VA Claims reviewers deferring claims involving IMO support??? Anyone see a pattern?

[Corwin]

I recently (March 2) put in a claim for OSA secondary to CAD and tinnitus. I included an independent medical opinion (IMO). I received a minimally worded denial on April 11. It contained no opinion or even reference to the  contents of the IMO. A C&P was never asked for nor did the reviewer even mention the tinnitus part of the claim. The reviewer also stated that they reviewed the most recent 18 months of medical records and stated as a fact that my OSA was DX'd ..." Your VA examination conducted on March 8, 2022 confirmed an active sleep active diagnosis".   "Active sleep active"??? 

No surprise I am sure to most,  but I was  never  at the VA on that date which was  after I actually submitted the claim. My OSA dx was given to the VA in June/july 2012 and I have had several subsequent appointments with their sleep physicians since then . Those original DX records were included with my claim.

My feeling is, when they saw the IMO, they punted. Their claim response certainly seems counter intuitive to their  supposed 'responsibility" to  assist. Has anyone else had this experience? I am considering addressing this issue with the VA directly through the Inspector General office with copies to Congressman. After several error filled claims experiences, I am, at this point, a little tired of dancing.

Best, Nick

[Dustoff1970]

Unfortunately this is a situation normal pattern for VARO denials of initial claims even those with important/extensive medical support evidence including a favorable private doctor's nexus opinion (MO) and then the vet will very often win the same claim on appeal to the professional fair minded lawyers and judges of the BVA.  I have been there and done that many times since 1985.  "Delay and Deny" is their cheer leading VARO sector chant.  Good luck going forward.

P&T 100% Scheduler (Formerly P&T TDIU) since 1998.

My comment is not legal advice as I am no lawyer, paralegal or VSO so do not contact me for more info folks and I remind 3 of you are on my ignore list. 

[Vync]

@Dustoff 11is correct. The VA is required to review all evidence, not just 18 months of it. Most over half the claims I filed since 1995 has had one common factor: not all evidence was considered. On the bright side, I have won on appeal and review on almost every claim. While we can appreciate people being hired to process our claims, it seems that they are pressured to spend as little effort as possible to do. Quantity over quality. I even had a DRO tell me that the person who processed my initial claim (five years earlier) made a lot of stupid mistakes. 

Please let us know how it turns out.

[john999]

The first claim I filed in 1972  the VA ignored or failed to consider all my private doctors evidence.  I did not know that at the time because VA was not required to list all the evidence they had.  They would just "say" they did consider it all.  I believed the VA did consider my doctor's evidence and that I had just lost.   I filed a CUE on that basis many years later because it was obvious to any unbiased person that the VA ignored my evidence.  Of course ,  I lost.  Most Cue claims are pipe dreams. I have won one over the last 50 years.

[Mr cue]

The VA pick a choose what they use from each medical report and exam.

Like I can't get the VA to even address there own bva decision from 2001 or 2012.

For smc benfits.

I would believe there own decision could be used as evidence in your case. But if it's favorable they will not address it. Smh.

Law is the VA is to address all evidence favorable and negative on a decision.

This is how you get benefit of doubt.

 

As far as cue claims I can't say they are pipe dreams.

. Because I was rated under a rating code for a gunshot wound.

I don't have a gunshot wound. I was pay 90.00 a month under this rating code. From service could work due to my injury.

An i had the vso American legion at the time. I was 23 24 I didn't understand how the VA work.

This why I have trust issues lol

 

2001 I apply for tdiu and 60 for my neck condition.

Granted by ro first time.

I feel that was to easy. So I cue the 1993 claim from service.

Find out my claim from service was in appeal status for 8 years.

Granted extra scheduler tdiu from 1993-2001.

So I believe in the cue 

 

 

[john999]

Mr. Cue

             For my CUE I had a lawyer and we went to Court of Vet Appeals.  We both thought I had a slam/dunk case.  We found out that according to the VA we could not prove the VA disregarding my evidence.  How do you prove a negative?  So we lost after 6 years of appeals.  Bad taste in my mouth for the rest of my life.  Cue just has to be black and white.  No thought process or judgement. A joke since the VA uses nothing but subjective judgement and bias.

 

[Vync]

19 hours ago, john999 said:

Mr. Cue

             For my CUE I had a lawyer and we went to Court of Vet Appeals.  We both thought I had a slam/dunk case.  We found out that according to the VA we could not prove the VA disregarding my evidence.  How do you prove a negative?  So we lost after 6 years of appeals.  Bad taste in my mouth for the rest of my life.  Cue just has to be black and white.  No thought process or judgement. A joke since the VA uses nothing but subjective judgement and bias.

Wow. That's crazy. The presumption of regularity can easily be disproven via statistics of the percentage of claims overturned at the BVA in favor of the veteran. It seems the system says, "Let's ignore that reality and substitute our own." With the CUE laws/regs are weighted in favor of the VA, the only way we can change that is to get our lawmakers to rectify CUE. It should be based on facts.

Would VAOPGCPREC 12-95 or Bell v. Derwinski, 2 Vet. App. 611 (1992) apply in your case where they might not have factored in evidence? “…Medical records which are in VA's possession at the time VA adjudicators render a decision on a claim will be considered in the record at the time of the decision, regardless of whether the medical records were actually before the adjudicator at the time of the decision.” Additionally, “The General Counsel found that if the outcome of the case is altered by the records, a later claim may result in a finding of clear and unmistakable error.”

[Gulfvet45]

On 4/29/2022 at 10:27 AM, Corwin said:

I recently (March 2) put in a claim for OSA secondary to CAD and tinnitus. I included an independent medical opinion (IMO). I received a minimally worded denial on April 11. It contained no opinion or even reference to the  contents of the IMO. A C&P was never asked for nor did the reviewer even mention the tinnitus part of the claim. The reviewer also stated that they reviewed the most recent 18 months of medical records and stated as a fact that my OSA was DX'd ..." Your VA examination conducted on March 8, 2022 confirmed an active sleep active diagnosis".   "Active sleep active"??? 

No surprise I am sure to most,  but I was  never  at the VA on that date which was  after I actually submitted the claim. My OSA dx was given to the VA in June/july 2012 and I have had several subsequent appointments with their sleep physicians since then . Those original DX records were included with my claim.

My feeling is, when they saw the IMO, they punted. Their claim response certainly seems counter intuitive to their  supposed 'responsibility" to  assist. Has anyone else had this experience? I am considering addressing this issue with the VA directly through the Inspector General office with copies to Congressman. After several error filled claims experiences, I am, at this point, a little tired of dancing.

Best, Nick

The exam that you had is called " available clinical evidence (ACE) examination.  This type of exam does not have the veteran come in for the exam but uses the records.

The examiner is to address all of the evidence of the records this includes your research submitted and the other medicals opinion. As this is a claim on secondary, it is to address the issue of the law of the condition is either caused by or aggravated by your CAD and or tinnitus. A statement of the SA did not start in the service and is not related to the service is an inadequate medical opinion for a secondary service connection.

There are case laws governing the favorable evidence in in your claims file and how this evidence must be addressed in the rating decision.

[Richard1954]

I had an initial claim in 2016 for my left knee secondary to my right knee, I also had a claim for sleep apnea. I paid for the first time ever for an IMO to service connect both issues, when the denials for the knee was isued , the rater did not even addres the IMO as part of the evidence. I also had an N/P C/P examiner for the knee who when out of her way ( 21 days later) and found someting to discredit my claim which she cited to justify her opinion. This backfired on the examiner, because Not only did she missquote the referenced material, but it was ovivous that she was out to get me ( why would any examiner go out of their way 21 days after the exam to find a new reason to discredit the claim.)  I was awarded Sleep apnea on the first claim, but had to appeal the denial on the knee, and finally won the claim. In fact, in both cases the IMO's were not needed and the va never acknowledge they even existed. Since then I vowed if I needed an IMO, I would get one from someone with out paying for it. So far I haven't needed one since then.

[El Train]

On 5/22/2022 at 7:15 AM, Richard1954 said:

 I also had an N/P C/P examiner for the knee who when out of her way ( 21 days later) and found someting to discredit my claim which she cited to justify her opinion. This backfired on the examiner, because Not only did she missquote the referenced material, but it was ovivous that she was out to get me ( why would any examiner go out of their way 21 days after the exam to find a new reason to discredit the claim.) 

I had this happen too.  VA examiner gave me a favorable opinion (at least as likely as not); a week later it was updated (ACE exam) with a different rationale and a unfavorable opinion (not likely caused by service) symptoms were a natural progression and would have happened anyway.  Well that backfired too.  I complained and they set me up with another C&P (different DR.).  He was confused why the change of heart by the previous examiner.  I got 10%, filed an NOD, got an outside Dr. assessment.  In the end, I got 80% for the claim.  Big difference.  Buncha BS.

[Riplip]

Same thing happened this year for me. Filed for OSA secondary. No C&P and in a couple of weeks a denial. This happened in March. I was never sent any denial paperwork or anything. Crazy. I started another claim and I'll get back to that one before the year is up. I think they are dodging any OSA claims waiting for changes or something. I hope it works out for you. 

[Mr cue]

Yes the VA has got real crazy with the exams.

An it's like we have no recourse you get a favorable exam they say it didn't address this or that.

My self I apply for smc benfits I have had over 7 exams. All favorable.

They still try to order more exams I denied the exam.

They wouldn't even make a decision on the claim.

I had to withdraw the issue they were an keep ordering exams for to get my other issues back to the board to be  address.

I am at the court now asking them to address the withdraw and the reason why I had to.

An why I couldn't be give a decision based on my record.

Its call  developing to deny.

Seem the VA is back to the old tricks to me again. My opinion.

[MilvetHD]

Yes, I've experienced the same thing and have been waiting on a hearing at the BVA since September of last year. The VES doctor who did a records only review made claims that are completely unsupported medically and are in direct conflict with all of the peer reviewed medical evidence I submitted. Worse the VA discounted the IMO of my personal doctor who has been seeing me for years and who has over 25 years of experience, along with certification as being in the top 5 percent of doctors who specialize in treating  my condition. Seriously, when I read the denial letter I laughed out loud. I was surprised and relieved that they put so much nonsense in writing. 

 

Edited July 16, 2022 by MilvetHD (see edit history)

[Dustoff1970]

The good news is that all is not lost.  You appear to have a very strong case to win your claim on appeal to the BVA with your stated evidence.

Thirty five years of successful experience as a pro se claimant and appellant has shown me that many many vets like me win our claims on a BVA appeal with the same strong evidence that was rejected/denied by the VARO rater and/or C&P examiner.

I have also read many hundreds of BVA and U.S. CAVC court decisions granting vets their claims based upon same strong supporting evidence and various types of errors the judges find in the denial decisions by the VARO rater, examiners, etc.

I have posted elsewhere the different types of common decision denial errors committed by the VARO raters and examiners that is not mentioned by others. You can search the forum for my list of those recurring errors.

Two recent BVA appeals I won were due to strong supporting medical evidence and my arguments plus 1. "defective" denial decision by rater and examiner and 2. "inadequate" denial decision by the rater and examiner on the other appeal according to BVA judge opinions.

Bad news is appeals often can take 4 years or longer.

My comment is not legal advice as I am not a lawyer, paralegal or VSO.

Edited July 16, 2022 by Dustoff 11 (see edit history)

[pacmanx1]

Quote

I recently (March 2) put in a claim for OSA secondary to CAD and tinnitus.

 

2 hours ago, Dustoff 11 said:

Bad news is appeals often can take 4 years or longer.

Dustoff, going off the OP (ORIGINAL POST) under the new AMA system/program appeals no longer take 4 years, they should only take about a year or so give it an additional weeks or months. The AMA system/program began around 2017 and then actually took effect in 2019. So, any claim dated/filed after 2019 should fall under this new system. So, the bottom line is that new appeals should take no longer than a little over a year to be determined.

Edited July 16, 2022 by pacmanx1 (see edit history)

[Whodat]

5 hours ago, Dustoff 11 said:

Bad news is appeals often can take 4 years or longer

You sure got that right.  

[Dustoff1970]

That is good news paxman and may explain why my non appealed recent VARO rater claim favorable decisions on my GERD for 60% and Tinnitus at 10% took only 20 days from start to finish including two C&P exams.  My strong evidence consisted only upon long term VA medical notes to include med prescriptions copies and 1970 to 71 Army records with no doctor's nexus medical opinions submitted or needed.

[63Charlie]

8 hours ago, Dustoff 11 said:

 

Bad news is appeals often can take 4 years or longer.

 

This ^

Just like the military was, and maybe still is, hurry up and wait.

Appeal to the Board.

[retiredat44]

I am not saying anyone lies, but I don't believe they read the records... or they lie either way... in my case I have more than enough,, I know this looks liek I am being flppant about my records, but without stating again all the issues, llok at some of my medical records with the va... (I say some because, yes there are some more) photo of records attached (for those that don't know me.. sorry if you have already seen them)

 

Edited July 20, 2022 by retiredat44
duoble post (see edit history)

[Mr cue]

Well I understand why the person who posted is feeling some type of way.

First it sound like he put in a hlr for his effective date. Not an increase rating 

So I feel him.

Next they call a duty to assist error or a inadequate exam error on something that was already granted.

Ok does any of this have to do with a effective date. No.

I don't think there is anything the veteran can do right now but go through there process.

Now to if they try to reduce.

Yes he has to appeal the decision

An go through the process of fighting the reduction. Yes I think that would be more stressful.

Now I can't say what they are doing but there is nothing wrong with gathering info if they try to reduce 

Last the VA is working different than it did it 20 10 years ago.

I have seen the games

I apply for my smc benfits after my 25 years just because of things like this.

An I have over 4 request to reduce my rating in my record since 2018 when I apply for smc benfits.

All came back 25 yr protected.

So I am not one to just say the VA will not do this or that 

An yes you will win if they didn't do the reduction right.

Who want to fight for there rating when all they ask was for there effective date to be address.

Last I would upload a statement that you put in the hlr about your effective date not a increase rating.

Explain everything. It become part of your record. So if you do have to appeal.

Good luck