Great song. Great band. Great sentiment and it captures what I want to talk about today. 12/07/1941 was 78 years ago but the enormity of the event still resonates today. I utilize it every year, too. My wedding anniversary is tomorrow. All you have to do is read a newspaper or look at a newsfeed channel and there will invariably be a mention of the seminal date in history. Bingo. Drop by Albertson’s and get some killer flowers tomorrow for Cupcake…
This works very well for an established date but not so much for Easter, Thanksgiving or Fat Tuesday. But I digress. Today is all about the wonderful world of nexus letters-those elusive, sought after letters from your personal care physician about what’s wrong with you and how s/he, an M.D. mind you, is pretty positive your (pick all that apply: DM II, prostate cancer, IHD, NHL, porphyria, chloracne, PN etc. came from ingesting/inhaling too much Agent Orange for breakfast in (pick one- Thailand, Guam, Laos, Philippines, Korea) ________________. Herein lies your error. You don’t ever want to dwell on how it was done wrong. You need the repair order. You don’t want to live your life as a VA refugee.
As I hope most know, you need three things to win-a disease/injury/risk factor/stressor in service, the same thing now and a well-reasoned Independent Medical Opinion. It’s also called the Nexus Letter. VA will offer their own c&p exam and it will find your malady is not related to service. They have a Cliff Notes© book full of excuses. It’s called the M 21.
I just received a Hep C referral from a good friend and major CAVC litigator to “fix”. The problem here is it never should have arrived at the Court in the first instance. It was appealed all the way up without any IMO. Or was it? The VA provided one for free. All IMOs are not equal. We usually come to find this out when we lean very heavily on our personal care physician (PCP) to write one. They don’t do nexus letters and IMOs. They do stethoscopes, oxycontin and malpractice. Hell, they can’t read their own writing. I’ve seen some daisies written by medical transcriptionists that are unintelligible or illogical. Depending on your own doctor to successfully do this is a crap shoot. Worse, you’ll never convince him to review all your service medical records and your claims folder. That would take weeks to accomplish. As we all know, VA’s favorite refrain is “We had our doc read all the records and your doc didn’t have them. Our shit is more probative”. And they’re right. They beat you fair and square- but only because they didn’t give you a copy of the rules in Dick and Jane Speak.
Sadly, there are really only two ways to do this. Actually three if you count all the new VA “counselors for claims” specialists out there who will ramrod your claims for 40% of the total increase in ratings percentage dollars times 6 months. Oh, and all those IMOs they wrote at $1,000 apiece you agreed to. Thus, if you went from 10% to 30% and your monthly check increased from $142.29/mo. to $486.69/mo. and you got retro back to filing in 10/05/2017, you have 40% of 6 months of the difference between the 30% and the 10%… or $2,066.40 plus IMO costs. But wait. You have to do all the filing. You have make sure you do it correctly. All your “counselor” is going to do is set you up with a doctor or shrink to get an IMO to win with. The only good news I see in this is if you lose and your IMO falls flatter than a cheese souflé in a daycare center, there’s no charge. That’s option #1.
Option #2 is to go with a VSO and accept the VA examiner’s IMO which pretty much guarantees a loss all the way to the CAVC and beyond. VSOs rarely win unless you’re holding a CIB in one hand and a Purple Heart in the other. If you bring your own “real” IMO provided by your VA counselor/expert former DRO, you very well may prevail. As usual, VA will lowball you and phase two begins on appeal for a higher initial rating. If you win that, that VA counselor will promptly show up with his hand out again. Same gig- 6 months of 40% of the increase. And so on.
Your new BFF VA counselor will soon discover you have waaaaaaaay more wrong with you than you thought. He has you file for all those extras and gets you inspected and written up for all thoooooose contentions. You refile and if you win any of those, you have to pay the… yep-40% of the first 6 months plus the costs of any of those successful IMOs. The truth is one doctor sits down with you for 30 minutes and does 5 IMO examinations all together. You feel it’s basically one. When you win, you discover you had four more than you thought and they won… at $1,000 each on top of the 40% for 6 months.
Option #3 is the best to my thinking-and not from my perspective as a VA ambulance chaser. You’ll be wanting to hunt down a good (read NOVA) lawdog for this project-not a run-of-the-mill, Yellow Pages, jack of all trades and master of none patent attorney. You don’t want a JD with a major in tax law or divorces doing this. You want someone who lives, eats and breathes 38 USC and 38 CFR. This is far easier said than done.
I know it’s becoming common knowledge as we spread the word on how easy it is obtain high-quality IMOs from top-dog specialists in the field. The problem is most reputable IMO companies will only deal with a professional like an attorney. Face it. Your red hot IMO written by your RN roommate who’s still on her 6 mo. trial employment at Kaiser Permanente™ about your brain glioblastoma secondary to Camp Lejeune bathwater is pretty sketchy. Fortunately, a VA lawdog (or an accredited practitioner like myself) charges a flat 20% with VA looking over his shoulder. Your representative charges you the cost of the IMO from their specialist(s) and I would pray they are as upright as me and don’t mark it up 30% for dealer prep and destination fees. There simply are no surprises in this nexus system. You pay for postage and copy fees. You pay half up front to research the IMO and figure out if a doctor can make it fly without lying. That is nonrefundable. If he agrees, you pay the second half upon completion and mutual agreement on the final draft language. Many times, I get my specialists to opine on the secondaries for the same price and then file after I win the service connection. I then resubmit the same IMO and point out the other diagnoses as my medical proof. I argue these were implied claims and the VA simply missed them. Hey, it works. VA caves in and grants. Since they didn’t deny it in the original decision, it’s basically pro bono. I don’t make anything off getting them up to SMC S. Win-win for me (less work) and for the Vet (more money in his pocket).
So here’s my Veteran’s SOC. Fast forward to page 23 for the denial logic. For what it’s worth, I probably would have denied based on the new IMO#1.
The IMO- Dos and Don’ts
Now let’s talk IMOs. As I mentioned, not all IMOs are equal. VA makes a commitment when they deny your claim. They usually point to an IMO-like pronouncement by a proctologist or podiatrist that your small cell carcinoma infestation of the brain is not related to AO and importantly, why it isn’t. At this point, they’ve made a commitment as to the cause. They cannot change their reason/rationale. Sadly, that is acceptable and usually passes muster even though it fails the smell test. The reason you lose is you have no IMO. But the good news is you now know what you have to have to win. Rebut the denial logic. You thought VA was going to provide you with a quasi-legitimate IMO. They did. It just wasn’t fair. You’re not a doctor so you now have to come up with your own IMO about 85% of the time according to VA win/loss statistics. Or, you go down the road as most Vets do and continue to bang your head against the wall with no IMO until you die or get a good law dog who recognizes what you need to win. Don’t feel bad. It took me 19 years to absorb this concept.
With that said, if you just go out and try to find someone who purports to do IMOs for a living, I think you need to do some research on them. I wish I had. Some of these “professional” folks will write one and it will fail. This is what just happened to me. I called the Shrink up and said “You augered in, Doc.” He says “Well, it’s your fault then. I worked with what you gave me.” This is not how it’s done. Let’s say you’re a baker. If you see you lack a naked lady to pop out of your client’s Bachelor Party Cake (and someone is paying you $2,500 to bake it), you don’t deliver it sans Mademoiselle Chantelle and then blame the buyer for the no sale.
A run-of -the-mill attorney who does divorces just handles your paperwork. He doesn’t go out and get an IMO. He has no clue how this works most of the time. He might if he does Social Security appeals but that’s about it. Same scenario. You law dog will probably author lovely legal arguments in your favor but doesn’t provide the Magic Paper. You lose and he revokes his POA and swears he’ll never do another VA claim again. Vets don’t understand that we do not have wheelbarrows full of cash to pay for IMOs. This is why it’s a two-stage process. If it cannot be done, you don’t have to buy the whole enchilada and find out a year later you have a useless IMO.
I always tell all my prospective IMO writers to keep the law aspect out of it. The last thing I want is a shrink in a white Lab Coat waving a bottle of Valium spouting 38 CFR and that the client deserves at least 70% for his ______. The law side is my job and I take umbrage with someone else muddying up the legal waters. I find I can vocalize precedence better and avoid instructing the Examiner on how to correctly read M 21. Bad form. Never dump on a mental midget. Besides, the CAVC has already spoken to certain lawyers who are also doctors trying to ride two horses simultaneously.
So here’s an IMO, written by a doctor of Psychology that flunked the VA audition. I’ll let all of you sleuths examine it and opine on what it has or doesn’t have in the way of compelling logic for the VA examiner to grant. I was less than impressed when I first read it and it doesn’t improve with age. VA said as much, too.
The blog today is my attempt at atonement. I was new to the IMO process in late 2017 and used it quite well. I was contacted about the same time by a psychologist who offered his services for PTSD/MDD claims. Shoot. He even invited us out to dinner to pitch his spiel. I promptly handed him off to my client to deal with directly. Boy howdy was that about wrong and two thirds as you can read below. It looks like I hired a lawyer to write it and he had to copy and paste it twice to make it look longer. Worse, I had to pester him to make grammar corrections-really simple stuff like missing/incorrect punctuation and spelling errors. He never did change the abbreviations like AVN. It took two weeks and they still missed half of them. Expertise on a scale of five ?
I got the Legacy SOC back on October 9th last which gave me 60 days to shit or get off the pot and lose the client’s effective date of filing. I called my good friends at Mednick Associates and they came through yesterday (Thursday) morning. I assembled it with scant days left to do so.
I am rather proud of my record as a litigator. I do not take defeat easily. I consider it avoidable. I promptly decided (with Cupcake’s concurrence) to buy another IMO on my own dime to right the wrong. As you can see, the author (#2)did some intense research on reams and reams of evidence and managed to cull far more that author #1. She was less expensive and did it in less than sixty days versus four months for the first grammar-challenged IMO. The quality of the finished product is Mednick Associates’ Hallmark. I have no doubt my client will prevail.