C& Pdr. Admits Cause Of Disease Isunknown But Still Opines Against.

[mjdt]

Hi,

My hubands claim has just been denied at the appeals management center because of an opinion that the c&p dr. gave.

I will explain more about his disease if anyone is interested but right now I am more interested in understanding how we can get the va to use the reasonable doubt doctrine

We are claiming that Jim's musculoskeletal disorder is secondary to his sc shrapnel wounds that he got in viet Nam.He is 30 %for those wounds and still has shrapnel wounds in his body.

He had surgery at the va in 1969 to remove some of the shrapnel.He was dxed with psoriasis soon afterward.

We filed a claim in 1989 and it went all the way to BVA and denied.

We were successful in getting it reopened in January 2006

The BVA remanded it to the AMC to get aC&p exam opinion

We had filed to reopen in2001 and unfortunately he had a stroke in july of 2005.

IT was reopened in 2006 after the stroke.

The c&p dr exAMINED THE RIGHT LEG AND MUSCLES (Shrapnel is in left)

We got summary of his opinion he made no refererence to shrapnel wounds said in his opinion not due to military.Then says the cause of psoriatic arthritis is unknown that usually people with this h ave the HBlA27 gene but this patient doesn't have it.(Jim has been tested twice at the va and he doesn't have it)Then he said my opinion is that it is caused by genetics,age and impared immune system

We got the SSoc and they denied the claim and quoted this dr. and also stated that the dr. felt it was all due to the stroke.this dr also said that it could becaused by enviornmental factors.

We took all this to our vso and he responded by poking holes in doctors report.etc etc.

My question is this.

When it is sent back to the BVA(I know they will consider reasonable doubt)and they balance the evidence.Can they grant the claim without getting a dr. who actually uses the language as likely as not.

Or will we have to get a dr. to say that.One of the reasons tat the BVA`reopened it in the first place was that a va dr. in a progress note in 1989 put that the patient has associated with his sc shrapnel woundd.The BVA caugt that statement and remanded because that is all the dr. at that time said.The BVA said the claim needed more devewlement to see if they could find the origin of the diagnosis.We have responded to the ssoc by giving astatement from the 2005 merck manuel that this disease has to be triggered by an enviornmental factor such as an injury,infection toxins in the body etc.

There are no negative facts on record only this that we no of.

The medical record is all consistant over the years.I guess what I am hoping is that the BVA itself will just make the decision to grant based on reasonable doubt

Please give any comments .Jim and I need all of the support we can get.

Thanks ,Mary

[Vike17]

Mary,

In order for the VA to envoke the "reasonable doubt" doctorine, the evidence must be in equal balance for and against the claimant. However, it appears that your husbands claim is far from that. What I mean is this; if the claim has already been to the BVA and denied based on a C&P exam orderd by them, that also means that it was denied at the RO level and I would probably have to guess that C&P exam wasn't favorable either.

It looks like one of the three basic parts to a VA claim is missing in your husbands claim: some type of nexus!

You also asked;

"Can they grant the claim without getting a dr. who actually uses the language as likely as not"

No, not really. A doctor must use the phrase "at least as likely as not," which in legal terms means 50 - 50 chance, thus allowing the VA to legally use the benefit of the "Reasonable Doubt" in a veterans favor.

"Or will we have to get a dr. to say that.One of the reasons tat the BVA`reopened it in the first place was that a va dr. in a progress note in 1989 put that the patient has associated with his sc shrapnel woundd.The BVA caugt that statement and remanded because that is all the dr. at that time said"

One has to keep inmind that just because VA re-opened a claim doesn't mean it warrants service-connection. When the VA re-opens a claim based on "new and material" evidence, all that means is the new evidence warrants another look see to see if in fact the disability in question should be service-connected.

"We have responded to the ssoc by giving astatement from the 2005 merck manuel that this disease has to be triggered by an enviornmental factor such as an injury,infection toxins in the body etc"

By sending in something like this which has no reference to YOUR HUSBANDS disability will do nothing for the claim. You will need an IMO from a doctor stating that your husbands disability is in some way shape or form related to another injury and so forth. The doctor must give his/her fullrational as WHY they have came to such a conclusion. This is where the Merck Manual can come into play as the doctor should reference this in the opinion.

"There are no negative facts on record only this that we no of.

The medical record is all consistant over the years.I guess what I am hoping is that the BVA itself will just make the decision to grant based on reasonable doubt"

Obviuosly, there is something in his medical records that do not make a connection between the two disabilities. Otherwise, the VA would have granted the claim long ago. The Bottom line is you'll need a strong IMO from a doctor to make your case. This IMO would establish the missing nexus or "link" between the two disabilities the VA needs to grant service-connection.

Vike 17

[Pete53]

Mary:

Welcome to Hadit and thank you for helping your Veteran.

Your best chance is to get an outside medical opinion from an MD. In my opinion it is the only way but my suggestion is for you to show the Doc the reasons that the VA turned Jim down and does the Doc see it that way or not?

Good Luck and don't give up. Maybe Walter Reed can help your husband. I would ask my Senator and Congress Critters to help.

[Objee]

Mary,

As other responders have said, no nexus - no SC. Have you discussed the situation with hubby's primary doc? If you have your claim ducks all in a row, you can make a good case for getting help from the treating physicians. If they just won't help then you'll need a medical opinion from outside the VA system - an IMO that follows the VA guide for C&P exams for Jim's condition.

Don't just run out and throw a batch of paper at an MD for an opinion. Organize, tab out and write your analysis for your primary to read. Put medical record copies relevant to the claim with your analysis. Remember that any medical opinion has to be based on all medical records - in-service (SMRs) and post-service (VA and private). The doc writing the opinion has to say s/he had read all medical records and bases the opinion on those, the examination, etc., etc. After all, if the doc hasn't read the SMRs, how can s/he justify today's symptoms as being related to an active duty event?

Ralph

[mjdt]

Thanks guys,

Vyke This is the only c&p exam that Jim has had concerning this issue.The BVA remanded the claim back to the AMC in order to get an opinion as to pathology and to try to discover to the extent possible the beginning of the disease.

`A little background:

In 1988 we had filed a claim for arthritis.It really was a dumb claim as we didn't know what we were doing and didn't use a vso.We filed the claim. He never had a C&P.THE RO then denied it because it was more then a year after discharge.We didn't know anything then about direct and secondary claims then.We didn't even know about the CFR.I'm sure the RO thought it was a frivolous claim and denied it. we didn't really file a NOD .IT was sent to the BVA and of course it was denied.We droppedit and it closed.

Jim was getting help from the VA hospital He was also at 10% for shrapnel wounds.His condition was getting worse.We were learning the VA system by then.I was also learning how to use the computer for the first time and started searching the net.I found out about the CFR and how you could file claims.direct and secondary.We went to see our local VSO.He was very good and fought for Jim

In 2001 we filed a claim with 2 issues.1 an increase for shrapnel wounds and 2 psoriatic arthritis secondary to the shrapnel wounds.

Jim had a C&Pfor the shrapnel wounds or scars.nothing else.When jim mentioned the psoriatic arthritis the examiner said you are here for scars nothing else.Our R O denied even the claim for shrapnel .We filed an Appeal.The duty to assist law had come into existance by then and the BVA told us what they needed.but first they divided the claims into 1 increase for shrapnel wounds and 2 to see if there was new evidence to reopen the closed claim.

We got a letter in 2002 stating that they were going to develop the claim themselves.Then before that happened the law was changed that they couldn't and the AMC was set up.However we had sent a lot of evidence and they had the c&p for the scars.The AMc was just starting so they farmed his claim to Huntington.They granted the increase for scars in2004 but denied reopening the old claim.WE Filed a NOD for it.It was sent back to the BVA.The BVA remanded it back to the AMC in2006 because the BVA found a progress note from a VA dr. stating psoriasis associated.with shrapnel wounds.The BVA stated.This is nexus evidence that was previously lacking. They reopened the claim and then stated,Must be remanded to get opinion etc etc.(Iam leaving a lot out in the interest of time)

We got that opinon and then the AMc denied and sent the ssoc.Last thursday we went to our VSO.He wrote NoD.I think it was really professionally worded and to the point.He said he woild send it off and that we wait.He said we aren't giving up and we will win this.

The BVA language really sounds good and I even think the AMC is trying to grant it.I know they have to follow the law but they do keep telling us to give them more info.

That dr. just made me so mad because he didn't even address the issues the AMC asked him to address.

That is why I say his comments are really the only negatives we got.

WE think after it is sent back to the BVA or maybe while it is still at the AMC they will ask for another.c&p since they will have the nod that our vso wrote.

I was just hoping that maybe possibly they could reverse their decision with the evidence they already have and not have to have the precise language.but I guess not and we will be in for a lot more waiting.Jim's rheumatologist at the va is on our side and I think will help.He had told us to wait to see what the c&p dr. said.He thought that he would call him.but I know he didn't.His rheumatologist is at the bigger va hospital 4 hours away and we won't be seeing him for a while.

Thanks for everyones input.

Mary

Edited March 20, 2007 by mjdt

[Vike17]

Mary,

"In 1988 we had filed a claim for arthritis.It really was a dumb claim as we didn't know what we were doing and didn't use a vso.We filed the claim. He never had a C&P.THE RO then denied it because it was more then a year after discharge.We didn't know anything then about direct and secondary claims then.We didn't even know about the CFR.I'm sure the RO thought it was a frivolous claim and denied it. we didn't really file a NOD .IT was sent to the BVA and of course it was denied.We droppedit and it closed"

Prior to 2000 and the Veterans Claims Assistance Act (VCAA), claims had to have been "well grounded" before VA would schedule a C&P or even begin to process them. Apparently, your husbands claim wasn't well grounded back then and they denied the claim without having a C&P exam done. It looks like the VA, at the time, tried to apply the presumption rule to award service-connection, and it looks like that wasn't possible because there wasn't evidence within one year of your husbands discharge that showed arthritis at least at 10% disabling.

When you say "we didn't really file a NOD .IT was sent to the BVA and of course it was denied," this contradicts itself. You had to have filed a NOD and Form 9 for the claim to be sent to the BVA. So you must have filed a NOD and received a SOC from your RO and after receiving the SOC you then submitted VA Form 9.

Could you provide the docket number and date of the decision? Then I could read the BVA's decision and actually see what's what.

From the looks of things, your husband is missing the nexus between the two asI stated in my firsy post. The bottom line is he'll need an IMO to connect the two to each other. Without that nexus the VA's hands are tied and cannot grant service-connection.

If you could provide the docket number and so forth from your husbands decisions, I'll take a look and see what exactly is going on.

Vike 17

[Berta]

Vike said:

"In order for the VA to envoke the "reasonable doubt" doctorine, the evidence must be in equal balance for and against the claimant"

This bears repeating a lot!

It is a misunderstood regulation.

The evidence must rest in relative equipoise.

The VA must weigh the evidence giving a full medical rationale as to why they have rejected anything that favors the vets claim.

This was one of my points when I complained recently to the Governor of NY- he pays my vet reps-

I have had an on going argument with them regarding basic VA 101-

I sent the VA the same type of medical evidence and assessments that got me a settlement with the USA for wrongful death.

Yeah they argued I was not competent medically but so what- I won 3 claims at that time-because they finally got what I sent them.

This time for my AO clai I have three IMOS-all different and all supporting my AO claim.

The VA denied saying that I had sent internet printouts and am not competent enough to give medical statements(but I did that a decade ago and succeeded ---duh)-

yet failed to ever consider my IMOS-

thus they failed to extend me Benefit of Doubt- they failed to weigh my evidence-

my POAs kep saying to me in nasty letters that they did-

there is absolutely nothing whatsoever that proves that VA ever even saw the IMOs and in Dec they said they never even got them.

My POAs are now under pressure to do their job and my claim moved to someone else to be rated the day after they heard of this letter to the Governor.

How many vets or widows out there represented by NYSDVA got this same crappy deal?

I feel I have proof of what the local VAMC vets around have been saying for years-POAs are in bed with the VA sometimes-

(but I am the one who got screwed and have lots of proof to get unscrewed)

If the VA does NOT ever see your medical evidence-they will not and cannot weigh it under BOD regs

and thus- they can deny in a heartbeat.

The VA is not bound by any reg to extend Benefit of Doubt-if they have nothing from the vet or widow to put on the scale.

I made 17 submissions of medical evidences, past VACO reports as to malpractice, and considerable treatses and abstracts.

As well as Three IMOs.

The VA put Nothing regarding my evidence on their scale and denied me Benefit of Doubt consideration.

And my POA wanted me to just accept that fact and sit on my thumbs.

No WAY !!!!!!

Edited March 20, 2007 by Berta