First, accolades to Beth Spangenberger, PA-C of Valor4Vet for her 12/10 excellent clinical/informational presentation on how VA c&p exams work and VA Examiner bias. We need all the ‘inside’ information we can get to obtain justice for Veterans. Beth was the VA’s medical examiner at the Dayton, Ohio VARO from 2012-2015. She reviewed the incoming clinician c&p exams for completeness and made her thoughts known as to whether the claim should be approved or denied. Much like a Detroit auto assembly line, you never get to see a completed car if you worked on the engine install line. So too, Beth. She did this for three years before she had to escape the madness. Fortuitously, she ran into a former claimant who still had not prevailed three years after she “approved” him and was later able to help him attain the proper rating. Following that, Beth parted company with VA, crossed over and became an accredited Agent for Veterans.
Without detracting from anything in her presentation, I wish to add to her list of things to look out for when dealing with VA prestidigitationists. The VCAA came out in 2001 forcing VA to be more up front with what we need to win. I’ve read a lot of c files and one thing jumps out at me. Veterans filed claims and dutifully filled out the VA Form 21-4142 and companion 21-4142a. This gave HIPPA permission to the VA to obtain your private medical records from your doctor. If you use VA medical and go to Death Valley VAMCs across our frozen plains for treatment, you only need to indicate this on your VA Form 21-526EZ. If you indicate there are private records, this triggers the VA mailing you the 4142s.
You fill out and return the documents to VA or to your VSO for submittal to VA. You believe VA will get your records. Shit, I did. Since the beginning of time, any request for medical records from a private provider requires a fee be charged to pull the records and copy them. In addition, this requires postage to mail them to VA. VA knows this. Since the VA refuses to pay for your records, they know this is a Mobius Loop; a zero-sum game. Reasonable minds would agree that in a nonadversarial ex parte system of justice, VA should call you and say Group Health shined them on and you need to fix it pronto if you want to win.
Here’s a decision I just excavated out of a client’s VBMS c file (now referred to as the efolder) last week while preparing to refile for him. Please note in the decision that the Vet is only informed at denial that VA never got the records back from the private doctor and that’s what caused the denial.
I will grant that with the VCAA threat now real, the Examiner did admonish Johnny Vet to go get the records from Group Health. But how many of you knew to do this or even understood the process of getting records and submitting them to VA? Wasn’t that the whole point of the VSOs and VA form 21-4142s? Sort of like one-stop shopping at WalMarket™, right? Booze? Check. Food? Check. New tennyrunners, ammo and deer tag? Check. Proceed to checkout, soldier. Nevertheless, it would seem the duty to assist should include a warning kind of like a trip flare before a denial rather than a belated one afterwards. Worse, even if the VA had received the medical records gratis, those records alone would not supply a medical nexus for his claim. Current records would only have informed the VA examiner of the current condition of the Veteran’s disabilities.
VA’s failure to obtain the records causes additional downstream problems for Veterans. If you don’t supply any current evidence of a medical disability or injury, VA will never offer you a c&p exam to find out if it might be service connected. Remember the Caluza/Hickson/Shedden triangle. Injury in service. Injury now. Medical nexus between the two. All the evidence in your service treatment records (STRs) is useless if you cannot prove you have a current disability. Never depend on VA to “build” your claim for you. Just like a three-card Monte game, you can’t win at this using VA’s rulebook.
Most Veterans arrive at the VA claims desk with two of the three Caluza elements- the injury/disease or risk factor in service and the current injury now. We expect VA to provide an independent medical opinion to solve the lack of the third requirement. Most Veterans don’t have $2-10K lying around to throw at this project. VA knows this. As Stalin was fond of saying- “It’s not how many votes you get but who counts the votes.”
Think of this as a recipe for baking cookies. You need a few things besides your good looks to make it happen. You need a doctor who writes nexus letters-not your own doctor who only has 15 minutes to see you, order and look at x rays, review your service records and write up an Independent Medical Opinion that it happened during service with accompanying cites to peer reviewed articles from JAMA. VA pays QTC, LHI and VES about $900 a pop for c&ps. That’s $900 for each DBQ they crank out and a medical opinion saying it did or didn’t happen in service. They don’t send out for c&ps with only one Caluza element.
Always remember there is nothing simple about this VA claims business. You keep your wallet in your front pocket and sit in a corner with your back to the wall. These fellers are slipperier than a pig dipped in Yellow 77. They’ve been doing this since the War of 1812 so don’t think you’re going to pull the wool over their eyes. Worse, since the introduction of the AMA in 2019, VA is screwing things up at a record pace and making more work in the process. As if that wasn’t a bummer, the Coronabug has made it even worse by forcing VA idiots to telecommute and harder to consult their supervisor on procedure. This creates a lot of VA Star Wreck® stories-Boldly going Nowhere.
The teaching moment is never trust VA to accomplish anything they offer to do for you. Obtain your own evidence and submit it-even if you’re using a VSO. I don’t know how many claims I’ve read that died for lack of a timely appeal because the VSO didn’t file a NOD or VA 9 in time to save it. You can’t sue free help. Many have tried it, too. In the end, if you lose, it’s because you depended on another or false knowledge. If you are unsure of how to win, don’t give up until you find a good VA practitioner.
Merry Christmas to all. Thank you Gary Larson for coming back to work. Gary’s my neighbor. He lives over on Fox Island.