Case Study #3 Answers

NOD Filed 10-29-2012 The veteran filed a Notice of Disagreement on a 21-4138 with no additional evidence. Veteran did not file any additional evidence until his 2-20-2014 DRO Hearing, when he filed 4 pages of Service Treatment Records showing his treatment for a viral syndrome and 11-13-2012 letter from Dr. Stallman linking his DM1 to the viral syndrome.

NOD Filed 10-29-2012 DRO requested a new medical opinion after the hearing that was opined by Phil Leaf ANP-C signed 12-18-2014 in VAMC-Iron Mountain. The medical opinion matched the last VA medical opinion almost word for word. The DRO continued the denial with the same rationale as the last rating decision. Veteran failed to file his VA 9 in a timely manner.

What should the veteran do now? And What are the facts of the claim? NOD Filed 10-29-2012 What should the veteran do now? And What are the facts of the claim?

Facts Veteran was treated for viral syndrome while on active duty per his STR’s. Veteran presented with diabetic symptoms while on active duty per his STR’s. Veteran was diagnosed with Diabetes Mellitus Type 1 4 year following discharge from active duty. Veteran has been insulin dependent since his diagnosis. The true cause of Diabetes Mellitus Type 1 is unknown.

Can the Appeal be Reopened? The VA reviewed the evidence of record: The treatment reports from Dr O'Connor received November 30 2001. The treatment reports from Bon Secour received September 5 2001. The treatment reports from St Johns Family Practice received November 30 2001. The treatment reports From McLaren Health Care received November 5 2001. Service medical records

Can the Appeal be Reopened?

No, it cannot. But There is a Clear and Unmistakable Error in the processing of this claim.

Medical Opinions The VA is required to obtain a medical examination if the following 4 elements are present: The record contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of a disability; The record contains evidence establishing that an event, injury, or disease occurred in service; There is an indication that the disability or symptoms may be associated with the claimant’s active military, naval, or air service; and The record contains insufficient evidence for the VA to make a decision on the claim McLendon v. Nicholson, 20 Vet. App. 79 (2006)

Medical Opinion “[O]nce the [VA] undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, [it] must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.” Barr v. Nicholson, 21 Vet. App. 303, 311 (2007)

Medical Opinion Is the following medical opinion adequate? Why or why not? “I have reviewed the veteran’s claims file, taken a medical history from him, and performed a physical examination. It is my opinion that the veteran’s eye conditions are not caused by or a result of complaints and treatment on active duty.”

Medical Opinion No The examiner provided a conclusory opinion that did not contain an adequate supporting rationale for his or her opinion. A medical opinion “must support its conclusion with an analysis that the [VA] can consider and weigh against contrary opinions.” Steflv. Nicholson, 21 Vet. App. 120, 124 (2007). “[A] mere conclusion by a medical doctor is insufficient to allow the [VA] to make an informed decision as to what weight to assign to the doctor’s opinion.” Stefl, 21 Vet. App. at 125.

Medical Opinion “[A] medical examination must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008).

Medical Opinion The VA denied the first claim without ever requesting a C&P exam. The medical opinion in this case was made by the rating specialist. Medical opinions that are based on an inaccurate factual premise, have no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) “If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely.” Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012)

Medical Opinion The first indication that the VA considered opining the DM1 condition was when he Reopened the claim in 2006 for DM1 and Anxiety. The veteran submitted evidence to distinguish the difference between Type 1 and Type 2 diabetes. The VA examiner opined the anxiety and spoke about the veteran DM1 in the opinion. Once the VA undertakes the effort to provide an examination when developing a service connection claim….he must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (claim was rated after this CAVC decision)

Medical Opinion Once the VA gave the veteran a C&P exam is was in response to a favorable medical opinion from his treating VA doctor. Both opinions use the same rationale with one difference. The C&P examiner’s opinion states since the cause of DM1 is unknown it was not likely due to veterans viral syndrome the toxin exposure in service. “[A] medical examination must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In the veterans file, there is no evidentiary basis for the examiner to opine the viral syndrome and toxin exposure did not cause his DM1 condition. Medical opinions that are based on an inaccurate factual premise, have no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) “If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely.” Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012)

Due Process Even with the problems with the medical opinions there is still a greater issue with the C.U.E. The Fifth Amendment ( the Due Process Clause) to the U.S. Constitution provides that “No person shall . . . be deprived of life, liberty, or property, without due process of law.”

Due Process In Cushman v. Shinseki, 576 F.3d 1290, 1298 (Fed. Cir. 2009), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that: a vet's entitlement to disability benefits is a property interest protected by the Due Process Clause.

Due Process “[L]ay evidence is one type of evidence that must be considered, if submitted, when a veteran’s claim seeks disability benefits.” Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that an examiner’s opinion was inadequate, in part, because he did not indicate whether he considered the vet’s assertions of continued symptomatology).

Summary Clear and Unmistakable Error has been filed and is currently pending in the Detroit Regional Office. A copy of the CUE is available in your packets.

Questions ?