Court Case On Bva Considering All Evidence Of Record

[deltaj]

I just read the following case: United States Court of Appeals for the Federal Circuit 99-7094, -7102 Christine Hix Claimant-Appellee and Mary L. Pardue Claimant-Appellee v. Hershel W. Gober Acting Secretary of Veterans Affairs Respondent-Appellant decided September 20, 2000. The final paragraph is a real zinger in that it states BVA must consider all evidence of record. I think the case is about entitlement to DIC by a widow but the issue of consideration by BVA of all evidence of record is a broad issue that pertains to veterans also in my opinion. Could someone post a link to this interesting federal circuit case? I found it by searching google under 38 USC 1318.

Edited June 23, 2009 by deltaj

[Pete53]

http://www.ll.georgetown.edu/federal/judic...ns/99-7094.html

[john999]

Me and my lawyer believe that if the VA does not consider all the evidence of record in a rating then it is CUE. If VA "must" consider all evidence of record and they don't do it then that sounds like a CUE to me. Are we wrong because we are betting the farm we are not wrong?

[Berta]

The VA at any level- VARO or BVA must consider all evidence of record-

I posted the Evidentiary regs here many times on that-

However they can also reject evidence that is not new and material (for re-opened claims) nor probative to the original claim.

I cannot open my Word docs but believe these regs are in 38 USC 4.3 and 4.6 or it is 38 CFR 4.3, 4.6.

And in M21-1.

[john999]

In my CUE case the VA had the evidence, but simply refused to consider it. It was a medical report from my doctor. They only used the evidence from their doctor. They did not list or refer to my doctor's evidence at all in the decision. This is an old one, but a bold one. My doctor said I was IU and incapacitated. The VA gave me 10% based on in-patient records from a stay at the Tampa VA in 1972. It burns me. The gulf between IU and 10% is wide. It was a crazy final decision. I am going to the BVA so I may not live to win or lose it.

[vaf]

These might also help:

VA is required to consider all the evidence of record, including medical records and all pertinent lay statements. See Harder v. Brown, 5 Vet App. 183 (1993).

The Board of Veterans Appeals cannot rely only upon evidence it considers to be favorable to its position. It must base its decision upon all the evidence of record. See Smith v. Derwinski, 2 Vet.App. 137,141 (1992) citing Willis v. Derwinski, 1 Vet.App. 63, 66 (1990).

The Board of Veteran's Appeals' failure to address evidence in its decision is indicative of whether it considered such evidence. See Douglas v. Derwinski, 2 Vet.App. 435, 440 (1992).

[broncovet]

VAF

Those were very handy court cases, and a very excellent post. Thanks

Bronco