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Need Cova Or Cavc Case


Guest Namvet6567

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Guest Namvet6567

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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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.

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  • HadIt.com Elder

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.

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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

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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. ;)

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  • HadIt.com Elder

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.

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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 by Jim S. (see edit history)
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  • HadIt.com Elder

Jim,

That does clarify it. I knew their was something that specifically addressed this situation in the M-21 or CFR. You are doing better at finding this stuff than me. I can olny go on vague recollections of the many BVA cases I read 7 years ago.

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. ;)

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