So you went out and bit the bullet – you paid a private doctor to offer an independent medical opinion whether your medical condition was related to service.
Or, you got your treating physician to write the opinion.
Either way, you thought your claim was locked up – after all, medical evidence of nexus in the form of an opinion letter can often be the dispositive piece of evidence in a VA Claim.
But – months later – you get a decision from the VA Regional Office denying your claim.
This time, they say that your medical opinion letter was not competent evidence. Or they didn’t give it any weight.
Or some other nonsense excuse.
If that happened to you, I want you to ask:
Did your VA Independent Medical Opinion have All the “Magic Words”:
1) “I reviewed the Veteran’s entire C-File”.
I’ve seen the VA sink more independent medical exam opinions because they lacked this simple phrase.
Here’s the VA’s thinking: if your doctor did not review your entire Claims File before making an expert opinion, he or she made an opinion based on less than all the information.
Therefore, the VA says, the opinion is not credible.
So, add this to the list of reasons you need to get your C-File. How do you get a copy of your C-File? Read up on the 3 ways to get a copy, or download the eBook “Take Back the Power: How to Get a Copy of Your C-File”.
2) “At least as likely as not”.
These magic words are the ones that show the VA – and later the BVA – that you have met your “Burden of Proof”. That you have put enough evidence into the record to support your claim.
These are hard words for medical experts to understand – seriously.
They are used to dealing with medical causation issues under State laws that require them to show something to a “reasonable degree of medical certainty”. And if they want to use that phrase, go for it.
It’s a more substantial conclusion of medical causation, and the VA docs will have to work overtime to discredit that opinion.
Keep in mind, though, that any phrase other than “at least as likely as not” is going to confuse the VA.
3) The doctor must explain his/her conclusion.
Remember back in grade school math class – we could get all the answers right on our homework or on a test, but our teacher didn’t care because she wanted us to “show our work”.
Same thing for an independent medical opinion.
The doctor has to explain why he or she reached the conclusion she reached. It’s not enough to say that your Sleep Apnea is at least as likely as not related to your military service.
The doctor has to explain WHY he or she reached that conclusion. In these situations, it is helpful to have a wealth of lay evidence about your symptoms and limitations in the file.
Lay evidence is the magic bullet, and medical evidence is the rifle – for an independent medical exam to be helpful, you are going to need a lot of lay evidence.
4) The doctor must explain any contrary opinions in the file.
I don’t like going to a DRO hearing or the BVA with a situation called “Dueling experts”.
Here’s how that situation arises:
On one hand, the VA has performed a C&P exam and reached a conclusion that a Vet’s medical condition is not related to service. On the other hand, the Veteran has received an independent medical opinion that concludes exactly the opposite – that the Vet’s condition IS related to service.
The BVA will have to resolve who is right by weighing the evidence. I don’t trust the BVA to properly weigh evidence.
So when we have a medical expert offer an opinion, we ask him/her to review the VA C&P Exams and if there are any contrary conclusions, explain how those affect the doctor’s opinion.
Here’s how that looked in a recent expert opinion we submitted to the VA:
“The VA’s report of exam by the [VA Doctor] is factually and medically inconsistent with the rest of the factual and medical documentation in the C-File.[The VA’s Doctor] asserts in his concluding comments: “The Veteran’s central pathology is his antisocial personality disorder.” According to the DSM-IV, a requirement for diagnosis of antisocial personality disorder is evidence of 12 months of more of repeated violation of rules and age-appropriate social norms prior to the age of 15 years. [The VA Doctor] does not provide any evidence of this required criterion in his report.”
Bang. Final nail in coffin. End of credibility of VA Comp and Pen examiner.
5) Add a CV or resume.
Your medical expert has to be competent to render the opinion. Legal competence is a tricky concept, and no lawyer or court has ever explained it to my satisfaction.
The Attig definition of competent evidence: the proponent of the evidence knows what the heck they are talking about.
In layman’s terms, however, your Medical Expert has to demonstrate that they have the required expertise. For example, don’t ask a gastroenterologist (stomach) for a medical opinion on the causation of your back pain.
How do you show the VA your expert is competent? Ask for a copy of the doc’s CV (resume) to include with the opinion.
Do You See the Theme in the Magic Words?
There are actually several themes that run through all of the above, but I want to talk to you about one in particular:
To get a competent medical expert opinion, you are going to need a copy of your C-File for the doctor to review.
Getting an Independent Medical Opinion in your VA Claim without a copy of your C-File is a lot like going to spaghetti dinner without a fork – you can do it, but its going to be a messy ordeal.
If you followed my 8 Steps to Improve Your VA Claim, you would have already requested and received a copy of your VA C-File in Step #2.
You would be well on your way to diagnosing – and ultimately fixing – the problems in your VA Claim or Appeal.
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