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Mariano


Berta

Question

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(:unsure: (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.

Edited by Berta
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  • HadIt.com Elder

Good Post

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  • HadIt.com Elder

Isn't this exactly what the VA did to my claim?

If You have a " More Likely than Not" decision from a Very Competent Medical Professional at the VAMC with the VA's Specified Doctor, Time and Place. His C&P Examination is not dis-credited, questioned, dis-qualified or faltered.

You go for another C&P within 5 months, for what reason other than to seek a Denial.

Josephine

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  • HadIt.com Elder

Betty, you're right. Very good case in point.

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  • HadIt.com Elder

Larry,

This is exactly the point that I have made sure that the BVA is aware of.

Josephine

(Betty)

Edited by Josephine
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Hi All

So, if my favorable C&P exam clarification comes back less than favorable. Then I need to send the Mariano case number to the AMC and explain how it relates to my claim.

Wow

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Excellent post. It gives me another front to attack from since NONE of my evidence was discussed in the reason and bases of my claim by the rater or DRO. Funny thing is there is NO evidence against me or that VA has provided which rebuts my positive evidence and they still denied the claim. I have no knowledge why the claim was denied other that a statement by the rater the it is denied. I can not get to the complete decision by the court which established the precendent. Does anyone have the link - thanks

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Mariano V Principi -

last paragraph under "D":

http://64.233.169.104/custom?q=cache:1Yl37...326217334650925

"A review of these examination reports indicates that two examiners (August 1996 and January 1998) clearly attributed the appellant's left-shoulder LOM to his service-connected GSW residuals; one examiner (November 1996) either attributed the appellant's LOM to arthritis or is ambiguous on etiology; and one examiner (December 1998) in a flawed examination attributed the appellant's LOM to arthritis. Therefore, the evidence reflects two examination reports that are unambiguously favorable to the appellant on this question; one examination report that is at best ambiguous on this question; and one examination report that, although unfavorable to the appellant on this question, is of questionable probative value because the methodology was flawed. Thus, the Court holds that the Secretary's application of the section 5107(B) equipoise standard in finding that any LOM at or below shoulder level experienced by the appellant is due primarily to arthritis, rather than to his service-connected GSW residuals, was clearly erroneous and will reverse it. See 38 U.S.C. § 7261(a)(4), (B)(1); Roberson, supra"

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Maybe I should explain this better-

If you have medical evidence that fully supports your claim from either the VA or from a real doctor-

that the VA has failed to knock down with full medical rationale- you have unrebutted medical evidence.

If you have a VA medical opinion to go against your claim yet fails to rebutt any medical evidence from a private IMO doctor-that supports your claim-you have unrebutted medical evidence.

If you have -like I do- IMos that VA has never considered at all- and thus never rebutted for 3 years- you have unrebutted medical evidence.

If the VA challenges any point in an IMO with medical rationale- the IMO has been rebutted.

If the IMO doc said "more than likely" due to service but the nexus cannot be established- the IMO opinion has been rebutted by the lack of nexus.

In the late 1990s I received numerous medical rationales used by VA doctors to deny my 2 claims at that time-

I rebutted their medical rationale-

with medical evidence-that was prime facie and documented in the med recs.

At some point my medical evidence became unrebutted- they could not come up with any other reason to deny and had to award.

The point of Mariano is that if the claimant has medical evidence that is not in any way logically and medically rebutted by VA-with a full medical rationale -

they succeed in the claim.

I have 3 IMos for -the VA has one-against-

also my competent lay medical opinions remain unrebutted.

I reminded VA recently that my Sec 1151 award was based on the clinical record as I had no IMO doctor.

Since the USA paid me a large settlement too- it shows my medical opinions were competent and contained medical rationale in 1997.

the one VA negative opinion they have was based on 3 or 4 medical records.

The VA opining doctor didnt even know I won FTCA for wrongful death-and that the files contained considerably medical evidence to award the claim.She never considered the complete record as my IMO doctor did.

I have a preponderance of unrebutted medical evidence.

If a vet does not challenge something in a SOC-they are accepting it as fact- so in my opinion if the VA does not challenge a claimants medical evidence and it remains-"unrebutted" the VA has failed to challenge it and it remains as fact.

The VA has had 3 years to challenge and rebutt my initial IMO of Nov 2004.The VA opinion came in 2005.

Dr. Bash knocked down the VA opinion in 2006 saying it was "medically inaccurate" and gave full medical rationale as to why it was wrong.

The VA cannot go doctor shopping for another VA opinion in my case as it would violate Mariano.

They have enough probative evidence to award.

Since numerous VA doctors -I proved- committed malpractce on my husband-

I had to get a real doctor to opine on the claim as their opinions are already tainted by the FTCA situation.

They might try to- and if my POA refuses to invoke Mariano (I did already) I will file a complaint on them with the GC.

The BVA has used the essense of Mariano for years before it became a CAVC decision-

it is based on common sense.

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Berta - thanks for the link. I like you have from my treating docs medical evidence that has not been addressed by the VA nor have they provided any evidence to rebut the positive evidence. However, they simply denied the claim at the Ro and Dro level.

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