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Getting a VA Medical Opinion Letter to Hurt Veterans -Development to Deny.

I just read a case I wanted to share with y'all.

It's an interesting case on an issue that occurs very frequently, but isonly recently getting more visibility at the Veterans Court.

It occurs when the VA Regional office gets a VA medical opinion letterwith the intent of hurting the Veteran's claim.

The Facts of the Payne v. McDonald Case.

Okay, folks, this a non-precedential single judge decision of theVeterans Court. So you know what that means, right? You can't relyon it as "legal precedent", but you CAN study it to learn how to improveyour claim.

This case was also argued by a pro-se Veteran - way to go raising thisissue, Ms. Payne!!

Here are the core facts of the Payne v. McDonald case.

Veteran goes before the BVA with what appears to be claims forservice connection of a back injury and Carpal Tunnel Syndrome(CTS).

The BVA remands the case back to the VA Regional Office, where aVA nurse issues 2 favorable opinions - clearly connecting theVeteran's injuries to military service.

Normally its just the Veterans that don't like Nurse's opinions - in thiscase, the VA must have been pretty hacked that a nurse woulddecide in favor of a Veteran....they sent the case out for MOREmedical opinions on the same conditions.

These second opinions came back as negative - examining the sameevidence to find that the Veteran's injuries were NOT related to hermilitary service.

Wrong Answer, VA.

The case trickled back up to the BVA, who affirmed the denial, given more weight to the negative VA medical opinionletter than it did to the favorable VA medical opinion letter.

The big reason?

Sometimes, I wonder if this is how VARaters get ready to write their decisions.Far too frequently, they make no sense at

all.

Nobody knows. In fact, I am not sure that the BVA Judge knew. If he did, he sure didn't say in the decision.

In fact, the Veterans Court specifically criticized the BVA, saying:

"It is not clear from the record why such additional opinions were required to develop the claim, reasonably raising anissue as to whether they were obtained for the purpose of developing negative evidence."

The Court remanded the case to the BVA to explain itself.

You Can't get a VA Medical Opinion Letter Just to Deny the Claim.

This actually JUST happened in a case for one of my clients.

We had a well-written and thorough opinion from a Private Medical Examiner -and a Nationally Renowned specialist in this particular area of medicine thatconnected the dots for the Veteran's condition - from service to discharge todiagnosis.

Frankly, it was one of the best opinions I've seen a doctor write in years ofdoing this.

The VA Regional Office decided that the favorable medical opinion letter wasquestionable under the "Benefit of Doubt" doctrine, sent it out for a VA medicalopinion letter, and this one came back negative to the Veteran.

Somebody must have been toking up on some pretty good weed when theywrote that decision - the Benefit of the Doubt doctrine says the EXACTopposite:

"When after careful consideration of all procurable and assembled data, areasonable doubt arises regarding the degree of disability such doubt will beresolved in favor of the claimant."

By twisting the Benefit of the Doubt doctrine to justify getting a VA medicalopinion letter that was adverse to the Veteran, the VA has clearly Developed the Record for the sole purpose ofgetting negative evidence.

This is called Development to Deny folks - be on the lookout for it in your claims and appeals.

How can you spot it? The VA goes out to get evidence to help deny the claim when everything in the record says thatthe claim should be granted.

How do you prevent Development to Deny?

You can't really prevent it - but you can protect against a Court endorsing this tactic.

Load your C-File with as much Competent and Credible Lay Evidence as you can find, then go out and get solidMedical Evidence to analyze the C-File, include the Magic Words in your private medical opinion.

Go take a look at Hart v. Mansfield, 21 Vet.App. 505, 508 (2007).

It will help you understand why the VA may not pursue development of the record if the purpose is to obtain evidenceagainst the claim.

Chris Attig, an Accredited Veterans Benefits attorney and Founder of the Attig Law Firm, PLLC is responsible for thecontent of the site. The principal office of Attig Law Firm, PLLC, is located in Dallas, Texas. Chris Attig is NOT

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