Guest Namvet6567 Posted February 4, 2006 Share Posted February 4, 2006 Looking for anyone who happens to know the name of the case that essentially states that the "rater/adjudicator" may not make a medical decision/interpretation(sp)? Thanks!! Link to comment Share on other sites More sharing options...
Guest Berta Posted February 4, 2006 Share Posted February 4, 2006 Flip- in Colucci- (CAVC 98-1431) the court states: "VA adjudicators may consider only independent medical evidence to support their conclusions. Colvin v. Derwinski, 1 Vet. App. 171 (1991). " I can't fnd Colvin yet and that had to be COVA- if 1991- I believe the court made a stronger statement on this point when it was COVA but I can't find that- In the reference above they mean 'independent ' as independent of the examiner's conclusion-whether from VA or a private doctor-I wish they spelled it out better though. Link to comment Share on other sites More sharing options...
HadIt.com Elder Hoppy Posted February 4, 2006 HadIt.com Elder Share Posted February 4, 2006 The terminology I remember citing was that and adjudicators decision cannot rebut an existing medical opinion. I could have found this while reding BVA cases. It could just be a BVA policy. It could also be a CFR or in the M-21. Hoppy 100% for Angioedema with secondary conditions. Link to comment Share on other sites More sharing options...
Railroader Posted February 5, 2006 Share Posted February 5, 2006 The terminology I remember citing was that and adjudicators decision cannot rebut an existing medical opinion. I could have found this while reding BVA cases. It could just be a BVA policy. It could also be a CFR or in the M-21. This may be what you are looking for....I hope it is anyway. http://www.va.gov/vetapp01/files01/0106031.txt Link to comment Share on other sites More sharing options...
Guest Jim S. Posted February 5, 2006 Share Posted February 5, 2006 In trying to find Colvin v. Derwinski I came across this and think it explains the reason why it is difficult to find anything. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), overruled Colvin v. Derwinski, 1 Vet. App. 171 (1991) Not sure how correct this is, but I am finding quite a bit of one relating to the other. Jim S. ;) Link to comment Share on other sites More sharing options...
HadIt.com Elder Hoppy Posted February 5, 2006 HadIt.com Elder Share Posted February 5, 2006 Hodge V. West seems to address new and material evidence. I did not see anything addressing the ability of the board to rebut an existing medical opinion without a medical opinion that supports the boards decision. I argued my case in 2003, the denial made by the RO was the opinion of the adjudicator and unsupported by any medical reports. They based their denial on the misconception that the favorable report was written by an immunologist who had not read another report showing that the disease was the result of post service employment. No such report indicating the disease was the result of post service employment existed. After pointing out to the RO that their decision was supported by an imiginary non existent report and thus resulted in the RO rebuting a doctor with their own non medical and non qualified opinion, the RO reversed their own decision and awarded my claim citing the one and only report in the file. The one and only report in my file was written by the Head of Immunology and Allergy at my local VA, He was a board certified immunologist who had worked for the VA for 30 years. His report was a slam dunk citing that the disease began while serving in the armed forces and had no know cure. He based his decision on a review of my SMR. Additionally, I argued that the RO was not qualified to determine if my doctor failed to read a report that it might result in the doctor changing his opinion. I suggested to the RO that they find their imiginary report and send it to the doctor who wrote the favorable opinion, so he could decide if it would change his opinion. I told the VA that my personal injury lawyer told me that this little trick would have gotten them sanctioned in civil court. Would you believe they invented a report and used it to disregard a report written by the head of Immunology and Allergy. I told them I could not wait to get them in federal court to expose the lunacy that they were putting me through. Hoppy 100% for Angioedema with secondary conditions. Link to comment Share on other sites More sharing options...
Guest Jim S. Posted February 5, 2006 Share Posted February 5, 2006 (edited) It appears from what HoppY has said, and what further I could find, that Colvin was only partially changed by Hodge I did find this from a BVA claim The United States Court of Appeals for Veterans Claims (Court) has held that the Board may consider only independent medical evidence to support Board findings. If the medical evidence of record is insufficient, the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). AND; M21-1MR, Part III, Subpart iv, Chapter 5 6. Rejecting Medical Evidence Unless the historical facts upon which a 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 conclusion to reject expert evidence provided by the claimant. Reference: For more information on the basis for rejecting medical evidence. See Shipwash v. Brown, 8 App. 218, (1995), and Colvin v. Derwinski, Vet. App. 175 (1001). Hope this clarifies things. Jim S. ;) Edited February 5, 2006 by Jim S. Link to comment Share on other sites More sharing options...
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Looking for anyone who happens to know the name of the case that essentially states that the "rater/adjudicator" may not make a medical decision/interpretation(sp)? Thanks!!
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