a good lawyer would do and I asked a question that no one ever asked the VA Director's office in Buffalo before.

The answer was so alarming I called my Congressman, and he order them to get rid of the liquid cocaine in their vault at the local VAMC.

A few years later I had another conversation with this same C & P doctor. I asked him if he was going to do the next posthumous C & P exam for my husband.We had made up- the C & P was not his fault and he knew it.

He reminded me that I had knocked down his opinions twice already so he didn't expect to be asked again. He asked what the claim was for , and told me, that sounds like a very probative claim. By then my so called vet reps told me they didnt think it had a chance.Negativity inspires me. I won that claim too.

It is up to you what to do and we have not seen the decision or the IMO here, so maybe it will need to go to the BVA.

It is difficult to opine on something when we don't really have the documented facts.

 

 

 

 

 

 

Edited August 10, 2020 by Berta
added more (see edit history)

[SPO]

Still working on getting my decision scanned.  As part of my rebuttal in the appeal I was considering submitting the QTC questionnaires that I provided the examiner (she stated that I did not report flare ups) even though I did in their questionnaire.  These are not signed with the date, but the file has not been altered since it was created the day before the day of my exam and you can creation date,  is this valid information at all?

Edited August 12, 2020 by SPO (see edit history)

[SPO]

finally got a copy of my decision scanned and I apologize, its a pretty long one.  There are a few items I noticed that are troubling.

1. In the decision on pages 1 and 2, my hip is granted for adduction 10%, flexion 0%, and extension 0%,.  However on page the list and addition rating for rotation at 10% which is not included in page 1 and 2.  My ebenefits disability list does not include this either.

2. My left and right shoulders and left ankle were diagnosed with a chronic strain by the c&p doc.  What grounds does she have to outweigh my docs diagnosis of psoriatic arthritis, especially when evidence of an issue was found in the exam.  Also considering they accepted the diagnosis and nexus of my back and hip.

3. I submitted more than one statement, only one appears to be listed on the evidence, not sure if this is just how it would normally show.  My doctors letter doesn't actually show as a separate item, but the letter was dated may 11, and they listed records through may 11.

 

DEPARTMENT OF VETERANS AFFAIRS_Redacted.pdf Serafi letter_Redacted.pdf

Edited August 14, 2020 by SPO (see edit history)

[Berta]

." My left and right shoulders and left ankle were diagnosed with a chronic strain by the c&p doc.  What grounds does she have to outweigh my docs diagnosis of psoriatic arthritis, especially when evidence of an issue was found in the exam.

That diagnosis appears to be in the Doctor's IME but his IME does not conform to the IMO/IME format that is in our IMO/IME forum.

The IMO/IME is lacking in a medical rationale , supported by abstracts or treatises, that the right and left shoulder psoriatic arthritis  is due to the service connected  psoriatic arthritis.

It is possible that they did not consider the IMO, as it is not specifically listed on the evidence list, but then again, 

it was not prepared in the IMO.IME,  format which the VA is familiar with.

Can you scan and attach here a redacted copy of the C & P exam they used for this decision?

 

 

 

 

[SPO]

I don’t have to c&p’s yet.  I requested them and according to the va they should be on the way

can you point me to the format for the letter.  It was like pulling teeth to get that one (which was a format DAV gave me).  I tired to get him to give a better rationale it’s supporting literature but he acted like I was trying to pull a scam asking him to rewrite. He just couldn’t wrap his head around the whole va process and requirements.

Edited August 14, 2020 by SPO (see edit history)