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

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Corwin

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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.”

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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.

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  • 3 weeks later...

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.

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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.

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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. 

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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.

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