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PLEASE ADVISE AS TO HOW RESTRICTED CLAIMS FILES ARE

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Otrgypsy

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My C&P report was so F'd up that the doc has disciplinary exposure with the State medical Board and even a civil action. I am offering her a chance to avoid any complaints. I want to honestly tell her how hard it is for anyone not working on my claim to access the claim file. Please advise.

I would like to be able to tell her that there is a snowball's chance in hell that anyone (particularly her supervisors) on the West Coast will find out she has owned up to and corrected her errors. Is this true? Citations to controlling regs would be great.

Thank you.

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  • HadIt.com Elder

https://www.va.gov/FOIA/docs/Updated_Documents/Sample_FOIA_Request.pdf

i Would send a request for my C-File at my R.O. AND ONE TO THE INTAKE CENTER

Requestors should mail or fax their FOIA requests to the Intake Center in Janesville, Wisconsin, Department of Veterans Affairs - Claims Intake Center, P.O. Box 4444 Janesville, WI 53547-4444, Fax: 844-531-7818 or DID: 608-373-6690

If you seek other benefits records maintained by VA, to include Vocational Rehabilitation & Employment, Insurance, Loan Guaranty or Education Service, you must submit these records to the FOIA Officer at the VA Regional Office serving the individual's jurisdiction, or to the FOIA Officer of the VBA, VA Central Office.

Here is a PDF Link to the FOIA Form

https://www.vba.va.gov/pubs/forms/VBA-20-10206-ARE.pdf

DO NOT FOR GET TO DATE IT AND SIGN IT.

 

 

Edited by Buck52
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  • Moderator

I agree with Buck.  A c and p exam is "a doctor's opinion" on your condition. He is not treating you, and he wont be sued for malpractice because he has a different opinion on your condition than his peers.  All doctors have difference of opinions. 

If you dispute information contained in your c and p exam, my advice is to do the following:

1.  Ask for the records in question to be amended (changed), by following this regulation to the letter:

https://www.law.cornell.edu/cfr/text/38/1.579

2.  If the competency of the examiner is in dispute, then dispute his/her competency as explained here:

https://cck-law.com/blog/how-to-challenge-va-cp-exam/

3.  If the above fails, then you can refute an unfavorable exam with a favorable exam, by hiring an IMO/IME to refute the exam.  

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You have three separate topics her and it is confusing me-

I assume this is your remand:

https://www.va.gov/vetapp18/files11/18148874.txt

Have you had those C & P s yet, that the remand calls for?

Have any of them- and particularly the one for the main issue-the brain injury due to proven toxin exposure,already been done?

Or is it that you expect another crappy exam for that issue?

You do have a good claim,but like many of us you have gotten lousy C & P exams,which many of us have overcome with medical evidence, that most often warrants a strong IMO/IME hat will knock down the C & P results with a full medical rationale.

I hope other will take the time to read the Remand.

You said:

"My C&P report was so F'd up that the doc has disciplinary exposure with the State medical Board and even a civil action."

If you mean the older C & P exam, documented proof of that would help challenge any new C & P exam that also might be  " f'd "up.

You had two strong IMO/IMEs in the BVA decision----TDIU also depends on the remand .

Would Dr. "P.L." be willing to do an additional opinion that covers the remand questions that the VA examiner will have to answer?

(a) For each currently diagnosed neurological, state whether the disability clearly and unmistakably existed prior to the Veteran’s active service. In responding to this question, the examiner is advised that “clear and unmistakable” means that the conclusion is undebatable, unconditional, and unqualified, and cannot be misinterpreted or misunderstood.

(b) For any currently diagnosed neurological disability that DID clearly and unmistakably exist prior to service, the examiner should provide an opinion as to whether that disability was clearly and unmistakably NOT aggravated by service. The examiner should comment on the Veteran’s pre-service history of a head injury and multiple grand mal seizures as well as his post-service concussions. Additionally, the examiner should specifically address the Veteran’s conceded exposure to toxic jet fuel, chemicals, paint fumes, and assorted solvents during service; service personnel records regarding the Veteran’s character of discharge; and the Veteran’s history of alcohol use.

(c) For any currently diagnosed neurological disability that did NOT clearly and unmistakably exist prior to service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that such condition is etiologically related to the Veteran’s active service. The examiner should specifically address the Veteran’s post-service concussions, prolonged exposure to toxic jet fuel, chemicals, and assorted solvents during service, and service personnel records regarding the Veteran’s character of discharge. The examiner should consider the relevant STRs discussed above, the conflicting opinions of record, and any medical articles submitted by the Veteran. The examiner should consider that the Veteran’s lay assertions alone are not a sufficient basis to determine that he clearly and unmistakably had a neurological disability that pre-existed entrance to active service. Further, the lack of medical treatment or diagnosis of a neurological disability during service alone is not a sufficient basis to determine that a neurological disability was clearly and unmistakably not aggravated during active service. The rationale for all opinions expressed must be provided."

 

 

 

 

 

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  • HadIt.com Elder

I was a little bit confused too Ms Berta

Maybe he means how restricted our files are to look at  via VBMS?

I know it takes the higher ups at the VA VSO's VSR's and a VA Approved Attorney's and Certified Accredited VA Claims Agent's to have access or security clearance to be able to get into the VBMS.  IF so then I'd say its pretty well restricted.

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  • HadIt.com Elder

I remember one time they (VSR) Veterans Service Represented (Rater) was confuse on one of my hearing test  the private audiologist put up on her rating charts as to the degree how bad my hearing loss was, after 3 months  she called this audiologist and ask about the Numbers on the chart /graft and ask if that was Certain Number on my hearing loss chart,? So the audiologist went pulled her records and found the number this VSR was needing to know...it worked out for me  .....I had ask this Audiologist Specialist at the time of my testing if she would include her name office phone Number  in her report  she mention it in her report , if you have any questions or concern's please call me at my office  at ***-***-****

I read this information in my C-file....some 17 years later

so that help my claim get approved.  3 months was not bad.  but  my appeals was  from 1998  to 2003  I was so glad and happy it was all over. what a Relief.

Thanks to You and Flip Hilgic (aka Phillip Rogers)

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FOLKS, please give me your best answer to the posted question. Actually, let me rephrase it, it was very late when I wrote it, this is more clear: HOW DIFFICULT IS IT FOR A VA EMPLOYEE, OUTSIDE THE UNIT HANDLING MY CLAIM TO ACCESS MY CLAIM?

Allow me to explain: What I am doing is absolutely unconventional. I owe it to no one to do things like everyone else always has. I am a lawyer. However, I know damn near nothing about VA regs and procedure, I need your help on those. I know a very great deal about medical practice,  and how to sue people for torts (breaking civil rules that cause you injury). I used to both defend doctors in malpractice actions and at other times, sue them for malpractice.

It is a fact that you can not sue a doctor for a dishonest opinion rendered you rendered in civil litigation like a suit over injuries. The ONLY reason for that is because they owe YOU no duty of care when they lie for the opponent. That's a bad rule, but it is a rule. That is absolutely untrue in a VA claim. The whole THEORY of VA claims is that EVERYONE is looking out for the VET, they are just trying to make sure that your injuries are truly service connected.  In a VA claim (absent some reg I don't know about) the examining doctor definitely owes the vet a duty of care. The Federal Tort Claims Act should apply, like it does to malpractice by VA docs. It is possible that there is some obscure regulation or law that would prevent such a suit, but it is unlikely because of the THEORY of VA claims.

It dawned on me a few days ago that what this ignorant ass wrote was definitely actionable, to the point that the worst part of it was nonsensical, if anyone had just considered it for a minute. While she is a neurologist, in true VA style they picked a neurologist specializing in peripheral nerves rather than the brain and she just didn't know what she was talking about. Doctors don't like being sued. They really don't like being sued for inexcusable stupidity. It is hard to find a more egotistical group. They are all about image. The VA regs say that any MD is qualified to render an opinion on any matter other than those 4 vision, psych, dental and something else. That reg is a nasty fiction. The licensing agencies won't buy it for a minute. The incompetent neuro rendered incompetent, unsupportable opinions, contrary to truly and highly qualified doctors that were treaters and she stated opinions that are unsupported by the state of the art and/or medical knowledge/literature.

I am about to send a letter to her giving her 30 days to provide me with an unqualified retraction of her C&P report, acknowledging her errors and admitting many other undeniable things, like the fact my exposures started 5 months before an incompetent exam that she claimed (without evidence and contrary to records) preceded my exposures, and, that all symptoms charted in my STR's for that exam are known symptoms of solvent poisoning (which was diagnosed in service but later - the incompetent clown missed that too). I am explaining that if she doesn't retract the bullshit report and acknowledge specific, clear medical truths she will turn her incredibly boneheaded errors into intentional torts - similar to libel and slander and explaining that will entitle me to punitive damages, which the government won't pay and can be collected by taking her assets.  I am telling her she can choose between being sued for damages and having me report her to the state medical board as well as her specialty board for neurology, or she can own up to her mistakes and give me a retraction and admit some basic medical truths about solvent poisoning, that she should have checked before writing such bullshit but didn't.

She might refuse because of her ego, but that would not be smart. Her ego will take a much more serious beating if I report her to the licensing agencies. What she did was truly inexcusable and she will be investigated, at least by the state. She would probably not get more than a slap on the hand, but it would be on her record and probably public.  On the other hand, if she admits her errors and issues the retraction, it eliminates ALL defenses to my claim and basically answers all the BVA's questions. And, it will let any future examining docs know that they damned well better be on their toes and make sure they stay within bounds  - which is all I need.

There is more than one way to skin a cat. And, I absolutely love the idea of knowing she will have some sleepless nights while she struggles with what to do about her screw ups.

I don't think she works at the VA any longer, but she might. I want to know if I can honestly tell her that if she provides the retraction and the demanded statements (all of which are supported in the literature) that she doesn't have to worry about any bosses finding out. That is why I am asking if other VA employees can access my claim file.

We'll see how this turns out. I'll report back when I get her response. This may be a tactic others can use - reporting incompetent or lazy docs to state licensing agencies when they give opinions they are unqualified to give. This could be an end run around the bullshit fiction that any clown with an MD and a white coat can opine on anything.

 

 

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