Medical Opinion Might Not Be Material Evidence

[carlie]

This kind of grabbed me and said -- hey I might be important to someone.

" a medical opinion is not material evidence if relies on wholly inaccurate historical facts. "

I have no idea if this is currently in effect - but hope it helps someone.

carlie

Rescinded per M21-1, Part III, Change 44, dated 8/31/95

Veterans Benefits Administration M21-1, Part III

Department of Veterans Affairs Change 27

Washington, DC 20420 January 31, 1994

Veterans Benefits Administration Manual M21-1, Part III, "Authorization and Clerical Procedures," is changed as follows:

Pages 1-i through 1-12: Remove these pages and substitute pages 1-i through 1-13 attached.

All paragraphs are renumbered to facilitate easy reference.

A new paragraph, 1.03, is added to reflect the recent Court of Veterans Appeals decision in Grottveit v. Brown, US. Vet. App. No. 92-20 (1993) concerning well-grounded claims.

Paragraph 1.08b(3) is added to reflect the recent Court of Veterans Appeals decision in Reonal v. Brown, US. Vet. App. No. 91-2014 (1993) which clarifies that a medical opinion is not material evidence if it relies on wholly inaccurate historical facts. By Direction of the Under Secretary for Benefits

J. Gary Hickman, Director

Compensation and Pension Service

Distribution: RPC: 2068 plus 6 copies for each Veterans Services Division

FD: EX: ASO and AR (included in RPC 2068)

[Guest Jim S.]

Carlie: Not sure how or why you thought this may be usefull to me, but if you mean my history of mental problems since service are not well documented, I would have to agree, it would take some digging by a florensic records analyst to put the records in proper perspective, but I believe their is enough already in the records or history to show a continuity of symptoms however slow in developing over time, to present a logical if not historical evidence to prove my claim.

Jim S. :P

[carlie]

Jim S.,

The reason I felt this may pertain to your claim is, if I remember correctly -- you have said that someone changed your diagnosis one thing to personality disorder. So the way I tie this rule I listed, together with your SC denial, is that if your diagnosis was changed on wholly inaccurate historical facts -- then that NEW diagnosis could not be considered as material evidence.

As I said before I don't know if this will be helpful toyour case any -- it just quickly ran through my mind

like I stated above.

carlie

[Guest Jim S.]

I research some more and what they are talking about in this instance, is that the medical evidence is basing a medical opinion on what the Veteran told the DR. i.e he said he had injured his leg in service, when their is no history of a leg injury, but that their was a history of a leg injury before service. plus the Dr was supposing his problems today were the result of a leg injury in service 40 years previous and not from any independent findings.

What I think you are or may have been thinking this claim was about, is that a Dr or examiner in my case cannot base his opinion on anything that I may have related to him, that the personal information of my psychological picture prior to service can not be used against me, that his findings must be based on and supported by independent mean and the evidence thus far in the records.

It's just a reversal of rolls, since I can not use a DR's opinion that is based on my say so, niether can the VA examiner use my own words against me either.

I'm getting a bit tired so it may sound a bit confusing, but I think their is something that shows this rule on how to support the evidence.

Anyway, it got my mind working on a different line of attack should one way prove fruitless.

Jim S. :P

[10thFO]

That's good to know, so I can make sure that the Private Dr. I have can write in his report that My cervical spine problems, once denied by the VA, are in fact caused by the same injury (fall) while in Service, since the lumbar spine is already service connected. I can throw this in for good measure so not to confuse the RO as to thinking they can deny me again. Go figure I goto the VA about my arms and hands going numb and they tell me I have Carpal Tunnel, and don't even bother mentioning the problems in My MRI"S

[Guest Jim S.]

That's good to know, so I can make sure that the Private Dr. I have can write in his report that My cervical spine problems, once denied by the VA, are in fact caused by the same injury (fall) while in Service, since the lumbar spine is already service connected. I can throw this in for good measure so not to confuse the RO as to thinking they can deny me again. Go figure I goto the VA about my arms and hands going numb and they tell me I have Carpal Tunnel, and don't even bother mentioning the problems in My MRI"S

10thFO: You can only use the Dr's statement, or have it be probative, if what he writes, is based on his own evaluation of the evidence and his own findings. His statement should not reflect in any way, that his opinion was the result of an injury you told him had accured in service.

He must show the connection between the two injuries, using evidence he has developted on his own, such as an Xray or MRI that may show that both injuries show the same consistant findings that they both occured at the same time, having the same age chacteristics.

Even if you tell him you think they occured at the same time, the Dr must support this independent from your say so.

At this stage my mind gets a bit tired and things seem to get a bit confusing for me, but I think I have shown what the other post was saying, I was just trying to inforce the notion the Dr most support his findings seperate from anything you have told him.

Jim S. :P

[10thFO]

No Jim, I heard you loud and clear. I was just for a moment jubilant. as I wasn't even there to discuss the injury. He asked how I hurt my back and I told him (lumbar spine that is, had surgery before leaving service) he's not saying that his opinion is that the injury happened while I was in service, only that the injury that my cervical spine shows is consistent in time frame with the lumbar spine.

I understand that what you said will be a hard sticking point for most. But all I know is I missed the date on my appeal for the Cervical spine ailments, and luckily had a VA dr. that wanted to see an MRI of my neck. What it showed is pretty sound. Even though the VA never went over any test results for me. UGHHHHHHHHH. I'm pretty sure they don't want to fix me, and they don't want to help me financially. They just want me to die and go away.