I have reviewed this patient's historical records/testimony/lay statements/personnel records and VA claim's folder at the BVA/RO as available. l have liberally applied every possible sound medical etiology/principle to at least the 50% level of probability, in order to link all this patient's currently diagnosed primary and secondary conditions to military service, which is consistent with the directives and guidelines provided to me by the VA and Congress concerning service connection/VA medical diagnostic code (MDC) assignment.
The purpose of this medical opinion is to create a nexus between his current spine diseases to his military service time and the concept of reasonable doubt and three-judge VA Court case concerning credible evidence. This opinion is not meant to provide any form of care or treatment and a doctor patient relationship has not been established. The copies of the Claims file records provided to me will be shredded after I complete this review in accordance with VA policies on record destructin.
I am very highly qualified to analyze these medical cases as I have 11 years of Post Graduate professional medical training, I have worked as an accredited veteran service representative for 9 years, I have been an appeals consultant to the BVA's co-located veteran service organizations appeals divisions for over 14 years and in this role I have attended several RO, DRO and BVA administrative Law Judge hearings as an expert witness both locally and in regional centers. Furthermore, I have been a MRI imaging research consultant to the National Institutes of Health (NIH) for over a decade but most germane to veteran IMEs, I have done over 3000 IMEs/second medical opinions for disabled veterans. Thus, I have likely done and reviewed more professional IMEs for American soldiers/veterans than any other US sub-specialty trained physician.
In analyzing these issues, I have been advised to use the reasonable doubt concept as per the Board of Veterans Appeals (BVA) in Washington D.C. because often the service member is cared for/treated in an austere environment without the benefit of sophisticated imaging/surgical/medical care or provided treatment solely by board certified/eligible physicians and most of the deployed physicians do not have timely access to the medical literature. For example, recent research shows a significant inability of physicians to access the medical literature/resources as only "… 19% of physicians had daily access to the Internet while deployed…" ( Ref: Kane, et. al. Military Medical informatics: Accessing Information in the deployed environment Military Medicine vol.176, no. 3, p. 259 March 2009). Furthermore, often the service time medical records are incomplete or missing due to combat or other strenuous condition (hardship-unusual -exceptional) or record/transfer storage facility losses/fires and these soldiers are exposed many types of medical dangers while performing hazardous duty in the U.S Armed Forces. Finally, often these patient cases have been pending for decades and thus the interim treating physicians have either retired or destroyed their medical records. Some of these lost record problems are being resolved with the advent of the seamless military/VA records system used now in 2009 and years forward.
The precedent setting 3 judge Court of Veterans Appeals (CVA) case Polovick v. Shinseki (Kasold, Hagel and Davis--22 April 2009) states in part "….presumption of service connection is warranted …when a positive statistical association exists …[and]…. when the credible evidence for the association is equal to or outweighs the credible evidence against the association…[based] …on sound medical and scientific information….[and]… statistical analysis cannot be the sole basis for determination…and a medical professional opinion cannot be rejected simple because the opinion is based in part on statistical analysis. Rather it is the total analysis provided by the medical professional that must be weighted and considered by the board….[rejection of a medical opinion]…because it was not consistent with data in the IOM (Institute of Medicine) …for presumptive disease - is inadequate…[and]….Agent Orange Updates use only general statistical analysis …not the likelihood that an individuals health problem is associated with or caused by the herbicide in question…"
In order to make this evaluation, I have carefully reviewed the following available information:
Patient's Claims file, in its entirety (particularly Service Medical Records and Post-service Medical Records);
Patient's imaging reports and available imaging studies raw data;
Patient's lay statements (dated 2009);
Other medical opinions; and
Medical literature review.
TERMS:
Reasonably Medical Certainty: often used by attorneys in instructions to physicians in medical malpractice cases and sometimes incorrectly used by VA leadership in instructions to physicians in VA benefit cases, but the correct threshold standard for VA cases as per the Code of Federal Regulations (CFR) and Congress for granting benefits is the "as likely as not" concept (50-50) which means that the medical evidence/medical principles for and against the association is at least evenly divided. This is a different standard than the one used in clinical medical for evidence, which is set at the 95% confidence level because the VA regulations have been liberally and generously established by our US citizens who recognize the risks and value of service to our country. This is the benefit-of-the-doubt rule in that where "…an approximate balance of positive and negative evidence…" the veteran shall prevail on the issue. Ashley V Brown 6 vet App. 52. 59 (1993) and Massey v. Brown, 7 Vet App. 204, 206-207 (1994) and it interfaces with the higher evaluation concept. The higher evaluation concept states that the closest highest rating (MDC) will be assigned if two nearly equal MDCs (ratings) apply (38 CFR , 4.7).
"is due to" (100% sure)
"more likely than not" (greater than 50%)
"at least as likely as not" consistent wit5h reasonable doubt (equal to or greater than 50%)
"not at least as likely as not" (less than 50%)
"is not due to" (0%)
Ref: VA's Clinician's Guide for Disability Examination;
much more likely than not = greater than 75% level of certainty. very likely = greater than 90% level of certainty
Reasonable Doubt = "The Reasonable Doubt rule is one of the most important liberalizing rules that VA uses to grant veterans benefits and is defined under 38 CFR §3.102. The Reasonable Doubt rule means that when there is an equal balance of evidence for and against the claimant [50% to 50%], that the claimant be awarded their claim. This is just like in baseball as the 'tie goes to the runner.'"
Ref: Theresa Aldrich's Veterans-claims-self-help-guide
Or legally means: " When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because an approximate balance of positive and negative evidence which does satisfactorily prove or disprove the claim."
Ref: BVA Administrative Law Judge
Duty to assist: Regards outstanding medical information and the VA's responsibility to notify the patient of evidence needed from the patient and which information the VA will attempt to obtain within one year of the VA notice date.
Chronic illness = signs and symptoms that extend for over one year.
MDC = medical diagnostic code
HTN = hypertension
MS = multiple Sclerosis
TDIU = total disability individual unemployability
OPINIONS:
The following opinions are all to a high degree of medical certainty at least at the "much more likely than not" level which would equate to a greater than 75% level of certainty.
Please note that the VA has special rules concerning medical certainty that have been generously weighted in favor of the veteran (benefit of the doubt) by Congress as often these young patients are deployed or are in war zones where full and complete medical care/records are not possible and these patients are often exposed to significant unknown toxins and extremely stressful environments. Thus I write these reports not at the 95% confidence level used in clinical medicine but rather at the "much as likely as not" or greater than the 75% level of confidence. VA law in the federal code at 38 CFR §3.102 mandates the at least as likely as not level which is set at the 50% level of likelihood. I am a National Institutes of Health (NIH) trained researcher and associate professor and I therefore understand the limitations and imperfections of clinical science but at the same time I have written these types of opinions for a couple of decades and have provided thousands of opinions and it is my opinion that in order to be fair to all veterans, any physician writing medical opinions for veterans should have a good working knowledge of the basic VA laws concerning benefit of the doubt covered in the federal code (in addition to medical principles), or the unknowing physician may inadvertently penalize the veteran patient, which means, at the extreme, that that patient may not be eligible for continued or future VA medical care/treatment.
I do not have a vested interest in the assignment of this patient's medical diagnostic codes as I an expert a paid a flat fee prior to the writing of any of my reports. This payment method is similar to payment arrangements of any second medical opinion consultant-in or outside the VA. (n.b. I do a fair amount of pro-bono cases for veterans) Thus my opinions are based on the judicious application of medical principles/my training/experience unperplexed and unbiased by considerations not connected with the Hippocratic Oath.
I do not know the attending physicians or hospital administrative staff who have cared for this patient and I do not have any commercial or personnel interest in any equipment/devices/prosthetics or pharmaceuticals used in the care of this patient.
This report conforms to the federal guidelines on expert testimony as they apply to medical data/facts, reliable principles/methods (see my attached C.V. and book references), and the application of medical principles/methods to the facts/data and is therefore not in any way speculative.
Data/Facts and Application of medical principles/methods to the patient's facts/data:
Patient entered service fit for duty without any doctor-diagnosed illnesses.
Deluca factors for decreased ROM such as pain, fatigue, weakness and decreased endurance on repeat testing were considered.
Cervical Spine/Neck Problems: Patient had several injuries to his upper extremities and neck during service as per the attached lay statements. He currently has spinal stenosis in his cervical spine and he has had two (2) cervical ACDFs.
It is my opinion1 considering every possible sound medical etiology/principle, to at least the 50% level of probability, that his current neck problems are due to his experiences/trauma that the patient had during military service for the following reasons.
1. He entered the service fit for duty without any doctor-diagnosed illnesses.
2. He likely had a neck injury when he was drug across the LZ in the 9 Jan. 1970 parachute jump.
3. He had a serious head injury in service as documented in his records and lay statements (See attachments)
4. He had medical visits for bowel problems while in service as below:
5. His current symptoms are per the attached lay statements.
6. It is known that such an injury both precipitates and accelerates the onset of the degenerative process of the spine.
7. His records do not support another more plausible etiology for his current neck pathology or other risk factors (in or out of service) to explain his problems other than his service time experiences.
8. The time lag interval between his service time injury/illness and his development of signs and symptoms is consistent with known medical principles and the natural history of this disease.
9. No other physician has opined to the contrary.
10. This opinion represents sufficient and competent medical data and is comprehensive enough for the VA to establish a rating and MDC for this organ system problem without the need for additional work-ups or development.
Problems:
It is my opinion1 considering every possible sound medical etiology/principle, to at least the 50% level of probability, that his problems are due to his experiences/trauma that the patient had during military service for the following reasons.
1. He entered the service fit for duty without any doctor-diagnosed illnesses.
2. He likely had a neck injury when he was drug across the LZ in the 9 Jan. 1970 parachute jump.
3. He had a serious head injury in service as documented in his records and lay statements (See attachments)
4. He had medical visits for bowel problems while in service as below:
5. His current symptoms are per the attached lay statements.
6. His records do not support another more plausible etiology for his current neck pathology or other risk factors (in or out of service) to explain his problems other than his service time experiences.
7. The time lag between injury in service and current pathology is consistent with known medical principles and the natural history of this disease.
8. No other physician has opined to the contrary.
9. This opinion represents sufficient and competent medical data and is comprehensive enough for the VA to establish a rating and MDC for this organ system problem without the need for additional work-ups or development.
.
Cardiac
It is apparent from the above record that this patient had hypertension (diastolic and systolic) while in the service based on the following definition of Cecil (page 253).
It is my opinion1 considering every possible sound medical etiology/principle, to at least the 50% level of probability, that his current cardic problems are due to his experiences/trauma that the patient had during military service for the following reasons.
1. He entered the service fit for duty without any doctor-diagnosed illnesses.
2. He likely had a neck injury when he was drug across the LZ in the 9 Jan. 1970 parachute jump.
3. He had a serious head injury in service as documented in his records and lay statements (See attachments)
4. She had medical visits for bowel problems while in service as below:
5.
6. His current symptoms are per the attached lay statements and as follows:
7. His records do not support another more plausible etiology for his current neck pathology or other risk factors (in or out of service) to explain his problems other than his service time experiences.
8. The time lag between injury in service and current pathology is consistent with known medical principles and the natural history of this disease.
9. No other physician has opined to the contrary.
10. This opinion represents sufficient and competent medical data and is comprehensive enough for the VA to establish a rating and MDC for this organ system problem without the need for additional work-ups or development.
11.
Hearing loss/tinnitus (on both a secondary/aggravated basis as well as on a direct basis)
is my opinion1 considering every possible sound medical etiology/principle, to at least the 50% level of probability, that his current hearing loss/tinnitus problems are due to his experiences/trauma that the patient had during military service for the following reasons.
The patient has significant hearing loss as I was not able to converse easily with him during normal conversation. He complains of ringing in his ears.
It is my opinion that his current hearing loss and tinnitus (ringing) is due to his exposure to loud noise while in service as his records do not contain another more likely etiology for his advanced for age hearing loss and tinnitus.
.
Respectfully submitted,
_____________________________________________________________________________________1. Please note that this opinion is academic in nature and as such is not meant to reflect negatively on any other professional who might hold an alternative professional opinion.
----------------------------------------------------------------------------------------------------------------------------------------------- ******The following five paragraphs are provide credentialing information for the benefit of the VA raters and/or external Physician experts who are lay/medical personnel located in Washington D.C. or regional offices and therefore would not and often do not have first hand information about my background or experience but need this information to accurately determine the probative value of my opinions. This information is not routinely provided in standard clinical medical opinions but should be required of all physician evaluators who provide medical opinions for veterans as this is a nationwide service and the background credentialing information on physicians is often only known to the local/regional university, hospital, or clinic. I have been asked to provide this information by way of multiple formal opinions from the Board of Veterans Appeals (BVA) in Washington D.C.***** ----------------------------------------------------------------------------------------------------------------------------------------------
1. Probative Value and Curriculum Vitae (C.V.): I have conducted a clinical interview and I have attached my C.V., which outlines my extensive multi-system training, board certifications and experiences. My multi-system training means that I am able to opine on all areas of medicine. My C.V. documents the probative value of my opinions and any comparison between physician opinions should be partially based on their respective C.V.s. (As an aside, I have noted that often the VA physicians who opine on IMEs do not provide their C.V.s or medical board status and this information should be included with every IME so that an analysis of the probative value of the medical opinion can be accomplished by the VA rating team because without the C.V. to look at any analysis of a physician's credentials would be/is arbitrary and biased due to lack of critical information)
2. Expertise-Special Knowledge:
I have special knowledge in the areas of neurological-spine diseases, as I have radiology sub-subsection training and testing in these regions as of my comprehensive written and oral 1990 boards. I am a board certified specialist (national board of medical examiners and American Board of Radiology with a 4 year residency and 3 year Fellowship for a post graduate total of year-7 [PGY-7] level of training, which is similar to the number of PGYs required for Neurosurgery training, am a Senior Member of the American Society of Neuro-Radiology (ASNR), and am an attending level school of medicine Associate Professor. It is important to note that vast majority physicians in America are trained only at the PGY level of 3. For example, almost all the primary care physicians in internal medicine, neurology, pediatrics and family practice are all trained at the PGY-3 level. By comparison orthopedic surgeons are trained at the PGY-5 and most general surgeons have PGY 5 levels of training and specialty-trained surgeons are trained at the PGY 6 and 7 levels. I have completed a fellowship in Neuro-Radiology at the NIH (National Institutes of Health) and as such I am one of about 3000 neuro-radiologists in America at the PGY-7 level of training and one of less than a dozen who have completed at least a 2 year NIH experimental neuro-imaging research fellowship in the laboratory of diagnostic radiology research (please note that there are about 700,000 physicians in the US).
Additionally, I have performed and/or interpreted plain x-rays, CT scans, ultrasounds, angiograms, arthrograms, barium studies, contrast studies, PET, nuclear medicine scans, and MRI (basic and research/experimental) scans as appropriate on thousands of patients with this patient's type of primary and secondary disorders, and I have correlated my findings with the clinical record/physical exam. Please note that this patient's claim hinges on the historical imaging findings.
I also have a Masters degree in Business Administration (MBA--Golden Gate University 1981) and have been employed as a Medical Director of a large ($1-200 million annual revenue) philanthropic disabled veterans organization and part of my duties involved reviewing medical records for the employment of disabled personnel and perform site visits to review quality of care at VA's largest tertiary care hospitals and nursing/domiciliary/state homes. I therefore have both practical and theoretical experience/training in the issues surrounding the employment of disabled workers and needs of patients for long term care. (Please see my attached C.V.)
3. Competency, credible and professional opinions:
I am highly competent and credible to make the professional medical opinion/s herewith because I am an actively licensed physician (Maryland) with extensive specialized training and experience (22 years of IME production) in the areas of interest (as described above). I have performed several hundred VA IMEs and I am familiar with the VA rating schedule as published in the CFRs/U.S. Codes. In fact, I have worked as a VA accredited Veteran Service Organization (VSO) representative for 8 years with two different VSO groups (PVA and DAV). I have reviewed the medical record and the patient's lay statements, I have conducted a clinical interview, I have referenced current applicable publications (explained how they apply to this patient's medical data set), I have examined the patient by way of reviewing his pivotal imaging study reports, I have reviewed pertinent positive and negative medical data, and I have reviewed/referenced other physicians professional medical opinions1.
4. Medical examination:
In this case a face to face hands-on medical examination is not needed.
5. Credentialing/Depth of knowledge:
The VA has recently started to extensively use non-credentialed Nurses/Nurse Practitioners (NP) and Physician Assistants (PA) to provide forensic opinions in these complex cases that often have medical records that extend over decades. These non-MD's do not have the depth of knowledge needed to accurately evaluate the veteran-patient's primary and secondary medical problems; therefore the quality of these important medical exams is diminished by using these non-licensed practitioners (AKA Dumbing Down). These reviewers provide sub-optimal reviews simply because they do not have extensive training or experience as compared to a physician. The axiom "...You see what you look for and you look for what you know..." applies to these complex veteran cases, which involve multiple organ systems and which involve pathologic processes that extend over decades. These sub-optimally trained reviewers do not know because of limited training many subtle aspects of medicine and therefore are unable to see or look for the linkages necessary to create a fair nexus or analysis of any veterans' medical issues. Thus these supervised only/novice practitioners are not able to consider every possible sound medical etiology/principle as is required by VA mandate for assignment of medical diagnostic codes. MD expertise is required for these complex cases as is well-recognized by the VA, which has recommend specialists analysis for forensic rating code assignments via the VA court decision in Hyder v. Derwinski, 1 Vet. App. 221 (1991).
My review on the other hand is based on a deep body of knowledge and training acquired over almost 30 years as is illustrated in my C.V. contained in the file and this CV is compared to the C.V.'s of a standard nurse/PA/health technician (HT)/nurse practitioner (NP) below:
