List Of Evidence

[Jayg]

Ok, one more thing...

It has been suggested I check the "list of evidence." How do I do that? Do I request a copy from the VARO? Show up and ask to see it, make an appointment to see it???

Thanks

[babyray]

Ok, one more thing...

It has been suggested I check the "list of evidence." How do I do that? Do I request a copy from the VARO? Show up and ask to see it, make an appointment to see it???

Thanks

As carlie said check the evidence section of your rating decision. Let me tell you what happen to me. I got a rating decision in feb/09 and the rater lowballed the DDD of the spine, so I checked the evidence section of the rating decision and sure enough they did not have a orthro C&P exam I had taken. I filed a recon claim telling them that the rater did not review this C&P exam. They acknowledged the mistake and asked my VSO to find out from me what did I want to satisfly me. The rater was told to review the C&P exam( which was in my favor) that was over looked (I do not know if it was overlooked on purpose or by mistake). They reviewed it and reslove the recon by increasing my rating from 0% to 20%. Hope this help.

babyray

[deltaj]

Delta..

Yes, I forgot..the "Women are like Spagetti" part. To women, according to this book, everthing is all mixed up like a bowl of spagetti and everthing is touching each other..you know..love, sex, sports, EED, SMC, kids, money, etc..all related...I hope you get a laff out of this one, and hope it offends no one. One woman, who was pulled over by a police officer for DUI told the officer ON VIDEOTAPE, "Can this be settled with sex?"

You state that for women everything is all mixed up like a bowl and everything is touching each other. There is a phrase that appears occassionally in V.A. decisions and that is the "inextricably intertwined." That phrase is used by BVA and the Courts pertaining to whether issues are inextricably intertwined. I suggest you search under inexplicably intertwined AND SMC AND veteran and see if you find any interesting cases. Also don't forget that the Secretary is supposed to reopen denied claims under 38 USC 5108 based on new and material evidence.

[deltaj]

Delta..

Yes, I forgot..the "Women are like Spagetti" part. To women, according to this book, everthing is all mixed up like a bowl of spagetti and everthing is touching each other..you know..love, sex, sports, EED, SMC, kids, money, etc..all related...I hope you get a laff out of this one, and hope it offends no one. One woman, who was pulled over by a police officer for DUI told the officer ON VIDEOTAPE, "Can this be settled with sex?"

You state that for women everything is all mixed up like a bowl and everything is touching each other. There is a phrase that appears occassionally in V.A. decisions and that is the "inextricably intertwined." That phrase is used by BVA and the Courts pertaining to whether issues are inextricably intertwined. I suggest you search under inexplicably intertwined AND SMC AND veteran and see if you find any interesting cases. Also don't forget that the Secretary is supposed to reopen denied claims under 38 USC 5108 based on new and material evidence.

[Hoppy]

Broncovet,

I am assisting another veteran who has some issues in his claim that are common to your claim. The position identified in this post is based on some arguments that I've developed for his claim that can also be used in your claim. The veteran I am assisting submitted a report from a qualified clinician stating that the service medical records and post service medical records were reviewed and that the veteran's current condition was clearly related to military service. A rater denied the claim stating that the service medical records were written to long-ago for the clinician to be able to develop an opinion that had a legal basis. The rater cited no laws, CFR's or decisions. I previously ran into a similar problem and argued that without any legal precedent being cited the raters opinion is either a false objective standard of law or a medical opinion that the rater was not qualified to advance. I won this argument on appeal. To cement my argument and to force another review at the RO level on the case of the current veteran I am assisting I obtained an opinion from a qualified clinician that even though the SMR was over 25 years old that the detailed notes taken by military clinicians and combined with their clinical observations was sufficient to apply current medical principals and diagnoses. I would think that in your case seeking an opinion that the original statement by the clinician that you're hearing problems had made many jobs unavailable including the jobs you have performed in your lifetime could help your claim. As stated below I develop a position that the new evidence only educates the rater as to how the original determination was made and why the original determination should not have been ignored or disregarded. Thus the new evidence is not material and the claim date should be associated with the original filing that the new report clarifies.

I think it can be argued that your claim is uniquely different than any case I have found including Roberson. Most of the cases involve the issue of TDIU when the filings, pleadings and evidence are silent on the issue of TDIU. Roberson is not silent. However, the issue of unemployability is stated by Roberson in the medical record. Roberson is a lay individual. In your case a doctor states that most jobs are not available in the medical record. It could be argued that it cannot be assumed that a doctor has no expertise on this issue. It is entirely possible that the doctor had some experience or knowledge of case studies or research data that was applicable to his opinion. The doctor's expertise must be rebutted by an individual with similar expertise or more expertise. I would argue that a rater does not have sufficient expertise to routinely dismiss, ignore, disregard, argue or disallow weight being given to the doctor's opinion. Additionally, it would be incumbent upon the rater to address and identify how it was determined that the doctor could not support his position. In your case the doctor's opinion is not rebutted and there is no qualified evidence to offset the doctor's opinion.

If it were my claim I would seek a determination from the court that by ignoring the doctor's opinion your case involves discretion of a rater that became equated to an expert opinion when in fact the rater was no expert. I would seek a determination that the unrebutted opinion of a doctor is controlling. I would seek an instruction from the court that an unrebutted opinion from an expert is controlling and must be revisited when requested by the veteran and without a requirement for new and material evidence. Upon revisiting the unrebutted issue compensation and pension exams should be scheduled when adequate evidence to resolve the unrebutted issue is not submitted by the veteran. Should it be determined that the original opinion that was unrebutted remains controlling that this results in a cue. The cue is based on the fact that there is a misapplication of the law that allowed a rater's discretion to rebut an expert opinion. After revisiting the issue of unemployability it is determined that the original opinion of the doctor remains controlling it would result in a determination that the rater’s error clearly caused a different result which meets one of the requirements of a cue.

Revisiting a claim should be required when the claim was denied by a raters stated determination in the reasons and basis for the decision that challenges the examiner's credentials or the examiner's logic or lack of logic. Additionally, revisiting the claim should be required when the reasons and basis ignores an opinion by a qualified examiner which was contained in the file at the time of the raters original decision. Failure to address an issue shall be construed as a determination by the rater that the evidence was inadequate for reasons including but not limited, to the raters opinion that a favorable medical opinion was not supported by sufficient logic or based on stated studies of clinical observations or research data to support the original diagnosis, nexus or any other favorable issue or that the rater was of the opinion the clinicians exceeded their training or expertise. When the evidence added to the file does no more than educate the rater as to training and qualifications of the clinician or how the original favorable determination was reached then the original favorable report remains controlling even when the evidence added to the file is generated by a different clinician or other reliable sources. As such any award would be based on the claim date associated with the filing of the original controlling medical report.

There are laws that protect the veteran from adjudicators who advance a medical opinion that they invent to rebut a medical opinion supporting the veteran's claim. The problem occurs inasmuch as I cannot find protections preventing adjudicators from ignoring favorable evidence. In the past I have just argued that the failure to address a significant report in the reasons and basis of a decision does not comply with VA standards. I learned this argument reading BVA cases. I am familiar with several cases in the last couple years were significant evidence was ignored. It seems like this is one of their favorite tactics.

We often hear the rater cannot rebut a Dr.'s report. The court needs to clarify that routinely dismissing a doctor's opinion because the rater does not think that a Dr. properly supported his opinion is not necessarily a failure to develop the claim. Essentially it is a failure of the rater to properly defend the claim. And if it is not shown upon revisiting the claim that the rater can develop evidence to rebut the doctor's opinion the claim is properly developed to the point where the claim could have been awarded. The position I'm advancing is actually favorable to the VA by allowing the claim to be revisited rather than requiring that the dismissed doctors opinion be viewed as controlling and the case awarded without revisiting the issues and evidence in the case. This all seems so fair to me that I would think that such procedures are already allowed. Maybe I just don't see the cases where this type of process is performed. I do know that there are laws that prohibit raters from routinely dismissing certain types of claims as being congenital or developmental. There should be laws prohibiting a rater from routinely dismissing an issue such as unemployability when addressed by a clinician in reports that are of record at the time of the original decision. Ignoring a clinician's statements addressing unemployability can be equated to routinely dismissing the issue. As such when a rater denies a claim stating a Dr. did not provide adequate reasoning or ignores the entire issue the door will always be open for a cue if the rater cannot show that the doctors original opinion was made in error.

The issue I developed in the previous post that there was a failure to properly apply the rating schedule is based on the interpretation that the new cases I posted stating that once a claim is adjudicated and denied that any associated TDIU claim is assumed to have been adjudicated at the same time is being conceded. They could have adjudicated a TDIU claim and still fail to give proper consideration to the ratings schedule. In your case I'm advancing a position that either they failed to give proper consideration to the rating schedule or they committed a CUE when the rater rebutted your doctors opinion by ignoring the doctors statements. The new interpretation of Roberson should not allow a rater to make a cue. Once again I'm basing the failure to properly apply the rating schedule on the validity of the citation I posted were the guy was awarded a cue because they did not properly apply the rating schedule and that failure to properly apply the ratings schedule is still considered a cue.

I am also of the opinion that until there is repetition creating a chain of decisions replacing or reinterpreting Roberson that continued interpretation of Roberson by the courts shows that the court is being diligent. I've seen labor law attorneys appeal the same types of issues to appeals boards until such time the appeals board tells them that there is no way they are going to reinterpret a previous chain decisions. I'll keep tweaking and exploring different angles on your case. Like I said your case is unlike the cases I have read. I feel there is merit to your claim that a significant hearing problem would result in the need for at least temporary total disability and if the issues causing the temporary total disability cannot or were not resolved then TDIU was justified from the get-go. If it was justified from the get-go I do not see how a veteran can make any error that should be allowed to disqualify the veteran for a benefit that was denied as the result of a significant error made during the prior adjudication process by a rater.