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My Light Bulb Got Turned On

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carlie

Question

In reading through the EVIDENCE section of M-21 I noticed something that is really working on my brain.

Evaluating evidence and weighing evidence is two totally separate things.

carlie

Carlie passed away in November 2015 she is missed.

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Guest VetWife Advocate
In reading through the EVIDENCE section of M-21 I noticed something that is really working on my brain.

Evaluating evidence and weighing evidence is two totally separate things.

carlie

Carlie,

Well, show us the link and then give us your insight. Joe's Cfile shows where a rater made a

medical decision...Said...the disability was a natural progression of the disease....no rating for pain, rom, weakness, no C&P!!!

There has to be some accountability put in this system, or it will always remain the same!!

Brenda

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5. Medical Evidence

Introduction This topic contains information about evaluating medical evidence, including· non-adversarial adjudication· weighing physicians’ opinions· evaluating medical evidence· rejecting medical evidence· supporting medical conclusions· considering the POW protocol examination report· evaluating service medical records (SMRs)· statements from physicians as acceptable evidence, and· considering information in the claims folder.

Change Date December 13, 2005

a. Non-Adversarial Adjudication VA’s system of claims adjudication is non-adversarial.Do not minimize the weight of a treating physician’s opinion based upon the idea that he/she has become an advocate for the patient, since doing so may appear adversarial and biased.

b. Weighing Physicians’ Opinions Greater weight may placed on one physician’s opinion than another’s, depending on several factors, such as · the specialty of the physician· the reasoning employed by the physician, and· the extent to which the physician reviewed prior clinical records and other evidence.An opinion may be discounted if it materially relies on a layperson’s unsupported history as the premise for the opinion.Note: Treating physician records are not necessarily dispositive of an issue and must be analyzed and discussed like all other evidence.Reference: For more information on discounting opinions based on unsupported history, see Wood v. Derwinski, 1 Vet. App. 190 (1991).

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5. Medical Evidence, Continued

c. Evaluating Medical Evidence Consider the key elements listed below when evaluating medical evidence.· Basis for the physician’s opinion, such as- theory- observation- practice- clinical testing- subjective report, and- conjecture.· Physician’s knowledge of the veteran’s accurate medical and relevant personal history.· Length of time the physician has treated the veteran.· Reason for the physician’s contact with the veteran, such as for- treatment, or- substantiation of a medical disability claim.· Physician’s expertise and experience.· Degree of specificity of the physician’s opinion.· Degree of certainty of the physician’s opinion.Reference: For more information on determining a physician’s expertise and experience, see Black v. Brown, 10 Vet. App. 279, (1997).

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5. Medical Evidence, Continued

d. 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 conclusions to reject expert medical evidence provided by the claimant.Reference: For more information on the basis for rejecting medical evidence, see· Shipwash v. Brown, 8 Vet. App. 218, (1995), and· Colvin v. Derwinski, Vet. App. 175 (1991).

e. Supporting Medical Conclusions Support medical conclusions with evidence in the claims folder.Cite medical information and reasoning to· link or separate two disabilities, or· establish or refute prior inception or aggravation. Cite recognized medical treatises or an independent medical opinion to support a conclusion. Note: If evidence such as medical treatises or independent medical opinions were relied upon when the rating decision was made, explain this in the rating decision.

f. Considering the POW Protocol Examination Report Carefully consider the prisoner of war (POW) protocol examination reports, because they may provide sufficient background information to relate the veteran’s current symptomatology to the POW experience.

g. Evaluating SMRs Service medical records (SMRs) are generally highly probative, but not necessarily determinative, in the resolution of service connection.

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5. Medical Evidence, Continued

h. Statements From Physicians as Acceptable Evidence A statement from any physician can be accepted for rating purposes without further examination if it· is otherwise adequate for rating purposes, and· includes clinical manifestations and substantiation of diagnosis by findings of diagnostic techniques generally accepted by medical authorities.Examples: Diagnostic techniques generally accepted by medical authorities are · pathological studies· x-rays, and· appropriate laboratory tests.

i. Considering Information in the Claims Folder The information in the claims folder must support the medical conclusions.Consider the following information in the claims folder:· applicable dates of events such as- treatment reports, and- hospitalizations· dates covered by the service medical record, identifying at least the month and year· names of- VA and private medical facilities- private physicians, and- other information sources, and· items of evidence that were requested but not received.

6. Insufficient Examinations

Introduction This topic contains information about insufficient examinations, including· improper denials, and· explaining necessary but unscheduled examinations.

Change Date December 13, 2005

a. Improper Denials Do not deny a claim or reduce an evaluation based upon an insufficient examination.

b. Explaining Necessary But Unscheduled Examinations If the rating activity decides to rate a case where a specialist exam has been recommended by the medical examiner but not scheduled by the Veterans Health Administration (VHA), explain the reason in the rating decision.

7. Reviewing Hospital Reports for Adequacy

Introduction This topic contains information about reviewing hospital reports, including· handling inadequate VA hospital reports, and· handling inadequate non-VA hospital reports.

Change Date December 13, 2005

a. Handling Inadequate VA Hospital Reports Request the original clinical records, including the nurses’ and doctors’ orders, if a VA report of hospitalization is inadequate for rating purposes in cases involving either· injury, aggravation of injury, or death as the result of - hospitalization- medical treatment- surgical treatment, or- examination, or· the death of a veteran from NSC causes if - the veteran had an SC neuropsychiatric disability that reasonably may have impeded, obstructed, or otherwise interfered with the treatment of the condition that caused death , and- the hospital report does not clarify this issue.

Carlie passed away in November 2015 she is missed.

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Guest Morgan

This is where we lose our claims. Raters are making medical conclusions every day and denying veterans benefits guaranteed by law. They are experts, but only at producing support for such medical conclusions by ignoring, misinterpreting, twisting, or taking out of context "other medical evidence." Habitually, they reject competent medical evidence. Why not? They are covered. They get to detemine if a medical statement from a board-certified physician is "theory- observation- practice- clinical testing- subjective report, or- conjecture." Why are they allowed to decide whether a physician's statement or opinon is conjecture, or anything else? And they dare publish this in the same text with mention of nonadversarial adjudication?

The discretion built in here is a cover for making medical conclusions, and even diagnosing. Both illegal. On one hand, they are not allowed to make medical conclusions without pointing to other medical evidence, yet on the other hand, they get to WEIGH and EVALUATE competent medical evidence. What's the difference? Interpretive doubt raised by conflicting regulations is to be ruled in the veteran's favor. More veterans should pound this issue.

Carrie

Edited by Morgan
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Carrie,

This almost makes me laugh

Nonadversarial adjudication?

Just go have a Hearing of ANY type and see how nonadversarial it FEELS.

I compare it to this:

The best person on the planet earth is driving down the road, obeying

absolutely everything ---- and then --- a law enforcement official begins to

drive behind and follow this most upstanding person.

Person gets very, very nervous -- but why -- they aren't doing anything wrong.

WHY -- because that officer in this situation has somehow become an opponent.

I think it's just the human nature of inherent guilt.

carlie

Carlie passed away in November 2015 she is missed.

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Guest Morgan

Me, too, Carlie. It would be laughable if it weren't for the hardships it places on veterans. My heart breaks for veterans who are homeless, sick, or otherwise unable to deal with the process. Far too many of our magnificent veterans have had to give up; others could never get started.

The mental gymnastics we have to compete with is exhausting, but I will go to my grave trying to find ways to help veterans.

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PLEASE PROVIDE A LINK TO WHERE U R READING THIS AT :(

Betrayed

540% SC Schedular P&T

LOWER YOUR EXPECTATIONS AND THE VA WILL MEET THEM !!!

WEBMASTER BETRAYEDVETERAN.COM

-----------------------------------------------------------------------------------------------------------------------

You hit the street, you feel them staring you know they hate you you can feel their eyes a glarin'

Because you're different, because you're free, because you're everything deep down they wish they could be.

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