Cfr (return The Report)

[Guest jangrin]

It says in the CFR to "return the report" if a report is not specific enough to use for rating purpose. Who are they suppose to return the report to? Is it only C&P reports? Is it the VA only or does this include the vets IMOs? Has anyone ever been aware of a report being returned while in thier claim process?

Berta, you said in your posts that you were told the IMO were not good and of no value. If so, shouldn't they have returned them to you? Also, if an IMO is not used in an evaluation of disability, (DR. BASHs IMO?) shouldn't the verteran have gotton it back from the rater? I think this could be used in NODs when the veteran is denied and the evidence is ignored.

Title 38: Pensions, Bonuses, and Veterans' Relief

PART 4—SCHEDULE FOR RATING DISABILITIES

Subpart A—General Policy in Rating

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§ 4.2 Interpretation of examination reports.

Different examiners, at different times, will not describe the same disability in the same language. Features of the disability which must have persisted unchanged may be overlooked or a change for the better or worse may not be accurately appreciated or described. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Each disability must be considered from the point of view of the veteran working or seeking work. If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.

[41 FR 11292, Mar. 18, 1976]

[Berta]

My POA suggested that the IMO was not appropriate-

My POA has no medical personnel nor anyone there with the ability or power to alter 38 CFR as far as evendentiary regs.My POA does not employ anyone from the VARO.

The VA in all documentation I have from the VA has never even seen this 'report'.No rater, no VSM , no DRO etc . The VA stated in Dec 2006 that they never ever got these IMOs.

Dr. Bash skillfully covered all this in his second IMO-after he completely knocked down the VA doc-

it is her report that is not appropriate and that does not at all meet the criteria for a VA medical opinion, not Dr. Bash's.It was not only "medically inaccurate" he stated but also did not even come close to VA 's own criteria for an IMO-

I have personal info on how it all went down- a clerk called Bath VA-the files were sent here for a C & P exam-I wanted to be present for that since my husband, the vet, was dead and could not show up for his C & P exam. The clerk said the VA doc was under consideralbe pressure and please fax three or four blood chem records immediately.The VA doc admits she used only 3-4 med recs . Dr. Bash used the complete clinical record, MRI, ECHO, etc etc and all documents from VA regarding the wrongful death award I got and also the autopsy and the Report from VACO.

Dr. Bash also reminded VA he is quite articulate in 38 CFR etc and as the Mansfield letter posted here some time ago shows- the VA at its highest level too is fully aware that Dr. BAsh's opinions are probative and important to proper adjudication of claims.

Jangrin-my vet reps acted like they never ever heard of Dr. Bash.

I dont think they actual know what an IMO really is.

And I have already complained to their main office with documentation to support -that they dont even know basic VA 101 and I had to send them a page from the VBM to explain to them what the VCAA is.

I can deal with idiots-but I cannot deal with liars.

If the VA would come up with something based on Dr. BAshs IMOs (Like inventing a new rare disease never heard of before) I would have something to fight back with and I have everything ready to go if I need an additional IMO from a pathologist.

I cannot get that IMO yet because the VA has not even seen the 3 IMOs I sent them.

The BVA got all this in a heartbeat-that remand I learned was faster then the 50 days I thought it took-

It had already occurred when I was calling the BVA about the Motion the VA filed in my behalf on something else-a old claim from 1998-

BVA asked me what claim was it actually on and I said I think on a past CUE the BVA denied-

BVA suggested I call my rep to see what the RO Motion for Recon was about but I told the BVA -heck my vet reps are still trying to look up the word 'Remand' in the dictionary.They could never handle 'Motion for Reconsideration'.

Edited March 3, 2007 by Berta

[Guest jangrin]

We have had many veterans post that say they have provided reports that the VARO has ignored. ALso a couple who have stated that their IMO were no good and that they were of poor qualiity and the VA didn't use them. I'm will put this question out there again....

It says in the CFR to "return the report" if a report is not specific enough to use for rating purpose. Who are they suppose to return the report to? Is it only C&P reports? Is it the VA only or does this include the vets IMOs? Has anyone ever been aware of a report being returned while in thier claim process? Would the fact the a "poor" report was not returned be a "point" in a NOD or appeal? If the report was return as it was supposed to be, wouldn't this be an indication to the veteran that they needed stronger evidence? If this was important enough to put in the CFR than it has to have some kind of significance.

38 CFR

§ 4.2 Interpretation of examination reports.

Different examiners, at different times, will not describe the same disability in the same language. Features of the disability which must have persisted unchanged may be overlooked or a change for the better or worse may not be accurately appreciated or described. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. Each disability must be considered from the point of view of the veteran working or seeking work. If a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.

[Berta]

The VA has to prepare a SOC with Reasons and basis for rejecting probative medical evidence.

They have to clearly state why the information is not relative or supportive of the claim.

An IMO from a real doctor goes far beyond the level of layperson statements.

I won my past claims on layperson statements-hat is my own interpretation of the clinical record and I knocked down 3 or more VA medical reports.

These days the VA does not seem to even read what a vet sends them- you would think that IMOs stand out in the c file for them to read-

I think this reg pertains to inadequate C & P reports- inadequate for rating purposes-

but I have never seen in any BVA that a report was returned to anyone

and I dont think a rater would return one for clarification- as long as it denies the claim-

regarding a IMO from a private doctor- I have never heard of the VA returning this type of IMO to the claimant or to anyone else.

If a vet pays real cash money for an IMO or even gets a freeby from a private doctor and it completely fulfills the VA's own IMO criteria-which they too have to abide by-with C & P reports-

and the VA fails to send them a SOC stating why the IMO was no good or worse yet , if the VA fails to even acnowledge it, than they must fight back like I am doing and demand their due process rights.

The VA must consider ALL competent medical evidence.

It cannot be redundant nor cummulative.

It must contain complete rationale medically for the opinion to be sound.

I saw a case on remand and the vet had per the BVA- FOUR independent med opinions that they had never considered.

No claim should ever get that far without these IMos being considered.

[Alex]

Berta --

Keep in mind that the VA does not have to list in a SOC/SSOC all evidence it uses as the basis of its decision. Under Schaefraft, it must base its decisions on the enitire r Usually, however, you can get them in trouble with the BVA if they don't at least try to discredit it, or the BVA will do it for themselves.

Alex

[Alex]

Berta --

And in every case I have seen, VA notifies the veteran and his service rep that it is going to seek an IMO (I think this is either in the regs or M21/M21R)and, when it comes back, gives them 60 days to comment on it.

Alex

[Berta]

Alex- Ron Abrams thought I pulled a good one- when I had my claim remanded in a matter of weeks due to all this bullcrap-last year-

Then again I knew how to do it because I read his book (VBM)

MY POA says it was his idea to get the VA opinion- not the VA's.

I would LOVE to get an SOC on my IMos-

I am still holding my hand on my rear end waiting for a proper VCAA letter-another contention that caused my fast remand.Havent got one in 4 years.Claimed filed in 2003.

Men and women I am considering that the RC constructively denied my SF 95-

so I have 6 months to file in fed court-

unless Jeff (Regional Counsel)calls me very soon and asks for more time.

I am ordering the Rules of Fed Court Procedure on Monday.

But if my vet rep says what I want him too-the heck with the VA -I might just sue my POA instead-