Medical Opinion Trumps Rater's Opinion - Where Is This?

[tssnave]

I need some help here. I'm trying to work on my NOD and it is slow going. I have been out of the loop for a couple of months (have not been doing well) so this may be or have been on hadit before and I just missed it in my search but I thought I read somewhere that the VA reg states that a rater cannot use his/her own opinion over a medical opinion. I would like to cite that in my NOD but I don't know the reference.

Would someone please tell me if I'm either crazy (never mind, that's the one thing the VA and I do agree on so I don't need confirmation of that) or give me the citation of where it is stated that a medical opinion trumps a rater's opinion.

Thanks,

TS Snave

Edited July 10, 2007 by tssnave

[Berta]

I just posted it the other day- I think it was under an Evidence topic.

[Berta]

I think this is it:

http://www.hadit.com/forums/index.php?showtopic=11443

[tssnave]

Berta,

Nice picture - that's a new addition since I was last reading the board.

Thanks for the info. For those who only have access to the VA website, here is the link to this information in the M21-1MR, Part III, Subpart iv, Chapter 5

http://www.warms.vba.va.gov/admin21/m21_1/...v/ch05/ch05.doc

Thanks,

TS

[Berta]

Thanks TS- I always check the M21-1 stuff for the changes and their dates-

They upgrade it often-I cannot live without M21-1 and the rewrites-

38 USC -the laws that control our claims

38 CFR -the regs that manifest the laws

M21-1 the handbook for VA personnel and raters as to how to use the regs to work claims.

[RockyA1911]

M21-1MR, Part III, Subpart iv, Chapter 5, 5 Medical Evidence, section d., page 5-10

d. Rejecting Medical Evidence

"Unless the historical facts upon which medical conclusion is based are dubious or untenable, reject medical evidence only on the basis of other medical evidence.

The RSVR may not rely upon his/her own unsubstantiated medical conclusions to reject expert medical evidence provided by the claimant.

Reference. For more information on the basis for rejecting medical evidence, see

Shipwash v. Brown, 8 Vet. App. 218, (1995), and Colvin v. Derwinski, Vet. App. 175 (1991)."

[Hoppy]

TS,

Are you working with an SO. Even thought some SO's appear not be real motivated I think they can help with perspective and they will listen if you have good points to make.

I am not sure your cases involves a raters opinion rebutts a doctor based on what I recall. You just might be asking for a higher rating than what is supported by the evidence of record. I think we need to kick this around. Post some more about the specifics of your case. Then we can all help.