New Member WYN-WYN poses an interesting question. She had the unfortunate luck to be discharged in 1979 due to injuries sustained in the service. Her Medical Evaluation Board (MEB) assigned her a 10% rating for both knees and diagnosed other debilities. The only problem was no one paid her. Thirty years later she discovered the discrepancy. VA in its on inimitable way, promptly owned up and cut her a check. What they didn’t do is run out and get a C&P to determine her present level of disability. When they finally got around to giving her one, they entered into the records that she had not reported for same. They also opted to consider the injury static as in the same amount of disability in 1979 with no allowance for an increase in disability. Failing to perform in this regard is a major violation of their own regulations and they know this. The M21 computer voice automatically kicks in when these things pop up and says “Warning! Warning! Engage Fenderson staged rating immediately. Proceeding further will cause CUE!” The list of their intransigence is much longer but those were the worst.
VA has the WARMS computer system which virtually completes the claim after the parameters have been inserted. This also explains the 60% error rate we read about. If the operator inserts incorrect or incomplete information, the M-21 function doesn’t always complain and spit it out for repair. Add in a hectic, one-claim-per-hour production line and you see the magnitude of the problem. WGM’s CUE is another classic example. Leroy Macklem’s was the jewel in the crown.
For Veteran’s edification, I will quote from the Great Veterans Benefits Manual on the subject of the Duty to Assist in these instances. I won’t bloat the post with all of it (footnotes etc.) but would be happy to sent it to interested parties. I understand that not everyone is well-heeled enough to run out and buy the complete $250 Lexis Nexis. I don’t think they’ll put me in jail for printing some here.
12.5.4.4 In Disability Compensation Claims, VA Duty to Assist in Obtaining Medical Examinations or Medical Opinions
The VA is required to provide a medical examination or opinion when such an examination or opinion is necessary to make a decision on the claim. The law further provides that a medical examination or opinion shall be considered necessary to make a decision on a claim if the evidence of record, taking into consideration all information and lay or medical evidence (including the claimant’s statements): (1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (2) indicates that the disability or symptoms may be associated with the claimant’s active service; but (3) does not contain sufficient medical evidence for the VA to make a decision on the claim.
In McLendon v. Nicholson,202 the CAVC described four elements that govern when a medical examination or opinion is necessary. The Court stated that an examination or opinion is necessary when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim.
With respect to the third element, the Court stated that it was only necessary that the evidence indicates that there may be an association between the current disability (or persistent or recurrent symptoms of a disability) and active service (or another service-connected disability). The Court stated that this was a low threshold, and the type of evidence that could satisfy this threshold could include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.
Turning to the quality of the medical examination, the duty to assist includes conducting a thorough and contemporaneous medical examination when the medical evidence in the record is inadequate. An adequate medical examination is based upon consideration of the veterans prior medical history and examinations and also describes the disability in sufficient detail so that the Board’s evaluation of the claimed disability will be a fully informed one. Furthermore, once the VA provides an examination, even if not required to do so, the examination must be adequate. At the very least, the claimant must be notified why an adequate exam will not or cannot be provided. However, the fact that a VA examiner stated that an opinion cannot be rendered without resort to mere speculation does not per se render the opinion inadequate under the duty to assist.
The VA has the authority to gather additional evidence, including negative evidence obtained through a VA medical examination that could result in the denial of a claim. While the VA cannot be arbitrary and capricious, and the VA must procure evidence in an impartial, unbiased, and neutral manner, the decision in Douglas (Raymond) v. Shinseki holds that the Secretary has the authority to gather all information and evidence relevant and material to the claim. This means that the VA can develop evidence that could turn out to be positive or negative. However, the VA cannot develop a claim merely to obtain negative evidence.
Regarding the ability of the VA to seek clarification of VA or private examinations, the CAVC held in Savage v. Shinseki, that nothing in VA’s statutes or regulations, or in this Court’s caselaw, limits VA’s authority or duty to return inadequate medical examination reports to only those reports prepared by VA medical examiners. The CAVC found that when VA concludes that a private medical examination is unclear or insufficient, and it reasonably appears that a request for clarification, both as limited elsewhere in this opinion, could provide relevant information that is otherwise not in the record and cannot be obtained in some other way, the Board must either seek clarification from the private examiner or the claimant or clearly and adequately explain why such clarification is unreasonable.
In addition, the duty to assist requires the VA to:
> Obtain a specialized medical examination when one is recommended by one of its own doctors; and
> Obtain an independent medical expert opinion when there is diverse and conflicting medical opinions about an appellant’s condition.
What we have here is a contretemps of much interest. vA has been remiss for decades. When tasked with the job of rendering an impartial rating commensurate with her circumstances, they send her out for the Dog and Pony show exam. They lose it. Therefore, they rate on what they have, knowing full well it’s inaccurate. What a huge waste of time and resources. Hasn’t anyone down there heard of Alexander Graham Bell’s wondrous invention? A simple phone call asking if Wyn Wyn had neglected to attend this exam would have gone a long way towards reducing global warming and the production of more pulp for paper. vA doesn’t think like this. They need to take some remedial courses on non-linear problem-solving if they hope to improve their backlog issues.
Wyn Wyn has graciously agreed to allow us to view her sanitized records here soon to help others avoid some of the stupidity she has encountered. I have pointed this out many times in my book as well. One of two things is afoot. Either they are well aware of the information (or lack thereof) and choose not to correct their records or the obverse is the case. That being that they can’t be bothered to fix it or they are totally oblivious to the problem. Judging by the pictures of the bloated C-files stacked haphazardly down at the cigarette RO in North Carolina, I suspect the oblivious answer is correct.
When I had my BVA hearing in April of 2011, they wheeled in my 23-year record of paperwork on a cart. I suspect the three volume C-file weighed in excess of 35 lbs. and dwarfed most of the ones seen in the pictures. Attempting to assimilate a file of that magnitude and make coherent conclusions in the helter-skelter environment the vA employees inhabit is unreasonable and is counterproductive. The VLJ never even touched it and I brought my own copies of pertinent documents. Had I been forced to sort through it, I would have spent hours searching as they do. A compendium of salient facts is all that is necessary for an informed conclusion. That could be done with 15- 25% of the paperwork I see coming out of the place. They’re drowning in dead trees.
Of note: Wyn Wyn has been suffering at the hands of well-meaning VSOs but has finally determined that this will require some DIY, hands-on, tender love and care in order to reach fruition. Waiting for a service representative to grab the bull by the horns may not have the desired results in this lifetime. We’ll keep you posted on her continuing saga.
asknod
Bethanie Spangenberg
kcraveiro
robinhoodesqvetsatty
Wesley McCauley
