Rater substituted his own opinion for the C&P Examiner's opinion

[Justaskpat]

I have searched everywhere I can think of for an answer to this question.

I'm posting it under CUE because when I find the answer, it will assist me in writing my CUE.

Question: What is it called, and/or what is the violation when a rater substitutes his own opinion in place of the doctor's written opinion.

I was denied service connection for MDD/Anxiety, even though the C&P Examining Psych doc said in his opinion MDD was secondary to military service due to long deployments.  The rater ignored the doctor's opinion, ignored I had been medicated for years, as shown in my SMRs, and was still medicated at the C&P. The rater cherry picked little things the doctor said to substantiate his own opinion/denial, quoted the diagnosis, then completely ignored the doctor's final statement/opinion.

Geekysquid told me long ago there was a term for what the rater did but before I got the answer, Geekyquid disappeared off Hadit and I've never been able to find out the answer anywhere else.

Thanks for your time.

PS This is Veteran's spouse in place of Veteran. I'm writing as the Veteran to make it less confusing. I'm trying to help get his CUEs together as he is unable to do so.

[Scottish_Knight]

Can you cut and paste the part in the rating decision to which you are referring?  Better would be the entire VA rating decision 'masking' your spouse's ID data.  We'll be better able to assist by reading the same thing you're reading.  This will also assist in comparing the rating to the rating table.

I just did a CUE last week, so I well understand a part of your frustration.

[Berta]

 

Is this regarding your past posts here:

https://community.hadit.com/topic/75117-could-my-cp-examiner-be-disqualified/

The VA granted 50% for Major Depressive Disorder ,in 2019, with an EED of December 2018.

If you are questioning the EED, it would have to follow the CUE criteria here at hadit....unless newly discovered service records revealed evidence the VA did not consider, when they initially denied the claim.( 38 CFR 3.156C)

I read over the denial dated March 23  2011 in your past posts here and it appeared to me that the denial was based on the C & P examiner's statements-and the veteran's statements  which to me- did not provide a decision you could file CUE on-for a better EED.

The C & P exam is available as a download in the older thread.

I am sure there is more to this however- and we need to know what decision you are attempting to CUE.

 

 

 

 

 

Edited May 10, 2021 by Berta
cloud

[john999]

Rather than file a CUE you might just file an appeal and get more evidence.  Evidence can come in the form of another IMO/IME.  At some point the quantity of evidence will weigh in your favor.   CUE's are really hard and may get kicked upstairs for never ending series of appeals and denials.  My CUE I filed some time ago took seven years to finally be denied.

[Berta]

Forgot to add -it is # 25 of 26 issues  in the March 23, 2011 denial in above link.

[broncovet]

I recall reading of this probably at the CAVC.  No, raters can not practice medicine, they can not make diagnosis, nor suggest treatments.  

They can not provide a "negative" NEXUS, either.  They must use "competent medical opinions".  

Many years ago, "the Board" had at least one doc on its decision committee, so that medical decisions could be made based on the records. 

That has been discontinued decades ago.  Now, doctors and medical professionals must render an opinion.

Raters or the Board can "give more weight" to one exam vs a different examiner, but must provide a reasons and bases for doing so. 

Example:

    While doctor Jones opined the Vets condition was related to service, his PCP, who had treated the doctor for 19 years, opined it was not related to service.  Since the Veterans PCP made a more thorough exam over 19 years of treament, the board finds the PCP's opinion more probative and SC is denied.  

     The board has to craft the denial carefully, and avoid "equipose".  If 2 docs disagree (often happens), then the board has to "put it in equipose" and award benefits based on BOD.  But, the board can cite things like doc A performed xrays, while doc b did not.  That can make one doc's opinion more probative.  

      The solution to "beat" a negative exam is by getting a favorable IMO or other medical opinion.  

       If the board fails to give a reasons and bases for favoring Doc A over Doc B, then this is pretty much an "automatic" remand at the CAVC, and this always gives Vets a chance to submit a favorable IMO (new evidence).  

[Berta]

ON July 23, 2019 I wrote a potential CUE claim for you here-in the older thread-

It rested solely on violation of 38 CFR 4.6. Did you add anything to it and send it to the VA?

This is the main problem I see -

Your husband had ample inservice medical records of a depressive or anxiety disorder.

But the 2011 C & P exam did not support a chronic condition and the veteran said the main problem had been resolved.

But something caused them to award in 2019- something they received as new evidence prompted that award.

Can you tell us what evidence that was?

If they had that evidence when they made  the past 2011 denial, that could be a valid CUE.

As I mentioned in the older thread and will again-CUE is like the Watergate question:

"What did the President know and when did he know it"

Same as VA- what did the VA know ,(by virtue of all available records) and when did they know it?

They knew something in 2019 that they didn't know in 2011- or Did they?

Did the VA ,in 2011, have whatever evidence  you sent to them for the 2018 claim, that awarded that claim ?

That would be a CUE if they had it and ignored it.

 

 

 

Edited May 10, 2021 by Berta
added more.