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Is This Categorical Dismissal Of Lay Evidence


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86 replies to this topic

#1 mos1833

 
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Posted 25 March 2012 - 03:15 PM

below is what i think is a true injustic
this claim is back at the court again after being denied using this as evidence against my claim, i keep asking my self (can they do this)
from what i know and read about lay evidence, this is just wrong,the medical opinions never considered the lay evidence either.

what do you think ?


The mere contentions of the Veteran, no matter how well-meaning, without supporting medical evidence that would etiologically relate his current complaints with an event or incurrence while in service, are not of sufficient probative value to rebut the February 2002, January 2009, and July 2010 medical opinions. Caluza v. Brown, 7 Vet. App. 498 (1995); Lathan v. Brown, 7 Vet. App. 359 (1995); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1994); King v. Brown, 5 Vet. App. 19 (1993). In this case, there is no evidence that the Veteran, his family, or friend have any medical expertise, or are otherwise qualified to render a medical opinion. Consequently, his statements and the statements of his family and a friend, without some form of objective medical corroboration, are not deemed to be of significant probative value.

#2 Teac

 
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Posted 25 March 2012 - 03:52 PM

below is what i think is a true injustic
this claim is back at the court again after being denied using this as evidence against my claim, i keep asking my self (can they do this)
from what i know and read about lay evidence, this is just wrong,the medical opinions never considered the lay evidence either.

what do you think ?


The mere contentions of the Veteran, no matter how well-meaning, without supporting medical evidence that would etiologically relate his current complaints with an event or incurrence while in service, are not of sufficient probative value to rebut the February 2002, January 2009, and July 2010 medical opinions. Caluza v. Brown, 7 Vet. App. 498 (1995); Lathan v. Brown, 7 Vet. App. 359 (1995); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1994); King v. Brown, 5 Vet. App. 19 (1993). In this case, there is no evidence that the Veteran, his family, or friend have any medical expertise, or are otherwise qualified to render a medical opinion. Consequently, his statements and the statements of his family and a friend, without some form of objective medical corroboration, are not deemed to be of significant probative value.




The courts have ruled for years that unless someone has medical expertise they are not qualifed to offer medical opinions. However, opinions concerning general information has been excepted. For example, say you fell and hit your head. and a hour later you passed out for a minute or two, you saw no reason to seek medical treatment. You then relate this story to family or friends, or maybe they even saw you fall.

years later you started having problems with your hearing, and friends and family members then opined that the fall caused your hearing problems..... and if there are no medical records to conclude that you hit your head, then even the opinon that someone saw you fall would be of no value for compensation purposes because you would still have to prove the fall occured when you were on active duty...

Is this a fair denial... yes...

Now if in fact , you had gotten medical treatment when you first hit your head.....and years later had hearing problems a doctor based on the medical records could opine if the head injury years earlier were the cause of your hearing problems..... so you see lay statements while informative have no probative value unless there is collaborative evidence.

Edited by Teac, 25 March 2012 - 03:55 PM.


#3 mos1833

 
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Posted 25 March 2012 - 09:12 PM

teac thanks for the reply

first you are right ,that the court has held for years that a lay wintness must be medical quailifed to offer an opinion.

from what ive the court changed that when it decided ( davidson )


In Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006), the U.
S. Court of Appeals for the Federal Circuit (Federal Circuit) held that "
the Board cannot determine that lay evidence lacks credibility merely
because it is unaccompanied by contemporaneous medical evidence." It
necessarily follows that a medical examination that fails to take into
account relevant lay assertions is of little probative value. See Dalton
v. Nicholson, 21 Vet.App. 23, 39 (2007) (finding that a medical
examination was inadequate where the examiner "impermissibly ignored the
appellant's lay assertions that he had sustained a back injury during
service")

#4 Teac

 
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Posted 25 March 2012 - 11:38 PM

teac thanks for the reply

first you are right ,that the court has held for years that a lay wintness must be medical quailifed to offer an opinion.

from what ive the court changed that when it decided ( davidson )


In Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006), the U.
S. Court of Appeals for the Federal Circuit (Federal Circuit) held that "
the Board cannot determine that lay evidence lacks credibility merely
because it is unaccompanied by contemporaneous medical evidence." It
necessarily follows that a medical examination that fails to take into
account relevant lay assertions is of little probative value. See Dalton
v. Nicholson, 21 Vet.App. 23, 39 (2007) (finding that a medical
examination was inadequate where the examiner "impermissibly ignored the
appellant's lay assertions that he had sustained a back injury during
service")



I would have to read the whole case to understand the reasoning behind the decision. No disrespect to you But I can't take what you posted at face value... becaue if what you say is true, veterans including myself would not be jumping through hoops getting medical opinions.. we would just find a buddy and have them write a statement,.,..

#5 Chuck75

 
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Posted 26 March 2012 - 05:33 AM

This is always a bone to fight over.
The VA has carried things even farther in some denials, calling a medically qualified "expert"'s opinions "speculation".
In any event, a lay person's description of an event or condition that is tied to military service needs to be limited to what any person would observe/perceive.
Non medical language should be used when at all possible and understandable.

#6 Philip Rogers

 
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Posted 26 March 2012 - 06:15 AM

I agree w/the others. A lay person can state in lay terms what they saw, heard, read, witnessed, etc., and the VA must accept it or explain why not.

pr

Edited by Philip Rogers, 26 March 2012 - 06:15 AM.


#7 mos1833

 
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Posted 26 March 2012 - 09:05 AM

thanks for the help all

what i posted below is in the boards reasons and bases.
the board said the mer lay testamony has no value.

then i posted what was decided in buchanan v nicholson.
i gave testamony along with four others who new me before and after service.

the board sain with out medtcal knowledge or otherwise qualified ,
none of us were credibal witnesses.
to me that is categorical dismissing lay assertions. (davidson )

#8 Hoppy

 
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Posted 26 March 2012 - 09:56 PM

mos 1833,

are not of sufficient probative value to rebut the February 2002, January 2009, and July 2010 medical opinions. Caluza v. Brown,

They weighed the lay statements against the doctors reports and gave greater weight to the medical reports. This is not a categorical dismissal. Without a summary of the lay statements and the medical reports you are not posting enough information for anybody to really understand what was at issue in your claim. Do you have a docket # ?

I wrote a letter last year as to observable symptoms of a veterans condition over a three year period that was cited by a DRO as "credible lay evidence". The veterans claim was raised from 50% to 70% without any new medical exams. In the same letter, I also contested a previous C&P exam from a forensic psychiatrist. The C&P examiner blamed the veterans more severe symptoms on a personality disorder. I noted the protocol from the DSM IV for making a diagnosis of personality disorder which was ignored by the C&P examer and attacked the C&P on lack of examination and the fact that the veteran had at least five prior exams by qualified treating specialists which all included proper reporting of symptoms and not one of the treating specialists gave the veteran a diagnosis of a personality disorder. The C&P examiners report was not given weight. Lay statements and arguments rebuting medical evidence made by an advocate can be given weigh if properly written.




Page 688 of the DSM IV TR states “The clinician must be cautious in diagnosing Personality disorders during an episode of a mood disorder or an anxiety disorder because these conditions may have cross-sectional symptom features that mimic personality traits and may make it more difficult to evaluate retrospectively the individuals long term patters of functioning”.

Edited by Hoppy, 26 March 2012 - 10:16 PM.


#9 Pete53

 
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Posted 27 March 2012 - 02:00 AM

The key to winning is to give your lay evidence and get a written medical opinion that will support your lay evidence with the Doc's opinion and a medical diagnosis linked to now and your service.

Get a Medical Opinion

#10 Berta

 
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Posted 27 March 2012 - 06:03 AM

I agree with Pete and Hoppy.


Does this involve the congential transitional vertebra claim you mentioned in the past here?


http://www.hadit.com...interpretation/


If so, could the lay statements,in any way, bolster the IMO you have,if you approach the same doctor you mentioned in that post again?


It seems to me that a C & P examiner would have to resort to speculation ,just as the IMO you mentioned, did.


As Hoppy said:


“Lay statements and arguments rebuting medical evidence made by an advocate can be given weigh if properly written.


I personally know this is true.


However, a strong IMO from an expert in the field can cut through a lot of VA BS.


All the IMO doctor has to do is state” at least as likely as not” with a medical rationale.


Which to me could be reworded by the doctor in the IMO you already have-as you stated:


“but the best iml i can get is IT MAY BE related, and thats not good enough “


Did VA knock this IMO down already? I am not even sure if this is the same issue you are attempting to gain SC for.


Was there any “superimposed disease or
injury during military service that resulted in increased
disability.” VAOPGCPREC 82- 90 (July 18, 1990), 55 Fed. Reg.
45711 [a reissue of General Counsel opinion 01-85 (March 5,
1985)].
Do you have any Buddy statements to that affect?


An IMO, particularily if the vet is paying money for one,needs to conform to the IMO criteria here at hadit and use the wording the VA is familiar with.


Many docs ,willing to prepare an IMO, but if they never did one before for the VA,do not understand exactly what type of IMO a vet needs for VA purposes or the lingo it should contain.It pays to spell out carefully in a cover letter attached to the medical records, what the claim is for and what you are trying to prove to the VA.

#11 Hoppy

 
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Posted 27 March 2012 - 09:09 AM

I came back to this thread to clarify that I am of the opinion that it is better to bolster the medical evidence than to rely entirely on an arguement that the VA did not properly apply the law. You can bolster medical evidence and argue that the previous decision did not comply with the law at the same time with the expectation that one or the other will win the claim.

In a situation like this I have the IMO doctor read all the medical reports including the reports the VA is using as evidence against the claim and shoot holes in those reports. If you cannot get a new IMO the least you can do is argue any issues raised in the previous medical reports used as evidence against the claim that are not supported by research or clinical findings and are theoritical and speculative.

Edited by Hoppy, 27 March 2012 - 09:09 AM.


#12 mos1833

 
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Posted 27 March 2012 - 12:16 PM

thanks again all

berta YES this is the same claim---95-42 640 at the board.
its now at the court again ---11-2847
i have a lawyer working my case.
i got ssa useing va medical records,which included the only imo i have.
the ssa used his opinion as controlling.
the va said it was speculation.
like i said before,i do have 5 lay witness statements.
i get confused trying to explain things,so if iam not clear about something please bare with me.
the last c&p exam was a joke,she was rude and didnt care what i had to say.
they sent my claim to her for an opinion on any inconsistencys so she just revuied the other (head hunters reports) AND GAVE THE OPINION BELOW.
I THINK THIS WAS PURE speculation on her part,and made a slander opinion toward me and my doctor.






The examiner indicated that the only inconsistency in the above-cited statements was in the undated statement that the inservice back trauma may have contributed to or accelerated advancement of degenerative joint disease of the lumbar spine, which she stated was an ambiguous statement at best made by a provider who it appeared may have had a personal professional relationship with the Veteran

#13 Berta

 
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Posted 28 March 2012 - 05:47 AM

“which she stated was an ambiguous statement at best made by a provider who it appeared may have had a personal professional relationship with the Veteran “

Cripes- anyone of us with VA or non VA health care has,hopefully, this type of relationship with their provider.
But it seems she is trying to knock down a SSA medical statement.



The VA statement is very argumentative -however, the SSA opinion doesn't seem to help the VA claim.

“i got ssa useing va medical records,which included the only imo i have.
the ssa used his opinion as controlling.
the va said it was speculation.”

If you cant get an IMO that conforms to the VA IMO criteria,your lawyer can argue that this VA examiner's opinion is as speculative as the opinion they disregarded.

I wonder what the examiner would have said if this had been a costly IMO.
Probably the same thing. Or worse.

Is this a SSA doctor's statement or a private doc's statement?

Do you have a copy of exactly what the SSA opinion says?

Do you have copy o the actual VA examner's opinion?

As I mentioned here before, the VA raters can parse and manipulate medical opinions, even from their own doctors.
That doesnt happen often but if a vet doesnt have copies of the actual opinions, they remain in the dark as to what the opinion really said.
If the SOC fails to state even one point of possible contention in the VA opinion, the VA has prevented the vet from a possible point of appeal.
That happened to me years ago and I am still angry about it.It wasnt the VA doctor's fault. He was not given the prime evidence to opine on.VA pulled this on VACO too and luckily I took the bull by the horns and got that fixed.

Dr. Bash and I are working on something that might change the way VA handles VA and QTC medical opinions.

I await responses to my letters to VHA and the VBA on that. This eventual change wont happen overnight and I know it will take more of my time to pursue this -but it is important.

We ,as claimants, need to have full Due Process and that only comes with having the exact same information that VA has,regarding C & P exams, as it is the C & P exam that controls most of the decisions they make on our claims.

Often only strong IMOs can overcome VA medical BS in a rating decision-as long as the medical evidence warrants it.

I dont think that is fair but that is the reality of the VA these days.

Edited by Berta, 28 March 2012 - 05:53 AM.


#14 mos1833

 
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Posted 28 March 2012 - 09:22 AM

berta, thanks so much

the doctor that gave my opinion is a va doctor.
i eaw him for more than two years.
when i filed this claim he was all i could afford,free
the va awarded me a pension,useing his opinion ,so did ssa.
hes the head of his department.

hadits the best. thanks

#15 Hoppy

 
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Posted 28 March 2012 - 09:03 PM

I am not sure of the specifics. However, it sounds like you are trying too link a back injury that was witnessed by the folks who provided buddy letters to a current diagnosis of a back condition. The witness's can attest to the nature of the accident. Once the accident is established by the witnesses then you need a strong IMO from a doctor who has reviewed the witness statements and links the prior injury to the current condition. Hopefully the claim is not clouded by other non service related back issues.

A VA attorney who has experience as an ambulance chaser in personal injury suits should have a significant file of studies linking injuries to long term and delayed degradation of back injuries. One solid study will shoot down the opinion of the examiners calling a relationship speculative. The problem is that the VA treating doctor does not know that they need to back up there opinion by with research or at least provide a cirriculum vitae showing they can base there opinion on clinical experience. The best way to deal with this situation is to get a lawyer who understands the necessity of referencing research or works with a high power doctor who has a long history of specializing in treating and longitudinal following up of patients with a prior history of back injuries.

As of now it appears that you are caught up in a battle with doctors who are not denying the claim by denying the validity of the witness statements as they relate to the current diagnosis rather they are denying the claim by playing dumb and taking pot shots at the report written by the VA treating doctor..

#16 mos1833

 
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Posted 28 March 2012 - 10:09 PM

thanks hoppy

you are so right. ived been stuck in the middle from day one.
i cant belive all the different ways they can delay the process.

#17 Berta

 
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Posted 29 March 2012 - 09:13 AM

In the Veteran's Law Update , this case has been posted under the recent Federal Circuit Court decisions.


“Sickels v. Shinseki, 643 F.3d 1362 (2011) (Sickels holds that a claimant must challenge the qualifications of a VA examiner at the Agency level if he wishes to argue the same before the Veterans Court. Absent an objection at the Agency level, the Federal Circuit reasoned, the VA is entitled to rely upon the presumption of regularity of its VA examiners).

  • Note: Sickels requires claimant representatives to be attentive to VA examinations performed by non-medical doctors, or even by physicians who are not specialists in an area requiring a specialty. For example, if a VA claimant undergoes a psychiatric examination, the report should reflect that the examiner is a psychiatrist or psychologist. If not, the representative should submit a written request to the VA for the examiner’s curriculum vitae or for some other documentation reflecting the examiner’s education, experience and training in mental health care.”
http://www.veteransl...tent/law-update


This part bears repeating here:


“If not, the representative should submit a written request to the VA for the examiner’s curriculum vitae or for some other documentation reflecting the examiner’s education, experience and training in mental health care.”

YES! And they should cite Sickels but I have not had time to fully understand these 2 important decision-and will post a topic on them as soon as I can.


I think every VA examiner should provide a CV along with their opinions.


After all, IMO doctors are more then willing to do that.


For one of my past claims I was trying to prove my dead husband had DMII from Vietnam but he had never been diagnosed with it.I claimed it had contributed to his death.

Long story -I proved it. And I laid out my lay opinion and medical evidence to Dr. Bash the first time I ever contacted him.
But my point here is that VA got an Endocrinologist to go against the claim.You would think an Endocrinologist would have the best expertise of all to opine on a diabetes claim.
I ran her through healthgrades only to find she had a limited CV which didnt really focus on diabetes and endocrine disorders. I knocked the opinion down and then asked Dr. Bash to prepare an additional opinion (they neglected to even consider his initial opinion)because Dr. Bash, unlike this VA endocrinologist, had a full background in interpreting MRIs and X rays of diabetic veterans ( he said he had interpreted "thousands of them" in the IMO that revealed the type of brain damage my husband had , that untreated and undiagnosed DMII can cause and heprepared his second opinion on the MRI and other evidence in the veteran's med recs.


My point is YES, challenge the credentials of these VA C & P doctors.
If you cant get a CV out of them,then for a few bucks they might have a healthgrades rundown you can use.


As I said on last night's SVR show with Mike Harris-these C & P doctors are the ones who control our claims, much more than the raters do.
If they prepare an improper C & P exam report,and give a faulty exam, and are not qualified to even opine on the claimed disability- it can harm the veteran and the vet's family for years ,in attaining their rightful benefits.

Hoppy is right!

#18 Berta

 
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Posted 29 March 2012 - 10:37 AM

I need to clarify what I meant by raising Sickels V Shinseki-
this is a detailed legalize decision but it makes sense and this is the point:



"Mr. Sickels failed to raise his concern regarding the medical examiners' ability to understand the AMC instructions before the Board and we conclude that his failure to do so relieves the Board of its burden to address the issue."

In that respect however, I believe Sickels reinterates the fact that a claimant or their reresentative has the right, ASAP,to challenge a C & P examiner's opinion by challenging their credentials as well as the way the exam was performed.

I am still re-reading the Fed Circuit opinion but here it is in part:



SICKELS v. SHINSEKI
643 F.3d 1362 (2011)
United States Court of Appeals, Federal Circuit.
Decided May 6, 2011.




In part:
The Government argues that this appeal is a challenge to the Veterans Court's application of section 7104(d)(1) to the facts of this case and thus outside of this Court's jurisdiction. The Government would limit the question presented on appeal to whether the Board erred in this case by failing to articulate reasons and bases for finding Mr. Sickels' VA medical opinions to be adequate. However, such a narrow reading of Mr. Sickels' argument is incorrect and unfair. The Board is statutorily compelled by section 7104(d)(1) to articulate reasons and bases to provide for judicial review of its findings and conclusions. Mr. Sickels argues on appeal that the Board may not implicitly find a VA medical opinion to be adequate, but rather must always explicitly explain why each medical opinion is adequate in order to satisfy its statutory duty under section 7104(d)(1). Mr. Sickels thus raises a legal question within our jurisdiction.”

and in part:
Mr. Sickels' argument is similar to the challenge raised in Rizzo v. Shinseki, 580 F.3d 1288 (Fed.Cir.2009). In Rizzo, the appellant argued that the VA must affirmatively establish the competence of a medical examiner before the Board can rely upon the medical examiner's report. We rejected this argument and found that "this court perceives no statutory or other requirement that VA must present affirmative evidence of a physician's qualifications in every case as a precondition for the Board's reliance upon that physician's opinion." Id. at 1291. Thus, when a veteran suspects a fault with the medical examiner's qualifications, it is incumbent upon the veteran to raise the issue before the Board. Id. ("Indeed, where as here, the veteran does not challenge a VA medical expert's competence or qualifications before the Board, this court holds that VA need not affirmatively establish that expert's competency."). We concluded that
"the Veterans Court did not err in not requiring the Board to affirmatively establish [a medical doctor's] competency." Id. At 1292.

We made clear in Rizzo that the VA and Board are not required to affirmatively establish competency of a medical examiner unless the issue is raised by the veteran. Id. at 1291-92. While we did not explicitly state so in Rizzo, it should be clear from our logic that the Board is similarly not mandated by section 7104(d) to give reasons and bases for concluding that a medical examiner is competent unless the issue is raised by the veteran. To hold otherwise would fault the Board for failing to explain its reasoning on unraised issues.”

"Mr. Sickels failed to raise his concern regarding the medical examiners' ability to understand the AMC instructions before the Board and we conclude that his failure to do so relieves the Board of its burden to address the issue. As we stated in Rizzo, "[t]he presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties." 580 F.3d at 1292 (quoting Miley v. Principi, 366 F.3d 1343, 1347 (Fed.Cir.2004)). The doctrine "allows courts to presume that what appears regular is regular, the burden shifting to the attacker to show the contrary." Id. (quoting Butler v. Principi, 244 F.3d 1337, 1340 (Fed.Cir.2001)). The VA medical examiners were provided with instructions granting authority to perform additional examinations and diagnostic testing if necessary. The Veterans Court did not err by not requiring the Board to state reasons and bases demonstrating why the medical examiners' reports were competent and sufficiently informed.
AFFIRMED."

Basically this is a VA case law tenet that, what you do not appeal or challenge in any way, -once the VA says it on paper , means you have accepted what they said in an SOC or any document.

That is why those SOCs have to be often challenged line by line.

I have scanned VA decisions (my CUE claim is good example) and then ,in Office.org, after every quote from the SOC, (usually evey sentence they typed )

I would say WRONG! and then tell them why.

If we dont challenge it, VA fully and correctly assumes that we accept it-whatever their SOC statements involve.



I

#19 mos1833

 
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Posted 27 September 2012 - 10:24 AM

hi all
this is just an update on my claim,and to thank you for all the help.
my claim made it back to judge green ,the same judge that remanded my claim in 2002.
i thought he would be fair again-NOT''' he just resited what the board decided,and never even mentioned my side at all,he denied it and iam still not sure why, any way whats next ? please look at his decesion and tell me what you think, at the court web site just type in nunley mark it the newest decesion what a joke. sorry folks iam upset

#20 Berta

 
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Posted 27 September 2012 - 12:02 PM

All I could find at CAVC was what appears to be the remand:

Not sure if this is your case

Do you have the docket number and any hyperlink to the current decision?

I tried the current stuff at CAVC with no success.

The above remand says:
"a congenital
transitional vertebra at L5, with incomplete bony bridging to S1
demonstrating degenerative sclerosis at this articulation on the left “

and
<a name="term2_1"> “The Court will not at this time address the other arguments and
issues raised on appeal by Mr. Nunley. See Best v. Principi, 15 Vet.App.
18, 20 (2001) ("A narrow decision preserves for the appellant an
opportunity to argue those claimed errors before the Board at the
readjudication, and, of course, before this Court in an appeal, should the
Board rule against him."). On remand, he is free to submit additional
evidence and raise his arguments to the Board and the Board must address
them. See Kay v. Principi, 16 Vet.App. 529, 535 (2002). “



Did you obtain an IMO ,during the remand process ,that overcame that statement they used to deny?

A CAVC remand opens the door for additional evidence.

Have you contacted the attorney you had yet if one represented you at the CAVC to see maybe if they could get another CAVC remand? I dont know if they could.

#21 Stretch

 
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Posted 27 September 2012 - 03:36 PM

Judge William Greene Jr..

http://www.allgov.co...fficialid=28578

I listened to his testimony with the Veterans Committee years ago. Judge Greene was nod and a wink To Larry Craig, former Chairman of the Vets Committee before he was flushed, during all of the hearings that Larry was chairman of.

At that time they were concerned that Veterans were getting into computers and that this would increase their load on the system. Seemed like they were having to reconsider their strategy for decreasing the Veterans Claims. That is where the nodding and winking began.

It was disgusting to watch the things that they were talking about tongue in cheek.

It is good to know what you are up against.

Edited by Stretch, 27 September 2012 - 03:41 PM.


#22 mos1833

 
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Posted 27 September 2012 - 11:03 PM

thank berta,and stretch

the docket number is 11-2847

i wanted to raise the fact that there was no exam at seperation of service.

the way they worded it made it sound like i had one and nothing was found , by saying the sepration exam was normal. i told them to point to it any where in the record ,but they could not. that was one issue i wanted to raise on remand { and did } but nothing happened.

any way judge green just talks about the boards decesion, and never shows how i replied.
he totally was wrong when he explained how my lay testimony was treated by the board.

i wish i could just sit down with the judge and explain it , with out all the leagel mobo jubo.

can i apeal this or what, my lawyer wont call me back, its been a 3 days since i called him,nothing

sorry again for bitching ,thanks

#23 Berta

 
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Posted 28 September 2012 - 05:24 AM

I only read the decision to this point:


"In this case, the only evidence of continuous back symptoms are the statements of Mr.
Nunley and his family, asserting that he has experienced back pain since his military service. R. at
1139-50, 1495-96, 1499"


I know the lay statement -symptomatology stuff in the regulations , but cases like this require an independent medical opinion or at least some documented medical treatment records,prior to filing at CAVC.


I see no evidence here of continuous documentation of medical treatment , even if sparse, that even a IMO doctor could base any medical nexus and rationale on.

I didnt read the whole case, others can here:

https://efiling.usco...tType=dktPublic

They might have a different opinion than I do.

#24 Hoppy

 
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Posted 28 September 2012 - 01:43 PM

MOS1833, Berta and others

I am not sure if this is a claim I did some research on some time ago. However, here are some of my thoughts.

I am not sure what the appeal rights are at this stage of the game. deanbrt had a remand from CAVC and we submitted evidence before the remand was decided. The case was awarded based on the new evidence. It appears no new evidence was submitted by MOS 1833.

As far as I am concerned based on my experience in workmans compensation there could be evidence to back up this claim. Reading the CAVC decision gives me the impression that there are some holes.

Let me start by saying that many doctors who did workmans comp. would place someone on permanent disability if they had symptoms of a strain that lasted several weeks. Individuals who I have talked to years after being rated for a workmans comp back injury with only a diagnosis of a strain had continued symptoms for the rest of their lives. Basically my point is that there is validity to determining that someone has a permanent back disability based on an initial flare up. Many of these back patients do not seek treatment after the initial flare and doctors will even tell the patients not to waste their money seeing doctors and provide the patients with exercises and tell them to use over the counter pain relievers.

Will the military do this? No way. Will a C&P doctor explain that this is typical lending credibility to the veteran’s subjective history in a C&P exam? No way.

I think the fact that a veterans has any diagnosis of a back condition while in the military should be awarded based on their subjective history unless it is clear there was an inter current injury.

I would seek a medical opinion that the veteran’s subjective history is credible. The CAVC did not cite any medical opinion that the subjective history was not credible. The CAVC played doctor. Credibility is should not be interpretative by the court. It should be specifically addressed in a medical opinion.


The CAVC brought up the issue of his working at a fence company. The opinion stated that if he had worked at a fence company he would have reported back problems earlier

Initial reported symptoms was determined to be nine years after discharge. Are they saying that the subjective history provided by the veteran stated he had no symptoms for 9 years. If so, this would need to be corrected if in fact the symptoms did continue immediately after the military. If they are relying solely on symptoms noted in the medical records for the first time 9 years after service this would arbitrary. The veteran stated that the C&P examiners did not mention or give consideration to the subjective history. This would be a significant error. The subjective history should have been addressed by a medical profession as to it’s credibility.

Finally, the three C&P exams relied on the lack of symptoms on the separation exam and the fact that he worked at a fence company. I have not seen the C&P’s to see how thorough the exam was. Did he specifically deny missing any workdays or having any pain while working at the fence company? Did they even do a job duties assessment? What if he was a driver who only did short deliveries which resulted in semi sedentary work with no lifting or repetitious motion? These are the types of activities that would aggravate a back.

Even though the CAVC talked about the 3 C&P’s they did not identify any logic provided by the C&P examiners that would be considered as evidence against the claim. Things like falling at work, heavy lifting, repetitious motion etc. Even though the C&P were considered as evidence against the claim, why are there no details? They mention that the bone injury was mentioned for the first time after service as evidence against the claim. Yet, they call the bone condition congenital. Did they do the same tests in the military as they did post service ruling out the congenital condition. This makes me wonder if there really is a congenital condition. Or can it be determined that he had the congenital condition in the military and would the military have aggravated the congenital and the symptoms noted in the military be evidence of such aggravation.

The CAVC stated that there was sufficient evidence against the claim as to make the fact that the doctors did not address the subjective history irrelevant. What kind of pretzel logic is this? Whether or not the subjective history is relevant is a medical determination. Without weighing the subjective history the doctors could not make an assessment as to whether or not there was credible evidence of significant symptoms prior to what they are calling a bone injury 9 years after service. Is it an injury or a congenital condition? If it is not an injury and it would have been an underlying potential for aggravation while in the military and there was a credible subjective history of symptoms prior to the discover of this bone condition, would this not be something that a medical opinion should address?

An IMO giving credibility to this claim based on the subjective history and showing any flaws in the C&P would be the way I would go.

Edited by Hoppy, 28 September 2012 - 01:47 PM.


#25 Hoppy

 
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Posted 28 September 2012 - 02:00 PM

One thing i wanted to add to the bottom of my previous post, so read it first. the C&P examiners addressed that there was no connection between soft tissue injuries and arthritis. Had the C&P examiners known your subjective history would this raise a possible diagnosis of chronic mechanic strain. I am pretty sure I have heard that congenital conditions do become chronic mechanical strains when aggravated.

#26 mos1833

 
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Posted 28 September 2012 - 10:29 PM

thank you very much berta for adding the link,i dont know how thats done.

and hoppy , thank you for chiming in, your reading of my claim along with your comments brings out my objections so that people can understand them better,i think you for that.

the c/p that hurt was the one that said ( it would have been difficult to do fenceing had i been in pain ) what a joke, he dont know how much pain i can take and still do my work, he never gave me any type of test for pain tolerance.

and a nother thing is they pointed out that my seperation exam said i was normal. when in fact it does not. in fact there was no exam,just a unsigned incomplete form.

boy ill tell ye i am confused,i just want to tell them the evidence is there if they would just listen to me.
one mistake after another.

my question is whats next ,do i start again,if so at what point. thinks again

#27 Berta

 
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Posted 29 September 2012 - 06:06 AM

Sorry I didnt have time to read all in the decision until early this AM .I was interrupted by farm business issues.

Then when I read this, I can comment on the fencing part:

the fact that he worked at a fencing
company after service, which would have been difficult if he had chronic low back pain”

Did VA provide any medical rationale for that?

My Australian High Tensile was installed and then repaired by someone who was a senior citixen by the time it needed repair.

Other types of fencing I installed myself, sometimes with help, I was the family livestock farmer, as my husband worked at VA and also was in Voc Rehab.

I had back pain from the minute I got up until I went to bed.Not unusual for farmers.

My point is how did the VA determine that your job would have been difficult with back pain.

Did they consider how your job would not have been difficult ,chronic with back pain?

Did the fencing job in fact involve heavy lifting etc, or did it involve something like installation of High tensile, done with front end loaders etc, to move the posts and then tap them in.The actual stringing of high tensile takes times for each strand ,that can involve miles, but is not labor intensive.

But the important question you asked is what you can do now.

Can your lawyer advance any evidence to this statement

if you appeal at the federal level?

their determination that there is no evidence
in medical literature linking soft tissue injuries to the development of arthritis”
and

Therefore, it did not err in also relying on medical
opinions that did not consider these statements, because the statements do not affect the factual
premise of the medical opinions.” that statement alone is a key issue that can cause denials to some vets with costly IMOs.

The factual premise must be probative to the claim itself.

Ardison link is here.

http://www.hadit.com/forums/index.php?/topic/2977-cova-case-bilateral-hearing-loss/


The VJRA allows the US Court of Appeals for the Federal Circuit to hold jurisdiction over denied CAVC that are appealed to th federal circuit Court of Appeals.

The regulations are within 38 USC 7292.

http://www.law.corne...de/text/38/7292

This is why a lawyer will fight hard for a joint remand at the CAVC if they can,depending on the evidence and the way the BVA decisions is worded, if they can find some loopholes in it.....

A Remand oipens a big door for more evidence.

CAVC denials can only be appealed at the federal circuit level, as far as I know, after reading the above regulation .

PS sorry my font shrunk.

I dont know how to fix that. It was OK in my OffOrg doc that I pasted here.

Edited by Berta, 29 September 2012 - 06:11 AM.


#28 broncovet

 
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Posted 29 September 2012 - 06:21 AM

Berta...

Let me make sure I am getting what you are posting. Yes, I understand that attornies try to get a remand, of course, if they cant get an award.

So, if they do get a remand, does that open the door to any "new evidence" or just "new evidence" for the issue remanded? This is important because I feel I almost have a "guarnteed remand".

You see, I think when the BVA fails to address issues the Veteran raised upon appeal, this is an automatic remand. The cavc tells the BVA to address those unaddressed issues.

But what I want to know is if they remand can I also submit more evidence on other issues?

I also know that the CAVC is not a "trier of fact". The "factual determinations" are made at the RO and BVA levels. The cavc does not want to get into whether the Veteran met the criteria for 30% or 50%. This "factual" determination could would rarely, if ever, be overturned at the CAVC or above levels. Instead, the attorney argues the BVA made some sort of legal error and gets a remand. Then, it opens the door for the Veteran to say..."gee, now that it has been remanded, why did you not consider me for 50, or 70 percent, when doc x indicated I met the criteria"...kind of a thing.

#29 Berta

 
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Posted 29 September 2012 - 07:02 AM

A joint remand from the CAVC, is usually negotiated by an attorney, who holds the veteran's POA at the CAVC level.

I dont know if a non represented vet can get a CAVC remand but that is covered in the Rules and Practice stuff at the CAVC web site.

If that negotiation successfully gets the CAVC to remand, then new evidence can be submitted but must be probative only to the claim that was remanded and only specifically to argue against the BVA denial that caused the CAVC filing.

The veteran could have other issues pending at the VA, or even file additional claims.

The CAVC however is only interested in the actual BVA denial that caused the vet to appeal to the CAVC.

#30 mos1833

 
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Posted 29 September 2012 - 08:47 AM

below is what iam up against----did they review the material or just rule against it due to me saying i have had pain since seperation,( lay )

hears a slap in the face


The Board has also considered multiple outpatient treatment
records showing on-going treatment for low back pain since
the late 1990s. While the veteran related his pain to an in-
service injury, the Board is not obligated to accept the
veteran's recitation of the facts. See Godfrey v. Brown, 8
Vet. App. 113 (1995). While recognizing that the veteran has
been diagnosed with a current low back disorder, the Board
places less probative weight on this evidence as the issue of
a causal relationship between his symptoms and current
diagnosis were either not addressed or appeared to be based
wholly upon statements of past medical history provided by
the veteran. The Board, however, is not bound to accept such
statements simply because treating medical providers have
done so. Wilson v. Derwinski, 2 Vet. App. 614 (1992); Wood
v. Derwinski, 1 Vet. App. 190, reconsideration denied, 1 Vet.
App. 406 (1991).
ipb.global.registerReputation( 'rep_post_256871', { domLikeStripId: 'like_post_256871', app: 'forums', type: 'pid', typeid: '256871' }, parseInt('') );
  • Back to top thanks again berta ,and you too bronco .
  • so all my medical evidence from my doctors is no good because of wilson v, derwinski .?


#31 Hoppy

 
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Posted 29 September 2012 - 08:57 AM

I noticed ther were responses. I am so pissed I am going to post this before I read the responses.


The wheels are still spinning in my head.


The veteran claims that there was no discharge exam. However, even if there was such an exam the fact that the veteran did not complain of pain it totally irrelevant.


I know individuals with chronic back pain that is capable of causing exacerbations that put them flat on their back unable to work for sixty days a year. I can post a case of a VA doctor that is rated at 60% due to the fact he stated he missed over sixty days a year of work. What happens the other three hundred days a year? In many cases there is no pain or not enough pain to even talk about.


So, a veteran does not mention he has back pain on a discharge exam. The veteran is about 20 years old had two exacerbations that resolved while in the military. Does the veteran plan on having a back condition the rest of his life or does he have a clue that he will continue to have this back problem. NO.


The evidence against the claim is so weak it does not outweigh subjective history. They are claiming there is evidence of a post service “injury” and bone condition 9 years after discharge. How does that rule out the possibility that the veteran has both a bone problem that may or may not be causing the pain and a history of pain going back to the military. It is not impossible to have both. Usually veteran’s credibility is challenged by the raters citing inconsistent statements or doctors saying the veteran’s complaints do not have a medical foundation.


The fact that the veteran did not see a doctor for nine years is also irrelevant in a back condition case. The veteran already saw doctors two times in the military and they gave him some treatment such as telling him to take some aspirin or don’t lift for a couple days or they could have just been rude and told him to quit complaining. Either of these patterns of treatment would make it likely that the veteran would be reluctant to spend money on a doctor just to get the same type of treatment. The fact that the veteran only went to sick call twice is evidence he is the type of person to be believed. People who are malingering go to sick call on a regular basis the rest of their career. Malingerers have what doctors call fat file syndrome.



There are VA adjudicators who just hate to award service connection or an increase in the types of claims where they need to rely on subjective complaints. Headaches, pain of different types etc. They need to get a medical opinion saying the veteran’s subjective complaints are not believable. A bare conclusion from a C&P examiner that a link is speculative or the fact that the veteran worked for a fence company does not make his complaints unbelievable. The fact that the veteran has a bone condition discovered nine years after service does not change the fact the veteran has a chronic pain condition in the military as demonstrated by post service complaints of pain.

#32 Hoppy

 
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Posted 29 September 2012 - 09:51 AM

The case you cited does say they do not have to base a decision wholly on your statements. This is true. They have to weigh the evidence for the claim with the evidence against the claim.

Evidence for the claim would be the fact you were treated in the military, you told them the symptoms continued after the military and you have a post service diagnosed back condition. This should be enough to award service connection. They must show your statements are not credible. However they “invented” evidence against the claim. The C&P examiner was the inventor of the bogus evidence.

They are saying the medical evidence does not show a link between the inservice and post service conditions. This is a problem. You need to get a nexus determination. The c&p examiners did not provide a nexus. An IMO should address nexus. However, they need to address continuity of symptoms. Do not quote me on this. However, I think that they do not need a nexus if continuity of symptoms is shown. Unfortunately, the BVA site is down and I can’t research this. In any event try and get a nexus statement. Resting the entire claim on continuity of symptoms without a nexus would be a weaker approach to advancing the claim. Also, I am not sure what to do with new evidence. Whether or not you need to file a new claim or continue this claim would be a consideration for the attorney.

They are attacking continuity of symptoms by saying that your statements are not believable. They must provide a reason your statements are not believable. To do this they cited several attacks on your credibility.

They cannot deny you were treated in the military. They cannot deny you have a current diagnosis. Thus, they are attacking the credibility of your statements based on the lack of notations at the time of discharge, your job at the fence company and the fact that you have a bone condition.

As I stated in the previous post, their attacks are supported by a bogus medical opinion from the C&P examiner who thought the lack of complaints at the time of discharge and the job at the fence company made your comments unbelievable. Additionally, they used this bogus C&P to give relevance to the diagnosis of the bone condition as somehow confusing the claim. As I said before, the relevance of the fact that you did not complain of back pain at the time of discharge and the fact that you worked at a fence company are not supported by my understanding of known chronic back conditions that I am familiar with. You could have both a chronic strain/pain condition dating back to the military supported by credible subjective complaints and a bone condition that was identified after the military that is either not causing pain or not dominating the diagnostic picture.

You need to get an IMO challenging the C&P and the relevance of the bone condition.


#33 Hoppy

 
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Posted 29 September 2012 - 10:16 AM

One last thought,

Does the C&P examiner specifically say that the lack of noted symptoms on the discharge exam and the job at the fence company make the veterans subjective complaints unbelievable or did the C&P examiner merely note these facts in his history. Did the Adjudicators play doctor by reading into the history and make a decison that can be equated to a medical determination? If so this would be a big NO, NO.

Who knows what is going on. I just saw a case on TV where a forensic examiner had been providing false testimony to the court for fiftten years. I have also read cases where the BVA was bashed for playing doctor. If the doctor did not specifically say the veterans claims were not believable and the RO played doctor, would the CAVC bust the BVA for playing doctor if you did not raise the issue or would this be something they CAVC would be obligated to address if discovered by the CAVC.

I once got into argument on the board with a VA adjudicator because I stated that continuity of symptoms was a medical determination that can only be determined by a doctor. The VA adjudicator posted that they are allowed to determine there was no continuity of symptoms based on case law without seeking a medical opinion. I thought that this was pretty marginal and would result in the misapplication of case law due to the fact that there would be medical complexities in a particular case that were not understood by the adjudicators. I equated the practice of using case law rater than a medical opinion to the adjudicators playing doctor. In a system that allows such a practice might not the raters invent a false medical determination that the lack of complaints on a discharge exam and a job at a fence company were relevent even though a doctor did not say they were relevent.

#34 broncovet

 
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Posted 29 September 2012 - 11:20 AM

I agree with Hoppy. There is a difference between "continuity of symptoms" and "continuity of treatment". A Veteran certainly may try different forms of "treatment" which may or may not include medical treatment. He may self medicate with OTC meds, he may "suck it up"...he may even treat it with alcohol. He may also treat his conditions with alternative medicine, such as acupuncture, herbal remedies, magnetic therapy, aroma therapy, chiropractic care, etc.

The Va requires continuity of symptoms, not continuity of treatment. Even a VA doc could prescribe a variety of different treatments for the same ailment..this does not mean the symptoms went away. It meant the treatment was probably ineffective, so the doc tried something else, as he should. Most often, Vets wind up "sucking it up" and living with the pain. "Self treatment" is different than "no treatment". The VA often views the absence of any medical treatments to mean there was no continuity. The absence of evidence is not evidence of absence. There is a big difference, and dont let the VA hornswaggle you into thinking they are the same thing.

Example: You fracture your leg in the military. (I did that, so I am using that example) Years later you develop arthritis in a joint that was the same joint that you fractured. You suffer symptoms for 10 years. You take OTC pain meds...you stay off the leg..pack ice on it when it swells, and drink yourself into a stupor when you cant bear it anymore. You cant afford to go to the doc, because you have no insurance and their is either no ortho ped department at your VA, or, if there is one, like my VAMC they offer appointment times in June, or July, 2013. Yea right. You apply for benefits. The VA denies, based on no continuity of symptoms, noting you had not been to the VA doc about your condition for 10 years. They hornswaggled you. You go to the VA doc for TREATMENT..not for symptoms. You have treated your own symptoms, and, now that they finally have an ortho department where you can get an appointment, you tell the doc of your symptoms. The absence of evidence in your record is not evidence of absence. Instead, it means that your records are incomplete, inaccurate, or you treated it where the treatment was not recorded in the medical record. This is not a crime!

It is certainly plausable, or even likely, that a Veteran would seek alternate treatments especially if the past treatment was ineffective or had too many side effects. The CAVC determined that continuity of symptoms was applicable, not continuity of treatment. Many Vets feel its not continuity of treatment if they did not go to their VA doc for a while. This is not necessarily true. You could well have "given up" on the treatments you got at the VA and sought "something different", such as something that actually worked.


"Evidence of absence" would be if the doc did an X ray and or MRI, and he said your tests showed you were "negative" for arthritis. This would be "evidence of absence" .....far different that just the mere silence of medical records on the issue.
If the Veteran were truly to be given the "benefit of the doubt" then a doc's "silence" should be counted to mean that the Veteran was right..not that the Veteran was a liar. In this example, the Veteran was not a liar because he sought alternative treatment, including self treatment. The med recs showing a lack of medical treatment does not mean the Vet is a liar, like the VA suggests.

Edited by broncovet, 29 September 2012 - 11:30 AM.


#35 Hoppy

 
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Posted 29 September 2012 - 11:21 AM

These cases were on my computer. I still would like the BVA to get their site running.

Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

A disorder also may be service connected if the evidence of
record reveals the veteran currently has a disorder that was
chronic in service or, if not chronic, that was seen in
service with continuity of symptomatology demonstrated
thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet.

App. 488, 494-97 (1997).

#36 mos1833

 
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Posted 01 October 2012 - 09:33 AM

In conjunction with the March 2010 remand, NPRC, in April 2010, again forwarded the results of the April 2006 prior search conducted which indicated that NPRC had conducted an extensive and thorough search of the records among their holdings. It noted that it was unable to locate the records identified in the request (personnel file). NPRC concluded that the records either did not exist or the records were not located at NPRC.

this is a joke hoppy, please note my the ro put in quotation marks that they requested my personnel records (file).

well i know my claim, and thats a bunch of crap. in 2006 they sent a request for for a ptsd claim, to prove if i was ever in harms way, thats different than a personnel file which they say they have requested twice, when in fact its never been correctly ask for.

they lie. thanks

#37 Berta

 
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Posted 02 October 2012 - 05:59 AM

In my opinion, if a NRPC search provides the VA with evidence to award the claim , that is Great!

But if the VA says the evidence NPRC sent them does not award the claim,that is when the veteran should prepare for NARA -a SF 180 (they can do this on line at NARA and then print out, copy, sign and send the bar coded Signature form
to where NARA site directs them to and they should request ALL SMRs and ALL Personnel records (often called the 201 file by USMC, USN and maybe by AF and USA too.

Then again maybe the VARO has those records.

Have you ever seen your actual SMRs and 201 files?

I have a friend stuck in appeals for over 10 years until he took my advice and got his 201 file from NARA.

With the info in that file, which VA had never requested, his VA doctor was able to prepare an excellent nexus letter and he finally got his award and mega retro.

I have used that philosophy for all of my claims too.

If I don't like what the VA says about something, I sure check it out on my own.

#38 mos1833

 
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Posted 02 October 2012 - 09:59 AM

thanks berta,
i did rquest my records, useing that form ,the files were only some stuff. the only medical reports came from the ( what is called the shore party medical unit ) all recorded in the field, reports show where they the shore party sent me to the medical officer for evaluation more than once.

its those records missing , i sent them what i had and they sent them back.

thanks

#39 mos1833

 
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Posted 12 November 2012 - 11:21 AM

broncovet,hoppy,and all others that have helped.

this is just an update on my claim, i was denied at the court ,judge green made a mistake,but i dont know how to make him see the evidence,he agreed with the board , and totally took their side and used the lay evidence precedence opinion clearly wrong,my lawyer ask for him to reconsider,or send it to a pannal, at this point i just want to stand in front of him or any body and explain all the errors.
dang judge green would state the law and then say it was ok for the the board to break the rule,
he is wrong about lay evidence precedence opinion. any way thanks all

#40 SpcDearman

 
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Posted 12 November 2012 - 12:11 PM

Mos 1833 please do not give up. You sir are my inspiration. I too have been denied using the same rationale. i have requested copies of all medicall records, C&P exams, and all sick calls even when I was in the field. (Most of my complaints came while in the field - 11M Bradley driver. ) i will not let them get over on me. Keep your head up.



Hoppy -

A disorder also may be service connected if the evidence of
record reveals the veteran currently has a disorder that was
chronic in service or, if not chronic, that was seen in
service with continuity of symptomatology demonstrated
thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet.

Am I reading this correctly that if i complained about my shoulder injury numerous times after a tank accident that I should have had more benefit of the doubt from the RO? i am in the same situation as BRoncovet with the self medicating until I could no longer self medicate then seeking VA medical care. i never could afford my own health insurance.




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