Just pulled this off the TTY. LHI, QTC and VES are allegedly open for business. Could be the VA are even hiring on some new outfits. Relax. It’s standard SOS-DD. I’m sure we’d all like to believe the VA conducts fair, impartial examinations and gives us the hallowed benefit of the doubt. Of course, an equally large number of us have cancelled our subscriptions to the Flat Earth Society and Tooth Faery quarterly. Whether due to pragmatism or a rude awakening is immaterial. If the “cheat & prevent” exams were equitable, we wouldn’t have outfits like Mednick Associates doing a land office business.
Here’s the screen grab of the incoming on the headline subject.
Specialized contract examiners. Did you catch that? So who were they using pre-Corona Beer Virus? My wild-rearended guess is no more c&ps out of VAROs-period. They don’t have enough warm bodies to keep the places open as it is. Perhaps this will take the load off the shrinks VHA convinced to stay and keep working there.
asknod
brewerkelli
jamesaurora
kcraveiro
Kiedove
My “Claim” now Appeal goes back to 1968; albeit 2006 for VA purposes. We are currently on Appeal from a recent DRO “Decision” which simply restated the regional “decision”; which of course ignored some 57 medical files entered into their Window in 2017. Since 2006, I’ve had two C and P’s; both non-c and p’s; having been performed only by extracting spec. info from the record/C-File contents; Clinician said “I was told to NOT give you exam, and to not even meet with you but since you’re here, show me what you have”, and I gave him a brief glimpse of copied evidence which slightly startled him. Nonetheless, we are before the Board presently, waiting for my attorney to submit; “mednick and assoc”; well, not truly as i do not know his source, but he’s paying two grand for this last opinion and its a crying shame it has to come to this albeit otherwise it has been tit for tat. Oh, my time in the “New AMA” from Legacy to be processed with DRO decision? TWO WEEKS…
Did you see my post below? Make sure your attorney cites: Bar v. Nicholson, 21 Vet. App. 303 (2007), (Once the VA provides a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place).
If you get a good BVA Judge, you may get remands like this:
“Accordingly, the case is REMANDED for the following action:
(This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. §
20.900(c). Expedited handling is requested.)
a. Expedited handling has been ignored. It has now been over 39 months.
1. “Furthermore, the Board notes that the June 15, 2015 neuropsychological testing
at Post and Associates, including eight examinations/tests and the clinical
interview cited by the June 2015 VA examiner are not associated with the record.
Because the June 2015 neuropsychological testing, if procured, could bear on the
outcome of his claims for increased ratings, efforts must be made to obtain them,
as well as any outstanding VA treatment records dated after May 9, 2016. See 38
U.S.C.A. § 5103A; 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992)
(holding that the VA is charged with constructive notice of medical evidence in its
possession).”
a. This remand has not been complied with nor has the Petitioner been given
copies.
2. “The Board finds the June 2015 examination is inadequate for two reasons. First
the examiner merely relied upon the lack of any complaints of back or neck pain in
the service treatment records to support the opinion. See Dalton v. Nicholson, 21
Vet. App. 23 30-31 (2007) (examination inadequate where the examiner relied on
the lack of evidence in the service treatment records and does not account for
competent lay testimony, to provide a negative opinion). Furthermore, the
examiner failed to address the Veteran’s primary contention that his lumbar and
cervical spine disorders are secondary to his service-connected TBI, to include the
symptoms of a seizure, absence or attention deficit that led to the September
1990 Motor Vehicle Accident.
Once the VA provides a VA examination, it is required to provide an adequate one,
regardless of whether it was legally obligated to provide an examination in the
first place, Bar v. Nicholson, 21 Vet. App. 303 (2007). Because of these
deficiencies, and to ensure that the Veteran’s lay statements concerning his
military service the circumstances of the September 1990 motor vehicle accident
are adequately considered, the Board finds a new VA examination is necessary.”
a. The 02/24/2020 examiner and 08/18/2020 decision, Appx30-33, ignored
the 09/17/1990 VA IPTR confirmation of seizures based upon the post
ictal EEGs, including the medical malpractice of treating the diagnosed
seizures with Tegretol, reported by the Physicians’ Desk Reference (PDR) as
making the condition worse and the reporting of to the DMV of California
for suspension of the Petitioner’s Driver’s License. Also ignored the
10/03/1969, id R. (missing) and 10/08/1969 NURSING NOTEs, id R. 3907,
in the inpatient treatment Navy service medical treatment record entries
indicating probability of complex partial seizures observed by medical
treating staff.
b. The examiner and RO have displayed an incompetent understanding of the
pathology of intervertebral disc syndrome resulting in the change of
chemistry of the spinal fluid on the rupture of a disc, dissolving a freefloating
fragment without requiring surgery, but resulting in a weakening of
the intervertebral disc sacks with further ruptures and disc fragments
causing sciatica and other neural foraminal stenosis symptoms lasting up to
21 days while the disc fragment dissolves. Also dissolving the remainder of
the disc resulting in desiccated discs. Process lasting 10 to 15 years per
orthopedic resident on behalf of the spinal surgeon. (also as experienced)
The examiner did not report the 1984 injury date, that I could find, lifted
from Foster, Robert Jr.’s note misfiled in the Petitioner’s file as reported in
the RO Decision. The RO probably lifted that date in a CUE from a previous
erroneous decision. The examiner reported but ignored the MRI Report of
04/16/2014 and subsequent neurobehavioral hospitalization from
04/16/2014. Treatment for temporal lobe epilepsy with Lamotrigine which
subsequently caused Stevens Johnson Syndrome. Because of an ongoing
02/28/2020 relapse of Stevens Johnson Syndrome, a 38 U.S.C. § 1151 and
38 CFR § 3.154 medical injury supplemental claim is being submitted.
Comparing the University of Colorado MRI reading of the same area with
the Minneapolis contract radiographic reports for the VA, it appears the
Minneapolis contractor willingly minimizes radiographic reports to hold
their contract with the VA. This should be investigated by the VA OIG.
c. The examiner and RO have displayed an incompetent understanding of the
presentation of temporal lobe epilepsy without grand mal seizures.
d. An adequate DBQ has not been provided to the examiners for a TBI 38 CFR
§ 4.42 examination including for temporal lobe epilepsy.
e. The examiner ignored left palmer flexion and left thumb flexion and did not
report accurately the reflexes, reporting all as 2+ and loss of sensation over
the posterior of the left thumb-wrist area.
f. The examiner ignored history of cervical myelopathy causing bladder
retention and subsequent renal shut down for 1 to 3 days.
g. The examiner ignored the history of infrequent use of a hard-cervical collar
for pain reduction and the use of hot pads and capsaicin. History of use of
a TENS unit.
h. The examiner ignored the pain on passive range of motion and subsequent
need for pain medication for 3 days because of her manipulations. And
the examiner falsely reported a denial of flare-up such as the one she
caused.
i. The examiner denies neck involvement in the 1971 MVA and then
subsequently notes a “stiff neck” from the 1971 MVA.
j. The examiner did not mention the 1991 MRIs of the cervical spine and
lumbar spine with free floating disc fragments on the neural foramina.
k. The examiner reports no ankylosis left side of wrist when the thumb carpalmetacarpal
joint has been ankylosed since the 1969 surgery and spica
casting in a favorable position. Or recent years, pain on weight bearing
while using crutches if not avoiding normal left thumb palm weight
bearing.
l. The examiner does not report the gap between the thumb and
transverse crease of the hand on maximal thumb flexion as required by the
Remand.
m. The examiner did not read and note the 10/08/1969 IPTR wrist surgery
report. Only the “NARRATIVE SUMMARY” of the hospitalization.
n. In short, the examiner ignored and misstated lay statements which are
supported by the record.
3. “Accordingly, the case is REMANDED for the following action:
4. “(This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. §
20.900(c). Expedited handling is requested.)
a. The Respondent appears to be delaying rather than expediting as requested
by the Board by failing to send to examiners all of the required DBQs and
arranging examinations within a driving range capable of providing a full
protocol TBI DBQ examination. A one-day exam will not indicate if the
Petitioner’s temporal lobe epilepsy is in medicated control. Competent
examiners are within 40 miles, but scheduled exams are not.
5. “1. Obtain and associate with the Veteran’s electronic claims file any outstanding
VA treatment records relevant to his claims on appeal including the June 2015
neuropsychological testing from Post and Associates that were addressed by the
June 2015 VA examiner as well as any records dated after May 9, 2016.”
a. Remand not complied with and veteran has not received copies.
6. “2. Contact the Veteran and request authorization to obtain any outstanding
private medical records pertinent to his claims on appeal. Make at least two (2)
attempts to obtain records from any identified source.”
a. More than one request for authorization was sent to the Petitioner on
each of the medically contracted by the VA private source treatment
facilities. In addition, all records are constructively available from the VA
Finance Division because they are required from the provider for
payment to the provider.
7. “3. If any records cannot be obtained after reasonable efforts have been made,
issue a formal determination that such records do not exist or that further efforts
to obtain such records would (be) futile, which should be documented in the
claims file. The Veteran must be notified of attempts made and why further
attempts would be futile, and allowed the opportunity to provide such records, as
provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).
a. As stated above, all records are constructively available from the VA
Finance Division. Why isn’t the Finance Division sharing these acquired
medical records with the Medical Division and the Benefits Division? No
required notification has been made by the Respondent and there are
still missing VA treatment records from the C&P file.
8. “4. After all outstanding records have been associated with the claims file, the
veteran should be afforded a VA audiological examination in order to determine
the current nature and severity of his service-connected tinnitus. The entire
claims file, to include a copy of this Remand, must be made available to and be
reviewed by the examiner. The examination report should include discussion of
the Veteran’s documented medical history and lay statements. Any additional
evaluations, studies, and tests deemed necessary should be conducted. The
examiner is specifically requested to describe the functional effects caused by the
Veteran’s tinnitus.
The examiner should also describe the impact that the Veteran’s tinnitus has on
his daily life, as well as whether his tinnitus causes marked interference with
employment and/or frequent periods of hospitalization. The examiner should list
all symptoms associated with tinnitus and distinguish those that may be
associated with TBI and reasons for each distinction should be provided.
All opinions or findings provided must include an explanation for the bases (basis)
for the opinion. If any of the above requested opinions cannot be made without
resort to speculation, the examiner must state this and specifically explain why
an opinion cannot be provided without resort to speculation.”
a. 02/24/2020 audiology examination report not supplied by the
Respondent. Audiologist did not do adequate questioning re: effects of
tinnitus and ignored the Petitioner when he tried to explain problems
caused by tinnitus and the difference between the constant tinnitus
intermittent tinnitus. No audiology/tinnitus decision has been rendered.
9. “5. After all outstanding records have been associated with the claims file,
schedule the Veteran for an appropriate VA TBI examination with an appropriate
examiner (such as a specialist in neurology, neurosurgery, and/or psychiatry, who
has training and experience with TBI) to determine the current nature and
severity of his service-connected TBI. The entire claims file, to include a copy of
this Remand, must be made available to and reviewed by the examiner. The
examination report should include discussion of the Veteran’s documented
medical history and lay statements. Any indicated evaluations, studies, and tests,
such as neurological testing, must be conducted. This examiner must also list all
symptoms associated with tinnitus and distinguish those that may be associated
with TBI and reasons for each distinction should be provided.
To ensure that the all medical findings are expressed in terms conforming to the
amended schedular criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8045, in effect
as of October 23, 2008, the Board requests that the examination be completed in
accordance with the Review Evaluation of Residuals of TBI Disability Benefits
Questionnaire (DBQ).
Based on the examination results, the examiner should provide an assessment of
the current nature and severity of the serviceconnected
TBI consistent with the
revised schedular criteria for evaluating the residuals of TBI under 38 C.F.R. §
4.124a, Diagnostic Code 8045. The examiner is asked to specifically address the
degree to which the service-connected disability is manifested by facets of
cognitive impairment inducting memory, attention, concentration, and executive
functions; judgment; social interaction; orientation; motor activity; visual spatial
orientation; subjective symptoms; neurobehavioral effects; communication; and
consciousness.
In making his or her assessment, the examiner should identify all comorbid
physical, neurological, or mental disorder(s), and state whether each is shown to
be caused by the Veteran’s TBL If not, then, with respect to each comorbid
disorder identified, the examiner should attempt to distinguish any symptoms
and impairment attributable to such disability from identified residuals of a head
injury. If the manifestations cannot clearly be distinguished, the examiner should
clearly so state.
All opinions or findings provided must include an explanation for the bases for
the opinion. If any of the above requested opinions cannot be made without
resort to speculation, the examiner must state this and specifically explain why
an opinion cannot be provided without resort to speculation.”
a. As in 2. a through m above.
b. The examiner is not qualified to render the negative opinion on
temporal lobe epilepsy and ignored relevant medical reports to that
end.
10. “6, After obtaining all outstanding records, the Veteran should be scheduled for
an appropriate VA mental health examination to determine the current nature
and severity of his service-connected mixed organic personality disorder with
depression. The entire claims file, to include a copy of this Remand, must be
made available to and be reviewed by the examiner. The examination report
should include discussion of the Veteran’s documented medical history and lay
statements. Any indicated evaluations, studies, and tests should be conducted.
The examiner should identify the nature and severity of all current manifestations
of his service-connected mixed organic personality disorder with depression. The
examiner should also specifically address the impact that such has on his social
and occupational functioning.
All opinions or findings provided must include an explanation for the bases for
the opinion. If any of the above requested opinions cannot be made without
resort to speculation, the examiner must state this and specifically explain why
an opinion cannot be provided without resort to speculation.”
a. Not done.
11. “7. After the above development has been completed and all obtainable records
have been associated with the claims file, afford the Veteran a VA examination to
determine whether his lumbar spine disorder and cervical spine disorder are
related to his military service or his service-connected TBI. The claims file must be
provided to the examiner, to include a copy of this Remand. The examiner must
review the claims file in conjunction with the examination and discuss in the
report the relevant contents of the claims file as well as any relevant statements
by the Veteran. The examiner shall note in the examination report that the record
(i.e., the electronic claims file) and this Remand have been reviewed.
After examining the Veteran and taking a complete and thorough medical
history, the examiner should offer an opinion as to the following questions:
a) Whether it is as least as likely as not (a 50 percent or higher probability) that the
Veteran’s a lumbar spine disorder and cervical spine disorder developed as a
result of his military service, to include his in-service motor vehicle accidents in
1969 and 1971;
b) Whether it is at ]east as likely as not (a 50 percent or higher probability) that the
Veteran’s lumbar spine disorder and cervical spine disorder were caused by his
service-connected TBI, to include whether symptoms of seizures, absences, or
attention deficit, are associated with his service-connected TBI, whether such led
to the September 1990 motor vehicle accident; and whether his lumbar spine
disorder and cervical spine disorder are related to that accident. Whether it is at
least as likely as not ( a 50 percent or higher probability) that the Veteran’s
lumbar spine disorder and cervical spine disorder were aggravated by his serviceconnected
TBI, to include whether symptoms of seizures, absences, or attention
deficit, are associated with his service-connected TBI, whether such led to the
September 1990 motor vehicle accident; and whether his lumbar spine disorder
and cervical spine disorder were aggravated by that accident. If the examiner
determines that there is aggravation, the examiner should state, to the best of
their ability, the baseline symptomatology and the amount, quantified if possible,
of aggravation beyond the baseline symptomatology by the aggravation.
With regard to the questions above, the Board emphasizes that each must be
answered. The examiner should take into consideration all of the evidence of
record, to include in- and post-service medical records, as well as the Veteran’s
lay statements concerning in-service incurrence and post-service
symptomatology, accepted medical principles, and objective medical findings. All
opinions expressed must be accompanied by supporting rationale.
a. The examiner did not meet the Remand qualifications stated above to
render an opinion on service connection. Her qualification to render an
opinion on the degree of disability is also questionable. She did not
follow 38 CFR § 4.2 or provide valid rationale as Remanded for her
opinions rendered.
12. “8. Refer this case to the Director, Compensation Service, for consideration of
assignment of an extrascbedular TDIU prior to July 10, 2009, under the provisions
of 38 C.F.R. § 4.16(b).”
a. The referral was made to the Executive Director, Compensation Service
and TDIU from September 16, 1985 was granted.
13. “9. After completing the above, and any other development as may be indicated
by any response received as a consequence of the actions taken in the preceding
paragraphs, the Veteran’s claims should be readjudicated based on the entirety
of the evidence. If the claims remain denied, the Veteran should be issued a
supplemental statement of the case. An appropriate period of time should be
allowed for response.
The appellant has the right to submit additional evidence and argument on the
matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App.
369 (1999).
This claim must be afforded expeditious treatment. The law requires that all
claims that are remanded by the Board or by the United States Court of Appeals
for Veterans Claims for additional development or other appropriate action must
be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West
2014).”
a. The Petitioner submitted evidence and argument which was ignored (not
noted) in the 08/18/2020 Decision. The Petitioner included the notation
of the CUE in not accepting or rejecting the Petitioner’s 11/26/1994
Substantive Appeal.
b. A supplemental statement of the case was issued and withdrawn for
incompleteness.
c. The Respondent appears to be delaying because of the inability to
provide a complete medical file or a statement to the cause for the
proved to be missing VAMC medical treatment documents and hard
medical evidence repeatedly requested for obtaining a second opinion
medical report on incomplete reporting of EEGs and radiographic studies.
d. The Respondent has not handled the VA Remand in an expeditious
manner, now over 39 months.
e. The VA contractors for examinations have not entered into agreements
with the medical providers qualified to do the examinations in
Scottsbluff, NE less than 40 miles from the Petitioner’s home and the VA
is apparently unwilling to do as it did in Japan and allow the Petitioner or
have the Scottsbluff CBOC make arrangements for the examinations.
Multiple options for examiners are available there. The Petitioner’s PC
has referred the Petitioner to the The Regional West Medical Center there for
neurology and rehabilitation treatments. (The Regional West Medical Center is a Mission Act “in-network urgent care” facility, The Regional West Medical Center, Scottsbluff, NE is a full capability medical facility with the full capacity to do the 05/11/2017 Remanded examinations)
As can be seen in my Motion to the CAVC in my Rule 21 Petition because of the delays and non-compliance (Bray v Wilkie, Vet. App. 20-1415) The VA continues to drag their feet without complying to the Remands. This round will hopefully get an Order from the Chief Judge of the CAVC, who is the Judge on my case, for the Respondent to comply with the remands in some limited time.
Lem Bray, You are a gentleman and scholar as well. Appreciate the “long version”, and I will confirm with him albeit I am blessed and fortunate as while on the younger side, my attorney “grew up” in the North Carolina legal arena, and contributed significantly to the new regs submitted to the Federal Register in 2020; purportedly refining the regs regarding “Character of Discharge” which (I did not know this) “affects bordering 25% of Veterans”; further he submitted over one year ago; the needs, requirements and such from our Court (CAVC) Remand. Fortunately, “IT” (this Appeal) is out of my hands and emotions, having struggled with my plea for twelve years. I’m not capable of doing the time that Alex/Asknod did regarding his monumental effort before he was Granted. Thanks Lem.
Privatization has been the ongoing mantra of the goernment since the days of yore beginning with the peanut farmer (AKA Jimmy Carter) and going into full force with the Bush Reagan team. The first one I recall was the US Naval Hospital contract in 1982 where the GSA awarded the contract to the housekeeping. The only problem was that the contrator was responsible for all housekeeping and cleaning the entire hospital from the baseboards to the ceiling daily. The responsibility for the floor maintenance fell on the hospital enlisted and junior officer staff. Each day the enlisted and JO’s had to remain (7 days a week) till 2300–daily of course. Complaints were sent to the admiral (mister I don’t have to do it) who remarked “I don’t see what the problem is. We let them go home at 2300 and they don’t have to be back till 0730 the next day.” Mister compassion you know.
Were it not for a TV crew from one of the local stations in Jacksonville this would have gone on forever. IT took public interest to stop this travesty thanks to George HW Bush who pushed the contract through. I saw similar situations to this at least four more times at four more locatiolns just not to this degree.
Now to the VA, God only knows what will happen when full privatization of the VA comes to fore. Veterans will be denied proper treatment because of the bottom line’s profit motive and it will probably only get worse than it is now when these shysters and greedy CEO’s get in position to deny veterans their rightful benefits. If you think I am full of bull just wait.
AMEN
Fortunately, I called 800 827 1000 on September 11 after VES said they were moving my claim to cancelled and got a REPORT OF GENERAL INFORMATION on 09/11 by a legal aide entered into the file conflicting with the ROGI entered by the Operator responding to the VES notification of cancellation.
The VA GC entered a Response to a CAVC Order for Remand status on 09/16/2020 with a foot note acknowledging my Motion for an Order for Remand Compliant examinations (only communication from me served to her) as receiving a request from me to reorder the cancelled examinations also submitted 1 hour earlier. The Remand examination Order in the file is dated 3 days after the cancellation orders indicated by the ROGI.
Do you think the Chief Judge of the CAVC who is handling the Rule 21 Petitions because of the delays will respond kindly to the VA GC’s attempt to deceive her?
NO! Hope Asknod comments here.
Funny! Actually received cancellations of appointments on September 11. Orders for Remand compliant examinations on September 14. Cancellation remarks from QTC and VES on September 14 apparently referring to the September 11 cancellations of non Remand compliant examinations stating I had refused the examinations when all I did was ask the agents to call the DRO who ordered their examinations and get the Remands so compliant examinations could be done negating the necessity to get more remands for Chapter 4 compliant examinations. Same date SOC and SSOC denying claims and Remanded claims. Remanded claims were from July 2009. SOC was on claim of 11/11/2016. SSOC was the same as the SOC except the cover letter included the Remanded claims. No examinations done.
My BVA Remand cites: Bar v. Nicholson, 21 Vet. App. 303 (2007), (Once the VA provides a VA
examination, it is required to provide an adequate one, regardless of whether it was legally
obligated to provide an examination in the first place). And then gives very specifics on completing the Claims file (not done) prior to doing the examinations and insuring the Remands and complete claims file are available to and reviewed by the examiners. Seizure clinic Progress Notes from the hard copy medical file and back clinic Progress Notes from the 1990s hard copy medical file are still missing. No apparent effort has been made to “obtain and associate them with the claims file” per the Remands has been made.
Like to hear if anyone else has been able to get VES or QTC scheduled examinations. Looks to me like they are a HMO type operation collecting premiums but denying service and blaming the patient for the denied service.