Second C&p Exam Ordered After Submitting Imo

[tssnave]

After reading hadit for a couple of months I am beginning to see some trends that the VA seems to use to get our claims off track. For those of you who are long time readers, this may be old hat. But, for my benefit and the benefit of other newbies (and those who read for weeks like I did before joining), I ask you:

1. Have you ever had the VA order a second (or subsequent) C&P exam after you sent in an Indepedent Medical Opinion (IMO) that supported your position?

2. Did the VA use the additional C&P exam to refute your IMO? Or, more to the point as I understand the VA rating system, did they "weigh" their own evidence more than they did your IMO?

3. Did they rate in your favor or against you?

4. Did you, in response to their additional C&P get another IMO? Something just struck me, of course you didn't because at that point an additional IMO would not be considered new and material, it would be cummulative of the evidence already submitted and not be accepted as evidence. Please tell me I'm wrong here - it seems to me that the VA can order as many additional C&P exams as they want with a panel of multiple doctors no less (2 folks have shared they have had panel interviews with 2-3 shrinks) to shore up the weight of their position while not giving you that same opportunity. Am I correct?

5. Were you upheld at BVA or is your claim still pending.

Thanks in advance for the feedback. I'm curious to see just how frequently they order additional C&P exams after you send in an IMO that supports your claim.

ts

[Berta]

This practice in the olden days of the electronic veterans community was known as a VA "fishing expedition".

Not matter what the vet presented the VA would attempt to continually knock down the claim with VA quakola.

It happened to me many times in the late 1990s many times. I had to knock down 3 or 4 VA medical opinions before I succeeded.

I almost expect this to happen again-

I have one negative VA opinion- although the wording of this opinion DOES contain support for the claim.

I have 3 IMOs to prove my claim.One based on knocking down this VA IMO.

I have additional medical evidence that-even if I didnt have 3 IMos- should award my claim under Benefit of Doubt.

I am in rating board now.

All the VA can possibly do to deny again is either invent a completely new disease never heard of before-and say the veteran died of this new unknown disease and is the only person in the world who ever got it-I really dont expect that-

or go on "their" fishing expedition and find another VA doctor willing to opine against the claim and its staggering probative medical support.

I have a file with some medical records , a check attached to it, and the address of an additional IMO doctor if I need another IMO.

That has already been set up -but as much as I want to get this 4th IMO now -I need to see the VA quakola medical rationale -if they do get another VA IMO.Maybe the specialist I have in mind for the next IMO is not the one I need- that depends on what the VA says.

They have never acknowledged any of my medical evidence yet for this claim and certainly have not knocked down my IMOs yet at all-but

this is all a big game and it is a war game full of potential land mines for vets as to the way they try to play their game.

I recall that the BVA or CAVC took quite a stand against the fishing expedition practice years ago but that does not mean they can't pull this crap anyhow.

If a C & P is inadequate they can order another C & P:

http://209.85.165.104/custom?q=cache:-Bpkw...381742111066612

However it all gets back to the law in Title 38 USC that controls 38 CFR and M21-1:

§4.3 Resolution of reasonable doubt.

It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. See §3.102 of this chapter.

[40 F R 42535, Sept. 15, 1975]

§4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran’s service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law.

----------------------------------------------

If the medical evidence from the claimant outweighs theirs-the claimant succeeds.

"1.03 EVIDENCE IN BALANCE

a. The reasonable doubt rule is found at 38 CFR 3.102. Every person involved in the adjudication of compensation and pension claims must be thoroughly familiar with this regulation.

b. The benefit of the doubt belongs to the claimant. If there is a balance of evidence supporting and against a factual issue, VA must make a factual determination in favor of the claimant. In Gilbert v Derwinski, No 89-53, the Court of Veterans Appeals (now the Court of Appeals for Veterans Claims (CAVC)) likened the reasonable doubt rule to a rule "deeply embedded in sand lot baseball folklore that the 'tie goes to the runner'.” If the ball clearly beats the runner, he is out and the rule has no application; if the runner clearly beats the ball, he is safe and again, the rule has no application; if, however the play is close, then the runner is called safe by operation of the rule that 'the tie goes to the runner'.” After obtaining all relevant evidence, evaluate the evidence and determine if the evidence in favor of the position held by the claimant is of greater weight than the evidence to the contrary. If the evidence supports the position of the claimant, the claim is allowed. If the evidence does not support the claimant, the claim is disallowed. If the evidence is approximately balanced, resolve doubt in favor of the claimant."

from: http://72.14.209.104/custom?q=cache:aUSCuD...381742111066612

NONE of my IMos or any of my evidence has ever been weighed yet since Feb 2003 when I filed my AO claim.

The VA stated that since I had no evidence they would not extend me even the consideration of Benefit of Doubt.My POA stood by and allowed them to get away with that yet my POAS files are full of the IMOs and considerable other medical evidence I submitted that VA has also.

They will eat those words.

MAke sure that they are not only acknowledging your medical evidence as these regs say they should but also that they extend to you the entire gamut of Benefit of Doubt consideration.

[hurryupnwait]

After reading hadit for a couple of months I am beginning to see some trends that the VA seems to use to get our claims off track. For those of you who are long time readers, this may be old hat. But, for my benefit and the benefit of other newbies (and those who read for weeks like I did before joining), I ask you:

1. Have you ever had the VA order a second (or subsequent) C&P exam after you sent in an Indepedent Medical Opinion (IMO) that supported your position?

2. Did the VA use the additional C&P exam to refute your IMO? Or, more to the point as I understand the VA rating system, did they "weigh" their own evidence more than they did your IMO?

3. Did they rate in your favor or against you?

4. Did you, in response to their additional C&P get another IMO? Something just struck me, of course you didn't because at that point an additional IMO would not be considered new and material, it would be cummulative of the evidence already submitted and not be accepted as evidence. Please tell me I'm wrong here - it seems to me that the VA can order as many additional C&P exams as they want with a panel of multiple doctors no less (2 folks have shared they have had panel interviews with 2-3 shrinks) to shore up the weight of their position while not giving you that same opportunity. Am I correct?

5. Were you upheld at BVA or is your claim still pending.

Thanks in advance for the feedback. I'm curious to see just how frequently they order additional C&P exams after you send in an IMO that supports your claim.

ts

I'm I safe to assume that your first C&P exam was not in your favor and that is why you had a IMO done? As I understand it, the VA is sending you to another C&P exam to possibly refute your IMO. At what point does this exam/ refute cycle stop?

My case may be entering this exam/refute cycle too. I have a favorable C&P exam, but now I hear that AMC may be sending me back for a second exam, possibly to refute the first one.

[Ricky]

This can happen many times. The VA has the authority to order a C&P at any time to insure the veterans disability meets certain levels required for a rating. About the only way to stop this is to have your additional IMO's attack the VA evidence directly - This does two things in that it provides a basis for you argument agains the short lived examination by, more than likely, a unqualified examiner and it makes the new IMO's new and material requiring that it be weighed, probated and discussed in the rating.

[allan]

Hello TS,

To answer your questions. Yes to all 5 questions.

Claim has been before the appeals center since 2002 & in limbo at the Appeals Center for nearly a yr, in "ready to wait" status after being remanded from the BVA for St Petes violation of viewing & giving weight to primary evidence.....Three IMO's from Dr Bash.

Claim for Multipl Sclerosis was decided on in 2005, but is pending untill the AMC finishes refusing the evidence.

They've been handling my claim like this since 1997.

[Pete53]

VA Quackola absolutely hits the nail on the head. Thank you Berta.

TS as I said in earlier thread I was ordered to appear before a Board of Three VA Shrinks in Dallas but it did go my way as the three would have to go on Record saying one of their bosses VA full of crap and my outside Medical Doc well known in Dallas was also out of line with his opinion.

So if professionally done another C&P does not mean it is going to deny in fact considering my first C&P by a Quackola Doc it was necessary.

My suggestion is to read your C&P and decide if it fits or not. In fact if you get a bad C&P you should save time and ask for another one.

I also agree with Berta that the quality of Docs doing C&P's has improved but that does not mean they are all good.

Thank you for your observations and your question. This is the meat of your claim and it is important to discuss it so that Members can have an idea of what they might be up against.

Please read your C File it is very important.

Pete

[Josephine]

Hi all,

I don't dwell on my experience, but have promised to post my experience. I was discharged from the navy by the recommendation of a competency review board reason, ' Unsuitability". Code 460. Emotional Instability. I do not have a PD on my DD-214.

I was told if I took the early discharge, and this would be by the personnel office, that I would be giving up all of my G. I Benefits. This is believed for years and I still have the orginal paper that I signed stating that the personnel office could destroy my medical records.

I did file for service connection benefits for nervousnes and depression in 1978. Within one month, I received a letter from the VA, " You are not service connected".

I went on line in 2002, and saw it posted for women vets that had filed before to file again.

December 2002, I filed again for same, which was listed as anxiety with depression. I was told also that I would be considered for a pension.

March 2003, I received a huge statement, Service connected for anxiety with depression is denied, but you are granted 100% non-service connection for anxiety with depression, unemployable since 1983.

I was not going to accept this and I demanded to see my claims file. After much argument, I told the VA that I would be in their office within the hour and that I would not leave without seeing it.

When I arrived, I listen to the same static, but when they realized that I would not leave, one of the counselors went and secured my claims file

I ask" Where are my Compentency Review Reports'? He stated," There are not any". I said," those doctors sure didn't think much of me." He said, " I guess not".

I came home and sit down and hand wrote a letter to the St. Louis archives and told them exactly what I needed. In about two weeks, I received all the psychiatric records by Dr. Jones and Dr.McMahon and my Commanding Officer.

I made copies of all the records and personnally took them to the VA. I had each copy date stamped and placed everything in a lock box.

This would be in June. With the help of one of the counselors a NOD was filed out due to " New and Material Evidence never seen by the VA.

October 7, 2004. I received a Statement of the Case. The DRO stated " service connection for anxiety with depression is denied" The Dro did nt use any of my private medical records from 1965 to 1978. The DRO stated" THIS IS NOT MY FINAL DECISION. WE ARE RE-OPENING YOUR CLAIM DUE TO NEW AND MATERIAL EVIDENCE FOR " AN ACQUIRED PSYCHIARIC DISORDER AND YOU ARE BEING SCHEDULED FOR A C&P.

I AM ALSO INCLUDING A FORM - 9 TO BE TURNED IN WITHIN 60 DAYS.

October 18, I went for my first C&P with Dr. M, with a diagnosis of Generalized Anxiety not otherwise specified with depression. Decision" More than likely, her anxiety with depression had its origin in serivice. It is not clear to me why the VA has ask me to evaluate this veteran from 1978 to 2004, when it is clear that this veteran has been treated for anxiety with depression since 1966 and was discharged in late 1964 and was pregnant 1965 and 1966. Again, I state it is this examiners opinion that being that this veteran was seen by two psychiatrist prior to discharge that more likely she was also suffering from anxiety in service also.

I waited for a decision from the DRO, but it did not come. I had to turn in the Form - 9 within 60 days and did so.

5 months later, the R.O sent me before a board of two, did not allow anyone to be present with me and gave me an Axis 1 anxiety not otherwise specied and Axis 11 - borderline personality disorder.

The board feels this veterans primarily symptoms are those of a personality disorder and find that she was discharged by reasons she considered indicative of abuse.

We feel that her anxiety did not begin or worsen during service.

R.O decision.

Personality Disorder. We place our weight with the board as they are a board of psychiatrist. The R.O was in error as they did not send me back to the two psychiatrist for any battery of testing as the Minn, etc.

The BVA, in my opinion did a xxxxx job on my remand, but oh well. My buddy letter is not mentioned in the remand and quite a bit of other important info is not included.

The Appeals Management Center is doing an investigation, as to the why's of the second examination, why no one could be present and why they have a sworn statement from the nurse on duty at the VAMC as to the state of my conditon after this C&P. Why this veteran could not remember anything and why did the VAMC sent me a notice of my clinic appointment and not a C&P notification of what I was there for, who with and the what's of all of this. The R.O told me that I was going down for treatment. Not true!

It will all come out in the wash.

The Appeals Mangement Center has went back to my original claim anxiety with depression.

BVA on remand.

After 3 tries, the Appeals Management Center has acknowledged receipt of my personnel records and request for discharge from this duty station.

I am not stating that the VA is unfair. I am just posting my story.

I do not advice anyone to enter a room with two doctors, you have no witness.

I ask for another C&P for 9 months after the second one, but when I received the Supplemental Statement. The Service Manager stated we know that you consider the last C&P erroneous, but it was alright for rating.

Josephine

Edited April 20, 2007 by Josephine