PLEASE ADVISE AS TO HOW RESTRICTED CLAIMS FILES ARE

[Otrgypsy]

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.

[Otrgypsy]

Hamslice, Yeaaaahhh, I can't really argue with coerce. But It is lawful coercion that will have no value or effect unless she sees her mistakes. There is nothing wrong with making a person admit the truth, that was my job for a long time. It is most fun to do in the courtroom with people watching.

[Otrgypsy]

Broncovet, Thanks. You didn't really offend me. I was just frustrated by all sorts of comments that were non responsive to the real question. I know I had a couple questions I wanted to ask you but I can't recall them right now. My memory is an issue. I will probably get back to you.

[broncovet]

When people ask me for advice, sometimes they dont like the answers I give.  As I mentioned, I doubt you will have a good result "trying to force" an examiner to change his report.  Most people dont like to be forced to do anything, I dont.  

Instead, I outlined 3 things you could do.  Use 38 CFR 3.179 to correct errors, challenge the competency of the examiner, if applicable, or use an IMO/IME to refute a bad exam.  

I put get an IMO/IME last because they cost money.  Generally I only "throw money at the problem" if I have tried other stuff.  

This does not mean you can not "ask" the examiner to amend the exam report, and give your reasons for asking.  

That's the 3.179 part.  If he refuses, move to the next step, challenge the competency of the examiner, if applicable.  

And, if those 2 fail, you can even go to another VA doc, perhaps more Veteran friendly.  Only if all those did not work, then you will have to hire your own doc to refute the exam with an imo/IME.  

While I admit this doesnt "exactly" answer your question of how to force the examiner to do something, but I still say for most, it works, if you follow through which what I posted.  

Im not gonna answer "how to get revenge" on your doctor, nor will I answer "how to exact revenge from your attorney".  

I have never had a good result trying to get revenge.  Oh, I tried, with my ex.  It made her mad and she tried to get revenge.  It was a vicious cycle.  

Finally, when I forgave her, and meant it, my troubles went away.  I learned something.  Never try to get revenge.  

"Revenge IS MINE" saith the Lord.  Romans 12:19.  (my paraphrase). Im leaving "his stuff" that he tells me to keep my hands off alone.  

[Otrgypsy]

Thanks, I do appreciate your suggestions. And, I know they are offered in good faith. However, I am absolutely giddy this morning because I just learned that a lawsuit against the doc is golden. I want to tell you and others why.

I may have mentioned I am medically knowledgeable too. I got that way because for years all I did day in and day out was defend docs that were being sued for malpractice. Every case I had meant I had to learn basically everything there was to know about all the medical issues in the case. The way I did this was to meet with top experts, the best docs available, to have them explain it all to me in a way meant to give me a thorough understanding so that no one could baffle me with bullshit. That was usually about 3 experts a case. I would usually meet with about three a week to educate me and usually, when not in trial I would take depositions from about three a week. Cost was no object, the companies paying me to defend them wanted me to be very well advised. You see I really know how doctors react to being sued. They manage to get a lot sympathy from lay people because of bullshit propaganda pushed by the right wing and the insurance industry. Generally, I like docs. I definitely love medicine. In '97 I went back to school to do a career change from law to medicine. Unfortunately, at the time I didn't believe that it took any special talent to do well at trial. I believed that was a lie that the old boys were telling everyone to make themselves look good. Trial was always a lot of fun for me and I did unusually well. I took to it like a fish to water. I transferred my practice to a woman who worked for me who was very smart and an excellent, AAA++ file handler - someone who did everything to get a case ready for trial. I assured her trial was not hard for someone who really knew the case. She proved to me that I was wrong. She fell on her face simply because she didn't have that certain something. I had to come back to law because the purchase of my practice was how I was funding my education and supporting my family. I know how docs react to being sued, far better than the vast majority of people. Doctors are basically trained to react like whiny little bitches when they get sued. It starts in Med school with other doctor instructors indoctrinating them into the belief it is all very unfair. That is an absolute joke. The truth is, it is very difficult to sue a doctor because medicine is an art and to prove a claim against a doctor, you have to prove that he/she fell below a line that no competent doctor would fall below. Because it is an art as much as it is science and because there are different schools of thought on almost everything that line is very low. You absolutely can't sue a doctor just because the result was bad. Morgues are filled with people that have had the best of care. Their whining about how unfair it is, is very much like some fool complaining about being sued because he turned left in front of a motorcycle, which happens a lot. Point is I do know how they react to being sued, but being all about image, most people don't see that side.

I know the threat of a lawsuit will really cause the doc to take a much more careful look at my case then she ever did before (backward right?). She will see she screwed up in a major undeniable way, she will be upset, she will be worried. And she is going to look like a real incompetent if I report her to the Medical Board. She may not be incompetent in general, but that is no excuse for being incredibly incompetent on my case.

Until last night, I had no intention of actually suing her for several reasons. The biggest was I "knew" I had probably blown the statute of limitations, for a variety of reasons. A really big one being that the California statute of limitations is only 1 year. I assumed the statute against the VA would also be 1 year. I wasn't worried about it 'cause I didn't really want to sue her or so I told myself when I thought I was too late. I just wanted to get her to correct her errors and make her uncomfortable. I explained a theory in the letter about how I would get around the statute that I knew any decent lawyer would tell her was legitimate and possible - even if not likely to win. That would be enough to worry any doc.

BUT LAST NIGHT I LOOKED AT THE FEDERAL TORTS CLAIMS STATUTE AND CHECKED WHEN I ACTUALLY GOT THE C&P, BECAUSE IT WAS VERY LATE THANKS TO THE SCUM BAG LAWYER.  SURPRISE!!! I AM WELL WITHIN THE STATUTE. FOR FEDERAL TORT CLAIMS IT IS TWO YEARS FROM KNOWLEDGE

My girlfriend in the states was sick yesterday and was unable to mail the letter, thank God. I now need to revise it. I will no longer offer to walk away and give her piece of mind in exchange for a retraction. Her ass is mine. Her C&P cost me my home. I am confident at this point that I will get my proper award, probably within the next 9 months. But that is not going to get my home back. Not to say anything about the emotional distress. The cost of housing where I used to live has gone up about 40% and keeps climbing. I will be entitled to all that lost equity and more which would allow me to get back into the same area in a similar house.. Truly slam dunk cases are very, very rare in law.  This is one.

The paragraph I have copied below from the demand letter tells you everything you need to know about her level of incompetence. And, it is not based on a faulty opinion. It is based on adding 2+2 and getting 1. No experts needed, its only a question of damages. She truly had a major brain fart because she was in a hurry, didn’t care and wasn’t paying attention, for which there is no excuse.

“The two most egregious and absolutely inexcusable factual errors in that report were the only real foothold that the claims handler had to deny my claim. In your report you properly acknowledged I held only two jobs in the Navy, both quite toxic, for a period of 2 ½ years (30 months). You claim that I had no toxic exposures prior to January 1973 when a Navy psychiatrist did an incredibly incompetent psychiatric eval. Facing significant depression without any apparent cause, he didn’t even bother to take a relevant history. That would have included what kind of work I was doing. And, you never bothered to ask. He came up with very unflattering diagnoses including among other things, borderline personality and schizoid personality. You apparently bought into that garbage eval hook, line, and sinker. In conclusion, you stated your opinion that my “psychiatric,” problems preceded my exposure to fuels and solvents and were therefore pre-existing conditions having nothing to do with toxics. However, you failed to explain, and you cannot explain, because it is absolutely impossible, how it is that someone who held two very toxic jobs for 30 months out of a total of 33 months on active duty managed to avoid toxic exposures prior to a psych eval conducted 9 months into service. I was inducted May 1, 1972 and separated February 1, 1975.”

BTW, every last symptom noted in the psych report is a proven and acknowledged symptom of solvent poisoning, if you can trust peer reviewed medical journals that I was invited to file.

And bottom line, I don't really need her retraction. Even most, though not all VA employees can figure out that 33-9=24 and that is the end of her C&P. On the other hand if she wants to avoid a complaint against her license (the lawsuit is now going to happen), she will give me the retraction and probably a few other requested statements about the standard of care that she breached. If that happens it really sews up the coming result on my case. You can never have too much seriously good evidence until the fact finder, says Ok, OK ,Ok that's enough.

I AM TRULY EXCITED.

Bronco, I haven’t bothered mentioning it before, but I think I have already, without knowing it, done what you are suggesting. A new Senior VSR stepped into my claim a month or so ago and started pushing me to have exams with more unqualified docs. I had an intuitive sense this guy was different. I sent him a long very carefully written letter that I had help with – to make sure it was clear. I explained what an abortion the C&P was and how all qualified doctors, including some of the VA’s best agreed, and showed him the truth of these things. I haven’t heard from him. My sense is he took the time to read it, was shocked, and is now confirming the truth of what I said and doing a legitimate review of my voluminous file for the first time. I had asked/politely demanded that the C&P be stricken from the record or marked in such a way as to prevent any other lazy docs or claims handlers from relying on it. That is, as I understand, it the effect of the regs you cited.

If I put it in military or fighting terms maybe others will understand better. If you are fighting an enemy and they have outnumbered you and inflicted great harm, do you ask for a truce when re-enforcement and resupply occurs, or do you go after them from all sides and decimate them??? It is my style to take it to them from all sides/angles and do everything to destroy the opposition. Let them raise the white flag.

 

The VA F*cks us all the time. When you can make the cretins that screw things up truly answer for their incompetence, in a meaningful way that is something we all should do. If enough people do this, it really will serve to clean things up. It will work a hell of a lot better than any amount of new regs or more incompetent military “systems analysts” coming in and designing new circles for clowns to push paper in.

 

Edited March 28, 2021 by Otrgypsy

[pacmanx1]

This is just my humble opinion, but I think you are missing the point. You have the right to challenge a negative medical opinion any way you deem fit, but the simplest way is to get a positive medical opinion with a good medical rationale. I will admit that I just scanned through this thread, but you have been given some great advice. Most veterans do not have the time, money, focus, energy or strength to take a C & P examiner to court when they could just get a positive medical opinion to refute or to bring their claim in approximate balance or equipoise. You are talking about suing the doctor then trying to file an appeal after you get a court decision to get the VA to change your rating decision where you could just get a positive medical opinion and file an appeal to get a better rating decision.  When the veteran has both a positive and negative medical opinion then the veteran gets the benefit of doubt and win his/her claim. Yes, the veteran would have to file an appeal, but it would be a lot simpler to file an appeal than file a lawsuit and then file an appeal. 

Side note: the VA don’t care about public opinion. Just do a research on VA disability scandals, they will just move their employees from one station to another and maybe even give them a promotion. I am not trying to be insensitive nor am I joking, it happens.

I am personally fighting not one, not two, not three but five (5) negative C & P medical opinions that the CAVC and the BVA determined that were inadequate for rating purposes and granted me a 1998 service connection effective date stating that my evidence was always in my C-File.  It is ridiculous the evidence that the medical examiners and the rating decision overlooked but I won my claim, and it has been around 21 + years. I don’t care about the examiners. I just want the VA to complete my award so I can move on with my life.

M21-1, Part III, Subpart iv, Chapter 5 D.

As indicated at M21-1, Part III, Subpart iv, 5.1.k, resolve reasonable doubt in favor of the claimant if all procurable evidence, after being weighed, is found in approximate balance or equipoise.  38 CFR 3.102 dictates that the Veteran prevails when the evidence neither satisfactorily proves nor disproves an issue.

Reference:  For more information on applying reasonable doubt, see Alemany v. Brown, 9 Vet. App. 518 (1996).

[Berta]

Pacman is right-

You said :"BUT LAST NIGHT I LOOKED AT THE FEDERAL TORTS CLAIMS STATUTE AND CHECKED WHEN I ACTUALLY GOT THE C&P, BECAUSE IT WAS VERY LATE THANKS TO THE SCUM BAG LAWYER.  SURPRISE!!! I AM WELL WITHIN THE STATUTE. FOR FEDERAL TORT CLAIMS IT IS TWO YEARS FROM KNOWLEDGE"

The SOL is controlled by state law.

Read the info here on the  Brain Tally FTCA matter-searchable.

The SOL in California for FTCA is One Year.

Tally had definitely been malpracticed on at a VA in California ,but by the time the VA said they learned the doctor was a federal contractor, and not a VA employee, Tally's SOL had run out.

I posted the link to VA's "Providers", here at hadit , available under a search. I have no idea why Tally's lawyer didn't not check it out.

You can find out if  the C & P doctor falls under FTCA, but they probably work for federal contractors like QTC, LHI, or VES and are exempt from FTCA claims.

As an FTCAer myself, I see absolutely no basis for a FTCA claim against the VA in your case, anyhow.

Maybe your girl friend could be willing to help you understand what we are saying here.

If veterans could sue VA by claiming  malpractice in regards to a lousy C & P exam, there sure would have been  established case law  re: the 1946 FTCA regulations , by now as well as documented  major veterans winning class actions on that issue -by now, as well.

https://www.justia.com/injury/federal-tort-claims-act-ftca/

I feel bad for your situation but you are not comprehending the good advice you got here.

I have no further comments but want to make sure others reading this understand how FTCA, in relation to the VA, works.

 

 

 

 

 

Edited March 29, 2021 by Berta
wind