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      How to get your questions answered. A few observations, and requests of all members. All folks who come here are volunteers who do this on their own time and their own dime.To avoid burning out our best contributors please follow these guidelinesf you are reading a post and it reminds you of a question you want to ask, start a new topic, if you place your question in someone thread it will be difficult to distinguish your question from the original poster, you will get better results posting a new topic with your question. 1. Before Posting please do a search and see if your question has already been answered. If you find the answer print it out and put it in a file to use as a reference file, I find this helpful myself. 2. If you can not find the answer and you do post a question, please print out those answers and refer to them to avoid duplicate questions. 3. Refer to the Frequently Asked Questions4. Duplicate questions will come up from time to time but the keeping them to the minimum will lighten the load on the regular volunteers.5. Respect folks privacy do not request their personal phone numbers for claims help, it is inappropriate and not why they are here.6. Keep the topics focused on veterans issues, in closing Search first Search ... Ask second.it may save a lot of time or at the very least enlighten you.
    • Listen Live Every Wed 5:30 PM CST to SVR Radio, Veterans Issues are discussed with various guests.

      Listen Live Every Wed 5:30 PM CST to SVR Radio, Veterans Issues are discussed with various guests. Please check the little home I am carving out for our SVR partners. http://www.hadit.com/svr.html
    • A bit about Tbird and HadIt.com for those who've asked...

      The following is on my About page, but some have been asking how this all happened. So here is my little story. Tbird US Navy 1983 – 1990 E-6 HadIt.com the website domain registered Jan 20, 1997 the domain is registered and paid for through Jan 21, 2023 at which time I plan to register it for another 15 years Lord willing and the creek don't rise. I guess the best place to start is Jan 1991; I had gotten out of the navy Dec 1990. At my separation seminar, there was a DAV rep Jim Milton he told us to bring our medical records in and he would look through them for us and let us know if we should file a claim with the VA. Well, bless his heart, he opened my medical file, reads the first insert, looks me straight in the eye, and says you will be 50% for the rest of your life and he would file the claim for me. 50% was for surgery I had in the service. True to his word he met with me and talked with me for a long time filled out my paper work and urged me to file for PTSD. I would not file the PTSD claim, nor even discuss it. By Feb 1991 I had moved to the San Francisco bay area and was staying at a friends apartment and pretty much I was just a puddle. In desperation one night I called suicide hot line, I had no job, no idea about going to the VA. They talked with me for a long time and explained to me that I could go to the local VA hospital even if I did not have insurance. Now, I know what you are thinking if I was 50% why didn't I just go to the VA in the first place, two reasons 1, this was Feb 1991 and the 50% didn't come till May and 2, even if it had come through it is unlikely that I would have had the mental acuity at the time to put the two together. I relate this here because it is where so many of our brothers and sisters are coming from, perhaps where you started. Fuzzy and unsure, in pain and sometimes homeless they come to the VA hospital for help. And that is where I ended up. Up to the pysch ward I went, blah, blah, blah, a few days later I was released with a promise of a call from the out patient program, which I would soon be entering. Blah, blah, blah, after many missed communications, and no call backs I was at the Day Hospital everyday M-F. And this brothers and sisters is where I began to learn and formulate my plan for HadIt.com. Veterans, veterans everywhere…I spent a year in the day hospital and about another year at a sheltered workshop before I got back on my feet. So I just talked to veterans everyday waiting for appointments, waiting for prescriptions, waiting for a vet rep and I started to learn the system. While in the navy I was data analyst and had to learn a 5 volume manual and just about anything you were suppose to do was in that manual. So I figured there must be a manual on how to do a VA claim or at the very least regulations. So I found out about the Code of Federal Regulations, United States Code, Veterans Affairs Manuals and so on and so forth. Of course this was 1991/1992 I was living in a tiny studio apartment in a particularly bad neighborhood, working in a sheltered workshop making a nickel per envelope I stuffed throw in PTSD and you will see that it was a difficult task for me to get somewhere where they had copies of these, let alone that they would let me look at. And there was so much knowledge around me, it was like the gold rush in those days, I could just sit on a bench a veteran would sit down next to me a little conversation later I had another nugget, I made copious notes. Phone numbers to call, ask for this guy or that guy he'll give you the straight scoop and they'd slip me a piece of paper with a number on it. You want to read this regulation or that one and another slip of paper into my hand. I spent a lot of time on those benches watching the squirrels they gathered their nuts and I gathered mine :) So I'm thinking I could put a little handbook together print it out and hand it out at the VA. Or perhaps fliers. Still formulating, time goes by, 1994/1995 I am being treated for PTSD regularly and doing and feeling much better and I go to work for a company as a marketing systems analyst and I discover the internet. Well let me tell you that was perhaps one of the most significant life changing events I have ever experienced. And I might add finally a positive one :) It seemed only natural to me that surely there must be a website that contained all the knowledge I wanted, well as it turned out not so much, lots of stuff but I wanted to get straight to the claims information and there was a lot of stuff to wade through to get to it. So taking my lesson from the squirrels earlier I started to gather, gather, gather…and learn HTML and work as a marketing systems analyst and work my claim. 1996/1997 major PTSD cork blows and unemployed. Working my claim, working the website. 20 Jan 1997 register HadIt.com domain name right after getting off the phone with the VA and saying I've had it with this. As fate would have it the old DAV board goes down just as mine opens up and folks start to wander in. So HadIt.com has two main components the website which supports the discussion board with links, articles, research resources etc. The website starts to grow, I can't tell you how many times I had to switch servers for space and features. I continue on a downward trend and in 1998 ended up back home in St Louis living in my sisters basement in therapy and working it, I swear I would have swung a dead chicken around my head at midnight naked if I thought it would have helped. The website continued to do great during this time, I just stayed in the basement bought new software, new books, and learned how to make things work and I continued to use this knowledge to make HadIt.com better. My 100% finally came through from the VA and I had a friend who is an advocate who helped me thru my SSDI claim, he was literally at my side thru the entire process and that came through for me. My therapist and sister continued to try and get me to leave the basement, but to no avail. At some point in 1998 or 1999 I put a counter on the website and was shocked to discover how many visitors we were getting. Time goes by my sister gets married and I move from the basement to the upstairs, there is much celebration that Aunt T is living in the light again. More time goes by and I settle into my life in St Louis and spend more time on the site trying new things, finding more information. 2003 I buy my own home VA loan. For years now I have just considered HadIt.com my job and I get up every morning go to the office and work for several hours, take an afternoon break and see where the rest of day takes me. I have a place in the office to use the computer and a comfortable to place to read journals and articles and take notes. Blah, blah, blah so that is my story and HadIt.com's intertwined.
    • HadIt.com Pass It On Cards

      Hi I've updated our HadIt.com Pass It On Cards. They are in a PDF format you can print them out cut them there are 12 to a page. If you have found HadIt.com helpful and would like to pass it on to other veterans this is an easy way to do it.I hope you find them helpful, feel free to leave a few anywhere veterans gather, veterans centers, veterans hospitals, public libraries, be creative. Please make sure though, that if you want to leave some at any business you ask permission first.Here you go http://www.hadit.com...it_on_cards.pdf
    • VA Training and Fast Letter Forum Index

      VA Training and Fast Letter Forum Index The following is the index with links to the various Training and Fast Letters plus a few miscellaneous. These letters are not necessarily in the original formatting. I have tried to present them in an easy-to-read form instead of some forms as originally presented. Some of the paragraphs were WAAAAYYY too long. lol - HadIt.com Member fanaticbooks Something to be aware.... Some of these letters may be rescinded, outdated, or otherwise no longer viable. I have still included them because sometimes they provide additional insight or just plain more information than the newest version. Use them wisely. The oldest letters will display at the bottom with the latest letters displayed at the top, all in sequential numbers. Coding of the letters... FL = Fast Letter TL = Training Letter First two numbers = last two digits of year of origin Training Letter http://www.hadit.com/forums/index.php?/topic/40694-va-tl-00-07/ http://www.hadit.com/forums/index.php?/topic/40693-va-tl-00-06/ Fast Letter Number Title http://www.hadit.com/forums/index.php?/topic/44262-va-fl-11-15/ http://www.hadit.com/forums/index.php?/topic/44260-va-fl-11-13/ http://www.hadit.com/forums/index.php?/topic/44261-va-fl-11-11/ http://www.hadit.com/forums/index.php?/topic/44310-va-fl-11-09/ http://www.hadit.com/forums/index.php?/topic/42151-va-fl-11-03/ http://www.hadit.com/forums/index.php?/topic/40957-va-fl-10-49/ http://www.hadit.com/forums/index.php?/topic/40958-va-fl-10-46/ http://www.hadit.com/forums/index.php?/topic/40959-va-fl-10-45/ http://www.hadit.com/forums/index.php?/topic/40960-va-fl-10-42/ http://www.hadit.com/forums/index.php?/topic/40961-va-fl-10-39/ http://www.hadit.com/forums/index.php?/topic/40962-va-fl-10-35/ http://www.hadit.com/forums/index.php?/topic/40963-va-fl-10-34/ http://www.hadit.com/forums/index.php?/topic/40964-va-fl-10-32/ http://www.hadit.com/forums/index.php?/topic/40966-va-fl-10-30/ http://www.hadit.com/forums/index.php?/topic/40967-va-fl-10-26/ http://www.hadit.com/forums/index.php?/topic/40968-va-fl-10-25/ http://www.hadit.com/forums/index.php?/topic/40819-va-fl-10-24e1/ http://www.hadit.com/forums/index.php?/topic/40818-va-fl-10-24/ http://www.hadit.com/forums/index.php?/topic/40817-va-fl-10-22/ http://www.hadit.com/forums/index.php?/topic/40814-va-fl-10-04/ http://www.hadit.com/forums/index.php?/topic/40969-va-fl-10-03/ http://www.hadit.com/forums/index.php?/topic/40812-va-fl-10-02/ http://www.hadit.com/forums/index.php?/topic/40808-va-fl-09-52/ http://www.hadit.com/forums/index.php?/topic/40806-va-fl-09-50/ http://www.hadit.com/forums/index.php?/topic/40970-va-fl-09-41/ http://www.hadit.com/forums/index.php?/topic/40971-va-fl-09-38/ 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  • 0

Is This Categorical Dismissal Of Lay Evidence

Question

Posted

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.

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86 answers to this question

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Posted (edited)

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

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Posted

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")

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Posted

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,.,..

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Posted

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.

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Posted (edited)

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

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Posted

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 )

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Posted (edited)

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

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Posted

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

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Posted

I agree with Pete and Hoppy.

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

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.

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Posted (edited)

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

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Posted

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

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Posted (edited)

“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

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Posted

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

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Posted

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..

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Posted

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.

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Posted

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).


  1. 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.veteranslaw.com/content/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!

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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

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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

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


  1. . 02-2299 (Quick View | Details | Similar)
    No. 02-2299 Mark R. Nunley, Appellant , Veteran Mark R. Nunley appeals, through counsel,

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.

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Posted (edited)

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

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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

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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.uscourts.cavc.gov/cmecf/servlet/TransportRoom?servlet=ShowDoc&dls_id=01202159232&caseId=70902&dktType=dktPublic

They might have a different opinion than I do.

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Posted (edited)

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

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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.

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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

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