5.20 Medical Evidence Of Probable Entitlement

allan · April 9, 2007

M21-1-3 Claims Development

5.20 MEDICAL EVIDENCE OF PROBABLE ENTITLEMENT

a. General. A private physician's statement meeting the requirements of 38 CFR 3.326(d) or a hospital or examination report from any of the sources provided in 38 CFR 3.326© may be accepted for rating purposes if it is adequate. In all cases, permit simultaneous development of evidence [38 CFR 3.326(b)]. Both lay statements and medical reports of treatment by an attending physician, if available, may be used.

b. Prompt Submission to the Rating Activity. Evidence or current disability may be contained in reports from a VA or a non-VA medical facility at VA expense or in evidence already of record showing the existence of a chronic condition likely to interfere with employability. If so, submit the claim to the rating board.

c. Requesting Medical Information from Social Security Administration. When considering a claim for pension if there is indication that the veteran is receiving disability Social Security benefits, request copies of the medical records on which the SSA decision was based. See chapter 9 for instructions on making this request.

d. Procurement of Evidence. In the absence of any of the conditions listed in subparagraph b above, medical evidence must be provided before the claim is referred to the rating activity or a VA physical examination is ordered. Follow the procedures in paragraph 1.02 re steps to take to fulfill VA’s duty to assist the claimant. If necessary evidence is not received, deny the claim for record purposes and notify the veteran that the evidence must be provided to reopen the claim.

Berta · April 10, 2007

Thanks again Allan- if I need this M21-1 reference-I printed it just in case-

but I have already argued my point with many other M21-1 regs-still I might need this-

My claim took an odd turn in 2004 when I submitted my initial independent medical opinion. Dr. BAsh had followed the VA's own IMO criteria and gave full medical rationale etc-and also incorporated a recent brief opinion I got from a former VA doc who treated my husband.

The validity of Dr. BAsh's opinion was determined NOT by the RO but by my veterans representatives on my POA.None of them are doctors and none of them moonlight as raters for the VARO.

I have fully documented this all to the guy who pays my reps-The Governor- ( 4 vet reps or more to include also the director of this state vets division in letters and emails fully revealed that it was the vet org itself who had made sure VARO didnt see this IMO.I think they called it insufficient-the VA had never even seen it)

When I obtained an additional IMO 2006 from Dr. BAsh (who by this time had some VA crapola from a VA doc to deal with- which he certainly knocked down)my POA is claiming this is "new and material evidence"

(because I made such a fuss over the other IMO that the POA had to acknowledge this new one)

yet the fact remains that this is an opinion different from the first one-with the critical statement from a former VA doctor in it and also attached to it.

The POA blamed the DRO-but what I got from the DRO does not reflect the presentation of this 2004 IMO that my rep claims he did-the VARO since the first IMO was prepared and sent has never opined on it at all.

I am bringing this up because a vet rep or NSO has NO to right to opine on how VA will view a medical opinion- nor do they have any right to make sure the VA does not consider it.

If you present a valid IMO to the VARO that fully meets their IMO criteria (or even if it doesnt) the VA will make a statement with full medical rationale if they reject it or will certainly state in an SOC what is wrong with it.

The POA is supporting the 2006 IMO only because I put lots of heat on them- the fact remains that the other 2 IMOs are not redundant to the 2006 one yet

my POA wants that IMO and the attached other IMO statement to go away-

they have tried to tell me the VA considered it and rejected it-

The VARO claims they have never seen it.

My point is- if a vet rep knows what an IMO is-and sees that perhaps your IMO needs more input from the doc , this is so that it will conform to VA's criteria- the same one the C & P docs sort of but especially any VA doc opining on your claim is supposed to use-

the IMO can be corrected.

Any vet rep unless they are also a paid VA rater or a moonlighter doctor

qualified to opine on your claim-cannot reject your IMO themselves and make sure the VARO never sees it.

Dr Bash knows more about 38 CFR and the VA Schedule of Ratings, Sec 1151 etc etc then my vet reps do.

He also had prepared for years and years -IMOs that fully comply with the VA's IMO criteria.

I wonder how many other NYSDVA claimants had bonafide appropriate IMos and this vet division made sure that the VA never saw them but told the claimant that the VA had rejected them.

Of course my vet POAs have absolutely nothing to back up

their insistence that the VA rejected my initial IMos.

The VA cannot opine on accept or reject what they do not have.

The director of NYSDVA made a critical error, documented in a letter to me, chastising me for prosecuting my claims-

(someone had to)and stated that the new 2006 IMO from Dr. Bash might 'garner' the same response that the older one did.

As I indicated to the Governor that shows that a veteran's division of vet reps is making decisions that only the VA itself can make-with full medical rationale.

I am being suggested by a state director of a veterans POA that no matter how many IMos I get- they will somehow be s--tcanned by the POA before VA ever sees them.

Thanks again - one more printout to show the State of New York how lousy some of their POAs claims work is

when they themselves defy our rights in 38 CFR and of course in M21-1.

Edited April 10, 2007 by Berta

john999 · April 10, 2007

Berta

What kind of game is your POA playing? To hold back your IMO's from the VA seems almost criminal. How can they dare to decide what is a good medical report and what is a bad medical report seeing they have no special medical or legal training. Can you sue these people after your claim is decided. Why are they putting the whammy on you? Are they trying to settle some old score against Dr. Bash or yourself?

Berta · April 10, 2007

John-this outfit didnt even know who Dr. Bash was-

and they never advise anyone to get a IMO-as far as I can see-

I only found one other IMO claimant whose POA they had-a veteran who had obtained a medical opinion-and like me her claim was illegally transferred to the BVA and of course was remanded due to her IMO never being addressed by the VARO.

Will I succeed in my AO claim ? sure -I have the evidence and can get more if needed. I have better medical evidence for this claim than I did when I sued the VA for wrongful death and won settlement from USA and won 2 other claims with no IMO.

My concern is how many other claimants they whammied----I would prefer to sue them under Class Action and if they have hurt other vets and widows in this state ,that can be done.

This ordeal is quite involved.I sent a 6 page complaint to the Gov and documented it with evidence.

That 6 page complaint does not even come close to what I have been through.

I refuse to drop the POA-what good does that do?

I want them to do it all right regarding my claims

and remember what they learned from me when they try to pull this crap on others too.

I specifically told the Gov how ALL NYS veterans and widows on their POA might well have had their claims hindered by their negligence.

And I certainly can fully document that fact too.

Edited April 10, 2007 by Berta

allan · April 10, 2007

I would prefer to sue them under Class Action and if they have hurt other vets and widows in this state ,that can be done.

Hello Berta,

I'm in the same situation when it comes to Dr Bash's IMO's not being excepted as evidence at the RO level. They refuse to give weight to their own C&P examiners opinions, privite treatment records over a 30 yr span & treating Dr's opinion, which supports the VA's C&P examiners favorable opinion..

Remands from the BVA & their instructions are being completely ignored. Nearly a yr ago, the BVA remanded back to the Appeals Center, stating the RO was in violation of law for not viewing, listing or granting weight to favorable evidence. It's completely obvious to me, that what is being done, is illegal. It's called obstruction of justice & possibly theft of funding for veterans.

How in the world are these people allowed to steal from disabled veterans & their families, do it repeatly to vets across this country, & no one in Congress lifts a hand to stop it?

I do not live in your state, but will send a noterized statement if it will help. If it turns into a nation wide class acction, I would like to join in. I say put some of these bums in a federal prison.

Allan

john999 · April 10, 2007

Some advocates would not believe what we know the VA and some of the POA's do to deny or screw up claims. Ignoring evidence is the biggy I see at my RO. My RO takes very clear evidence and turns it inside out to find some reason to deny a claim. It is always obvious what they are doing because they go over the evidence with a fine tooth comb and select out one sentence to deny a claim while ignoring the bulk of the evidence. In one case they denied a IMO saying the vet was doctor shopping. I used the same doctor and they accepted my IMO. If money is involved my RO just goes the extra mile to deny a claim. My DAV POA was hopeless. All they did was shuffle paper. It is all on the veteran to win his/her claim.

Berta · April 10, 2007

Allan-thanks for that offer- will keep in mind-

what I really want is simply better representations for vets and widows -and not really as result of a class action suit- but we will see what the future brings! on that

I made this point in an 8 page letter to the Task Force (Dole ,Shalala,Craig as they have asked for input for newly returning veterans) up in the separate topic-

we only have until April the 30th to send them our statements.

I asked for proper VCAA letters to be sent right from the git go by ROs to stop the unconscionable remand situation at the BVA- DUE to mainly- VCAA letters that are illegal.My Evidence for that--BVA web site.and my AO claim.and illegal VCAA letter.

Also I asked for absolute oversight on the ways some of these VAROs handle or loose our evidence or never ever read it and deny the claim.

Couple that with an illegal VCAA letter and the stage is set for years at the BVA only to be remanded anyhow for the proper VCAA notice -the veteran literally starts all over again-back at the VARO-

years after first filing the claim-

My evidence for support -the IG report on VARO survey from 2005.and my present AO claim.and my past SSOCs from the 1990s-and my remand info.

AND I asked them for oversight into the way these vet orgs chartered by Congress (DAV, AL etc) as well as county and state vet rep orgs fail to adequately advise veterans and widows in the first place and stand by when the illegal VCAA letter comes, and they themselves compound again the growing BVA backlog to the detriment of veterans.

I stated that while many new veterans can expect to find good VA medical care as well as proper VA claims process the reality is, that is just not the case for every disabled vet and the new returning Terror war heroes will be at some point just as exempt from proper claims adjudication as many of us already have been.Their Widow and widowers probably too.

Of course I told them how the VA killed Rod and how the VA wont read my evidence-etc etc etc and what my vet reps did---blah blah-

but my point was

if the VA even fails ONE of these returning service disabled men and women from the Global War on Terror by poor claims work, and/or poor medical care-and that failure might well be down the road years from now---- and that it even might be compounded by piss poor vet org representation-

it is just unconscionable that even ONE of these men and women would be failed at all.

It just drives me crazy to think that a disabled veteran-like a woman veteran I saw at the Fallen Heroes Rehab center missing an arm and a leg from Iraq-interviewed on TV -or a veteran who had just returned with obvious PTSD and yet might be given some BS PD diagnosis-and no real PTSD care- that these veterans will have to go through what we all have gone through with the VA and maybe that will be at some point down the road when they are not getting media attention anymore as heroes and society has begun to forget them and that is when their service disabilities as well as their claims problems might get much worse.

JMO