Once I discovered the recipe to VA claims, I set out to teach others. I started this website in 2008 expressly for that purpose. I have taught, and discoursed endlessly on the need for a true, well-constructed Independent Medical Opinion (IMO) to support your VA claim(s). The earliest warning we had on this was handed down in Caluza vs. Brown back in 1994. The CAVC finally enunciated the three prime ingredients necessary to prevail. Numerous decisions since (Shedden, Hickson etc.) have reaffirmed and expanded the language but the premise is still basic. You need three things-1) a disease, injury or exposure to a risk factor while in service; 2) you need the same problem now, or what we call chronicity; and 3) a medical professional to state that #2 is related to #1. In this business, we call it an IMO. Granted, if you have a Purple Heart, you usually don’t need an IMO for an increase on the damage all the shrapnel caused or the injured musculature. But then, again, with VA, maybe you will.
Nevertheless, there seem to be quite a few of you who are still confused on the where and the why. I have had Veterans come to me with the “Okay smartypants. How come I lost ?” -swearing they had the three magic coins. A hundred bucks says I can figure it out blindfolded. You tried to win at VA poker with two pair and they’re holding three-of-a-kind. You could get away with that until the VA began saying “our dude reviewed all the records-including his contemporary STRs from service. Therefore our medical expert’s opinion is far more probative and better.” I’ve seen VA say that even when all the “STRs” they actually held were dental records. Vets get what they think constitute IMOs that say “probably, its’possible, couldabeen, it’s not unheard of, my Uncle Earl had the same thing and it was caused by that too” or the best- “I’ve never heard no one say it wasn’t caused by ________. IMO language is an art form. What is said must be perfect. What isn’t said can destroy the IMO’s probative worth. Worse, your doctor doesn’t know how to write it so that it will win the claim. Doctors do medicine. They don’t teach it or study it. They find out the cure and apply it. Knowing what caused it isn’t as important as how to fix it.
Now, we’ve learned to conquer that VA trick by filing a FOIA for a copy of our claims files and letting our truly independent doctor(s) “review” them too. You’re never going to get your own VA-employed doctor to crank out a winner. Don’t waste your time trying. In 2010, VA told the VHA to do it’s job. Treat the Vet. You do not need to opine on causation to treat. The job of causation is the realm of the VBA and will remain there. VA examiners are far more savvy and have access to the big picture-the claims file. The VHA does not.
I have frequently updated the widget entitled Nexus Bible above but let’s delve into this more deeply. Each time we discover the reason or rationale for why VA denies us, VA trots out a new system or wrinkle that results in a new denial tactic. It’s time for a new review of their procedures and how you can go on the offensive and prevail far sooner in a win. I’m not going to invite you to a free dinner and try to sell you my technique. I’m too busy helping Vets. I’m going to reveal the latest trick I’ve invented. That’s not to say I invented it. I just happen to be employing it now with the latest revision to our appeals Modernization Act also nicknamed RAMP or AMA.
What a Good IMO Consists Of
Any IMO you submit must have certain ingredients. I’ll summarize the checklist.
1) You need an intro that the doctor isn’t your next door neighbor. He has to say he’s not going to share in your winnings and wouldn’t know if you if he met you on the street.
2) He has to state in no uncertain terms that he has reviewed a copy of the claims file dated xx/xx/xxxx as well as other medical records from _______, MD and _____, MD. dated xx/xx/xxxx, lab reports and your best friend’s buddy letter.
3) He must explain he is independent, very knowledgeable in this particular field of medical inquiry regarding causation (oncologist, psychologist or whatever), and capable of presenting a well-reasoned logic for why his particular theory is the most compelling. He must use peer-reviewed cites of other studies confirming his theory with real footnotes – not Wikipedia shit. God, anybody can insert their ideas into Wikipedia. It is not a valid tool to support your claim.
4) Finally, he must use the magical incantation that it is his considered opinion “that it is at least as likely as not/as likely as not/more likely than less likely/most likely” Johnny Vet got __________ when he was in the U.S. Army/AF etc.” Docusign is acceptable but kinda cheesy. Last but not least, is the curriculum vitae(CV) of the author. A CV lists every job this M.D. author ever had doing medical stuff. It will state pretty much that most of his/her work was in the same field of the particular illness/cancer/disease/injury s/he’s talking about. A good CV would be three pages.
Remember, VA’s local ARNP/VA examiner opinion isn’t even going to have as much smack as a real oncologist or psychiatrist. A Veterans Law Judge (VLJ) is going to look at that. Sometimes, if you do not have an IMO, the VLJ will order a new one. VA may even try to pass off a proctologist or a podiatrist with an MD after their names as a noted authority on glioblastomas. CVs? We don’t need no stinkin’ CVs. We’re the VA. This is why you want to get that IMO in front of the Judge personally. You want to point out an ARNP is like two pair and your IMO is like a full house.
Here’s a good sample that won.
Having the correct IMO is just part of your game plan. I’ve had guys with “workable” IMOs who deliver them with their introductory claim. I get that. If you file 20 years after you get out, you’re gonna need a killer nexus. Submitting the IMO at the beginning sounds pretty logical but here’s the problem. VA operates on ex parte justice. You file, they deny. You appeal. Remember Mohammed Ali? He talked of how he was going to beat Sonny Liston before the fight. He explained his technique as “rope-a-dope”. He let Sonny chase him and whack at him. He just folded up and bounced into the ropes and the ref would have to break them up and move them back into the center of the ring. This rope-a-dope game exhausted Sonny and Ali came back to whack him good. This is what you’re going to do if you follow my advice. Lawyers and agents are well acquainted with Maxson vs. Gober (2000) .
The New asknod Technique
Go ahead and file with nothing. File your 214. File a doctor’s notes that say you have asthma or a bum knee. You don’t need no nexus, senor. Not yet. Get that effective date established pronto. Check that box on the 526EZ that it’s a fully developed claim (FDC) just for shits and grins. Go out and buy that IMO and put it in the fire safe.
Okay. You get the c&p(s) and if all goes well, you get your denial in 125 days or less. If this happened on or after February 19th, 2019, you are a Chicken Dinner Winner now. Under the new system, you can file your Notice of Disagreement (NOD) directly to the BVA where real law exists. I told you earlier above that VA uses ex parte justice. Well, here you go.
You now go get out the IMO and present it as new and relevant evidence at the BVA pertaining to the denial of your claim at the David Koresh Memorial Regional Office back in Wacko, Texas. If you’re planning on giving your house an all-over remodel from stem to stern and aren’t too worried about time, you can ask for a Travel Board hearing. Those take time to schedule. If you’re in a hurry, I’ve gotten over that hearing backlog crap by simply flying back to DC with the client and doing it there at the corner of Delay St and Deny Ave. NW. That’s certainly not cheap but it’s the asknod results-oriented napalm technique. They’re about three months out on a Face -to-Face for an hour with the VLJ who will decide it. No video cameras 10 feet away from you. This is ‘Fix Bayonets!’ distance- four feet away from his/her honor.
If you try to take the new supplemental path with a brand new IMO after the denial and fight this out at the local Fort Fumble, you’re in for a stonewall at first. The Appeals Management Office (AMO) sits on these IMO-answered Legacy appeals and tries to figure out a way to deny them. I sent out a few and VA still has them boxed up for close to ten months now with no action up or down. They’re all at the AMO.
Now, with the advent of the new appeals path directly to the BVA, I’m praying my Veterans will finally get real, timely justice based on facts and law and not some computer algorithm in the M 21 that computes the denial and how to rationalize it with 38 CFR. Remember, the M 21 is not law. It’s an assembly guide like the one you get from IKEA with your bookshelves or table. The BVA Judge is going to tell you they do not accept legal arguments based on M 21. Build your arguments on 38 CFR. Leave the M 21 cites and the crayons at home.
Timing Is Everything
My philosophy is simple. Present an IMO too early and you give VA time and the ammo to beat your IMO. Remember, ex parte justice is nothing more than getting the last word in. If VA commits at the beginning as to why they are denying you, your rebuttal IMO must defeat their presumptions. That makes it easier if you know why you got denied. Similarly, if you put down your IMO at the beginning, you just give VA plenty of time to figure out how to poke holes in it. You’ve used up all your IMO ammo at the beginning. That’s why you want to play VA rope-a-dope. This is a recipe- just like baking cookies. You don’t begin to heat up the oven when it’s time to put the cookies in.
The new 2019 RAMP/AMA program allows the BVA to issue a SOC if your appeal has no wings. Then it advances to the Judge just to keep all this street-legal. BVA Option #3 actually mimics the old Legacy appeal to a ‘t’ but bypasses all the chucklehead VA examiners at your local Puzzle Palace. You can even nail it down at the BVA with a Motion for Waiver of Review of New and Relevant Evidence back at your local RO. The lowest this will go is to the Appeals Management Office (AMO) for a legal tuneup.
Why Go to the BVA?
Welcome to the 21st Century, folks. Congress heard our complaints about how long it takes. They think, and VA thinks, claims will speed up here in Unicorn country. One thing few know is the BVA needs, and wants to, drastically up it’s production output. What better way to accomplish this than a gift-wrapped present of an appeal complete with IMO? In VAland, one bummer IMO from VA against you versus one private IMO by a noted medical specialist equals a draw or a tie. Since the tie goes to the Veteran, you win. The VLJ is under the gun to crank these out. You’re giving him half his workload for the day with all the heavy lifting already done. If the IMO is solid and doesn’t involve alien abduction as the risk factor, you’re in high cotton. If you’re a doctor with an IMO factory and everyone at VA knows your name, this doesn’t work very well. Just sayin’…
The bad news is my new win technique will work for several years until VA finds a new way to deny us. The good news is we always find a new technique. It’s like trying to outwit zombies-entertaining but hardly challenging.
And that’s all I’m gonna say about that.