Refuting VA Exams Part III

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In Parts I and II of this series on how to refute VA exams or VA medical opinions, we discussed situations where the VA examiner relied on inaccurate facts or failed to provide adequate reasons for his conclusion. In today’s installment I am going to focus on the VA’s failure to follow up on a recommendation for further evaluation by a specialist.

As we discussed in Part I, there are certain criteria that trigger VA’s duty to provide a medical opinion. There is also case law from the U.S. Court of Appeals for Veterans Claims that requires VA to ensure the adequacy of any medical opinion it provides. In addition, as a veterans disability attorney who provides help for veterans when VA denies claims, I have seen another situation where VA fails in its duty to assist veterans. That is: when the VA examiner makes a recommendation for a specialist evaluation and the VA never follows up to provide the specialist evaluation. Under current law, the VA’s duty to assist cannot be squared with a situation where the VA does not follow up in providing an evaluation by a specialist.

Here’s an example. In a claim for service-connection for hearing loss the VA has the veteran examined by an audiologist, who is not a medical doctor. The audiologist says that there is no evidence that the veteran’s hearing loss is related to noise exposure in the military. But, he adds a brief comment that a medical evaluation would be helpful. The VA then denies the claim. The evidence does suggest a non-noise-related cause for the hearing loss but VA never investigated the possibility of an in-service medical cause for the hearing loss. Based on the case law from the U.S. Court of Appeals for Veterans Claims, VA’s failure to refer the veteran to a medical doctor for evaluation equals a failure to comply with its duty to assist. If the VA examiner in your case suggested that further follow up by a specialist or a medical doctor would be helpful, and VA ignores it, then you should assert that the negative VA medical opinion is, by itself, insufficient to form the basis of a denial.

In general, VA has a duty to fully and sympathetically develop your case to the optimum. This means that it must recognize that you are a medical and legal lay person and they should follow up on any suggestions in the file that may indicate other possible theories or causes for your disability. In other words, it is wrong for VA to be willfully blind to the obvious in-service causes of your disability. Too often VA ignores the more nuanced causes of your disability simply because your own theory of the case is so easily disregarded. In other words, the VA will often magnify your own theory of the case because they know it has no merit. It’s their effort to create a straw man, which they can shoot down in a VA denial of your claim. This creates a smokescreen to mask the true cause of your disability that can be established by the service treatment records–which you are unaware of because of your lack of medical or legal training. Sadly, VA frequently makes no effort to investigate other possible theories that go beyond what you may have specifically raised in your arguments.

The reality of the VA claims process underscores the need to develop a comprehensive legal and medical strategy. All possible theories must be fully investigated, but sometimes it’s difficult to do without the assistance of a veterans disability lawyer.

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Eric Gang

Eric A. Gang, Esq. is a veterans’ disability attorney who represents disabled veterans nationwide in their appeals for VA disability benefits. He has litigated over 500 appeals at the U.S. Court of Appeals for Veterans Claims and has recovered millions of dollars in retroactive benefits for disabled veterans. His work has been mentioned in media outlets across the country. He publishes and lectures widely in the area of veterans benefits. You can reach him at (888) 878-9350 or www.veteransdisabilityinfo.com.



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