This decision bears repeating here as many veterans find the VA has ignored their probative medical evidence,specifically to include IMOs.
Basic VA case law-reiterated in Mariano states:
“The Secretary shall consider all information and lay and
medical evidence of record in a case before the Secretary
with respect to benefits under laws administered by the
Secretary. When there is an approximate balance of positive
and negative evidence regarding any issue material to the
determination of a matter, the Secretary shall give the
benefit of the doubt to the claimant.” 38 U.S.C.A. § 5107.
also : 38 U.S.C. § 5107( (when there is approximate balance of positive and negative evidence regarding any issue material to determination of matter, Secretary shall give "benefit of the doubt" to claimant). “
and:
“Finally, with respect to this December 1998 VA examination, the Court notes that it is not at all clear from the record on appeal (ROA) why VA concluded, in light of the unrebutted evidence then of record, that it was necessary to obtain that medical opinion. Because it would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue further development where such development reasonably could be construed as obtaining additional evidence for that purpose. See 38 U.S.C. § 7104(d)(1).”
Also many BVA decisions reference Mariano such as
“Additional development by the Veterans Benefits
Administration Appeals Management Center (VBA AMC) would only
serve to further delay resolution of the claim. Bernard,
supra. See also Mariano v. Principi, 17 Vet. App. 305, 312
(2003) cautioning against seeking additional medical opinion
where favorable evidence in the record is unrebutted”
If the VA fails to consider and address any of your medical evidence-
in the form of an IMO that falls into the VA's definition of "competent medical evidence"---fails to refute or rebutt this evidence in any way-
especially if they fail to even consider it-
you can raise Mariano if they try to go fishing for a VA doc to deny the claim.
I was victimized by the RO this way in 2005.
In 2005 my rep at the RO said he was sure he would come out with a favorable award minutes before a DRO conference.
He had unrebutted medical evidence from me within 2 IMOs and considerable other medical evidence.
I pointed out (which he well remembers)-that I too was competent enough to prove VA committed malpractice in 1997 so my medical opinions as well as the IMOs should be considered.
and he was correctly relying on Relative Equipoise-even though my evidence was in VA's hand for a year already and unrebutted.
I also made sure he used an additional tactical maneuver-
and I made him say this all back to me-
the way I wanted three significant points presented to the DRO.
I had 3 specific ways they could award.
The subsequent SOC reveals he did none of this-and never even mentioned the IMos to the DRO or anything else in support of my claim-
he will have to answer to that to the GC if I file a complaint under 14.633,38 USC.Termination of accredited veterans representatives.
Mariano shows that when VA has evidence to award -that is unrebutted- they have to award.
I have raised Mariano recently to VA if they attempt to get any VA medical opinion against my evidence.
The one they did get in 2005 has been deemed as "medically inaccurate" anyhow by my IMO doctor in an additional IMO.
Point- my IMOs have never been addressed at all by VA so they are "unrebutted" and fully satisfy Relative Equipoise-there are 3 IMOs involved.They are in fact a Preponderance of evidence.
But a vet or widow only needs to satisfy 38 USC 5107.
A veteran should raise Mariano in any case where the VA fails to address competent medical evidence from a real doctor that supports their claim.
Mariano also can be used in another way by a claimant.
In 1996 a VA doctor opined against 2 of my claims.
I rebutted the first denial and then the VA got him to opine again-
I knocked him down again.
He did make one statement that remains unrebutted.It also remained unrebutted when, in 1996 I filed a CUE on one of the claims.
I won my claims under another avenue of approach so I did not challenge the BVA denial of that CUE.
Never gave it another thought -until----
when I got my AO claim back from the BVA-illegally transferred there-last year, the VA had-at the same time filed a Motion for the BVA to Reconsider the old CUE claim I had-
they seem fixated on this claim.And sent me recent info on it as they are working on a claim I filed in 2004 that raises the same issue.First they said this claim was denied by the BVA in 1998 and I could not re-open this issue- I pressed the point- they re-opened it -and I guess they actually read it-and suddenly are working on it now.
The 1996 VA doc made a statement that I did not rebutt and in essense service connected the veteran's PTSD as contributing to his heart disease and death.
I did not use this because my claim at that time was that the VA caused his death by malpractice.That claim is what I had the most evidence on.
When I succeeded in the malpractice claim- I did not pursue the VA doctor's statement because (even in our most recent conversation)his opinions were so severely knocked down by me that any more opinions from him regarding my issues would not be acceptable to the VA.
(I had asked him to opine on Rod's diabetes and he got out his older report and said there was no doubt at all that Rod could have had diabetes and that this caused his heart disease but for above reason could not opine on this to the VA).
I think the VA is using this docs 1996 unrebutted statement as to the veteran's heart disease contributed to by his PTSD, as the basis to try to make direct SC award.
They would then be able to again overlook my IMOs regarding diabetes and Rod's death.(as well as the proof of substandard care and malpractice already in the c file).
My point is an unrebutted statement from a VA doctor in an old SOC could help a vet actually succeed in a more recent claim.
Unrebutted statements from an IMO doctor
(If VA ignores IMOs -they remain unrebutted by VA)
to successfully get an award under 38 USC 5107 and Mariano.
I hope this legal beagle stuff might help someone out there-
I regret that claimants often have to become medically and legally proficient sometimes to get the compensation they deserve from the VA.
Throwing established VA case law and regs back at them can often help considerably in getting them to properly assess your evidence.
I copy and paste the regs (make sure you use the most recent versions)into responses directly from M21-1 or 38 CFR etc-for any response I make to the VA
regarding my claims.
I am interested in my AO claim-VA is interested in my other claims that do not involve Nehmer nor another admission of piss poor medical care in failing to diagnose and treat Rods diabetes-evident in 6 years of medical records-per Dr. Bash.
But in any event I had to respond to the claim VA is suddenly fixated on- claim I filed-regarding
PTSD contributing to the veteran's fatal heart disease.I had already sent evidence to support his claim and the old BVA CUE.
I didnt feel like pulling all that out so I simply stated:
The veteran's service connected PTSD made him eligible for VA health care and under the auspices of that health care VA made "multiple" medical errors in "substandard" medical care that "hastened the vetean's death"- quoted directly from the Sec 1151 award I got in 1997 and OGC VACO medical report 1997.
Question
Berta
This decision bears repeating here as many veterans find the VA has ignored their probative medical evidence,specifically to include IMOs.
Basic VA case law-reiterated in Mariano states:
“The Secretary shall consider all information and lay and
medical evidence of record in a case before the Secretary
with respect to benefits under laws administered by the
Secretary. When there is an approximate balance of positive
and negative evidence regarding any issue material to the
determination of a matter, the Secretary shall give the
benefit of the doubt to the claimant.” 38 U.S.C.A. § 5107.
also : 38 U.S.C. § 5107(
(when there is approximate balance of positive and negative evidence regarding any issue material to determination of matter, Secretary shall give "benefit of the doubt" to claimant). “
and:
“Finally, with respect to this December 1998 VA examination, the Court notes that it is not at all clear from the record on appeal (ROA) why VA concluded, in light of the unrebutted evidence then of record, that it was necessary to obtain that medical opinion. Because it would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant's case, VA must provide an adequate statement of reasons or bases for its decision to pursue further development where such development reasonably could be construed as obtaining additional evidence for that purpose. See 38 U.S.C. § 7104(d)(1).”
Also many BVA decisions reference Mariano such as
“Additional development by the Veterans Benefits
Administration Appeals Management Center (VBA AMC) would only
serve to further delay resolution of the claim. Bernard,
supra. See also Mariano v. Principi, 17 Vet. App. 305, 312
(2003) cautioning against seeking additional medical opinion
where favorable evidence in the record is unrebutted”
from: http://www.va.gov/vetapp04/files/0404870.txt
If the VA fails to consider and address any of your medical evidence-
in the form of an IMO that falls into the VA's definition of "competent medical evidence"---fails to refute or rebutt this evidence in any way-
especially if they fail to even consider it-
you can raise Mariano if they try to go fishing for a VA doc to deny the claim.
I was victimized by the RO this way in 2005.
In 2005 my rep at the RO said he was sure he would come out with a favorable award minutes before a DRO conference.
He had unrebutted medical evidence from me within 2 IMOs and considerable other medical evidence.
I pointed out (which he well remembers)-that I too was competent enough to prove VA committed malpractice in 1997 so my medical opinions as well as the IMOs should be considered.
and he was correctly relying on Relative Equipoise-even though my evidence was in VA's hand for a year already and unrebutted.
I also made sure he used an additional tactical maneuver-
and I made him say this all back to me-
the way I wanted three significant points presented to the DRO.
I had 3 specific ways they could award.
The subsequent SOC reveals he did none of this-and never even mentioned the IMos to the DRO or anything else in support of my claim-
he will have to answer to that to the GC if I file a complaint under 14.633,38 USC.Termination of accredited veterans representatives.
Mariano shows that when VA has evidence to award -that is unrebutted- they have to award.
I have raised Mariano recently to VA if they attempt to get any VA medical opinion against my evidence.
The one they did get in 2005 has been deemed as "medically inaccurate" anyhow by my IMO doctor in an additional IMO.
Point- my IMOs have never been addressed at all by VA so they are "unrebutted" and fully satisfy Relative Equipoise-there are 3 IMOs involved.They are in fact a Preponderance of evidence.
But a vet or widow only needs to satisfy 38 USC 5107.
A veteran should raise Mariano in any case where the VA fails to address competent medical evidence from a real doctor that supports their claim.
Mariano also can be used in another way by a claimant.
In 1996 a VA doctor opined against 2 of my claims.
I rebutted the first denial and then the VA got him to opine again-
I knocked him down again.
He did make one statement that remains unrebutted.It also remained unrebutted when, in 1996 I filed a CUE on one of the claims.
I won my claims under another avenue of approach so I did not challenge the BVA denial of that CUE.
Never gave it another thought -until----
when I got my AO claim back from the BVA-illegally transferred there-last year, the VA had-at the same time filed a Motion for the BVA to Reconsider the old CUE claim I had-
they seem fixated on this claim.And sent me recent info on it as they are working on a claim I filed in 2004 that raises the same issue.First they said this claim was denied by the BVA in 1998 and I could not re-open this issue- I pressed the point- they re-opened it -and I guess they actually read it-and suddenly are working on it now.
The 1996 VA doc made a statement that I did not rebutt and in essense service connected the veteran's PTSD as contributing to his heart disease and death.
I did not use this because my claim at that time was that the VA caused his death by malpractice.That claim is what I had the most evidence on.
When I succeeded in the malpractice claim- I did not pursue the VA doctor's statement because (even in our most recent conversation)his opinions were so severely knocked down by me that any more opinions from him regarding my issues would not be acceptable to the VA.
(I had asked him to opine on Rod's diabetes and he got out his older report and said there was no doubt at all that Rod could have had diabetes and that this caused his heart disease but for above reason could not opine on this to the VA).
I think the VA is using this docs 1996 unrebutted statement as to the veteran's heart disease contributed to by his PTSD, as the basis to try to make direct SC award.
They would then be able to again overlook my IMOs regarding diabetes and Rod's death.(as well as the proof of substandard care and malpractice already in the c file).
My point is an unrebutted statement from a VA doctor in an old SOC could help a vet actually succeed in a more recent claim.
Unrebutted statements from an IMO doctor
(If VA ignores IMOs -they remain unrebutted by VA)
to successfully get an award under 38 USC 5107 and Mariano.
I hope this legal beagle stuff might help someone out there-
I regret that claimants often have to become medically and legally proficient sometimes to get the compensation they deserve from the VA.
Throwing established VA case law and regs back at them can often help considerably in getting them to properly assess your evidence.
I copy and paste the regs (make sure you use the most recent versions)into responses directly from M21-1 or 38 CFR etc-for any response I make to the VA
regarding my claims.
I am interested in my AO claim-VA is interested in my other claims that do not involve Nehmer nor another admission of piss poor medical care in failing to diagnose and treat Rods diabetes-evident in 6 years of medical records-per Dr. Bash.
But in any event I had to respond to the claim VA is suddenly fixated on- claim I filed-regarding
PTSD contributing to the veteran's fatal heart disease.I had already sent evidence to support his claim and the old BVA CUE.
I didnt feel like pulling all that out so I simply stated:
The veteran's service connected PTSD made him eligible for VA health care and under the auspices of that health care VA made "multiple" medical errors in "substandard" medical care that "hastened the vetean's death"- quoted directly from the Sec 1151 award I got in 1997 and OGC VACO medical report 1997.
It is as simple as that.
Let them try to rebutt that statement.
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