Quick Question

[ruby]

Does anyone know where it says they must list all the evidence in a rating decision?

Is there a rule or decsions that says the evidence not listed in the file is considered reviewed.

Is there a rule that says all probative and creible evidence must be listed in the evidence section on the denial and/or discussed in the reasons and bases.

In other words I believe I have read where not all evidence must be listed it is assumed that if the evidence is in the claims folder it was considered. Is this correct?

Thanks

[carlie]

bump

[ruby]

Thanks everyone.

Ok, here is the issues.

In the evidence section they listed Dr S (IME), Dr V (specialist) and they stated "a virtual review of your records did not show any additional evidence pertinent to your claim (dr R).

Dr S IME was mentioned and used to grant the claim for HS. The portion of his IME that said he reviewed my SMR's and his opinion on the second issue was not mentioned in the denial of the secondary claim.

They mention his evidence in the evidence section and they granted on his opinion for one issue but the second issue in his IME was never mentioned.

Where does that leave whether they considered or didn't consider this evidence on the secondary issue.

Dr. V they listed in the evidence section and denial stating although he gave a positive opinion " he didn't have the complete claims file"---This is after the Nieves-Rodiques-Peake decision that says they can't do this. I can request they give me a legal and medical basis to deny. Secondly, this issue has nothing to do with reviewing a claims file its a secondary condition to a sc condition.

Dr. R--evidence section states virutal record didn't show any evidence pertinent to your claim---Legal techniquality was this evidence reviewed and discounted.

I believe they are required to discount all medical evidence that is probvative and credible---but they don't have to address it otherwise------this is up to the RO as they decided what is probvative and credible.

Based on the above was my evidence reviewed or considered?

[Berta]

1.I think you could ask them to Reconsider this as specifically for the secondary claim:

"The portion of his IME that said he reviewed my SMR's and his opinion on the second issue was not mentioned in the denial of the secondary claim."

Then:

2."Dr. V they listed in the evidence section and denial stating although he gave a positive opinion " he didn't have the complete claims file"---This is after the Nieves-Rodiques-Peake decision that says they can't do this. I can request they give me a legal and medical basis to deny. Secondly, this issue has nothing to do with reviewing a claims file its a secondary condition to a sc condition."

GOOD FOR YOU!!!!! You did some great leg work here!!!!

Whip out Nieves-Rodriquez and send it to them- maybe this critique of this CAVC decision by Rich Cohen (one of my favorite lawyers for vets)instead of the entire CAVC decision will get them straight on that part He is the Exec Director of NOVA and the VA knows who he is:

source: http://wvajustice.com/?cat=1

IT’S THE LAW

by Richard Cohen, Esq.

©2008 Richard Cohen

Attorney at Law

235 High Street, Room 513

P.O. Box 771

Morgantown, WV 26507-0771

(304)-413-0838

vetlaw @wvajustice.com

http://www.wvajustice.com

January 2009

MEDICAL OPINIONS

In a groundbreaking case the Veterans Court put a stop to the VA’s practice of rejecting private exams for based on the failure of the private doctor to have reviewed the entire claims file.

In the appeal of Nieves-Rodriguez v. Peake dockret 06-0312, decided December 1, 2008, the Veterans Court was faced with a typical situation where the VA rejected the opinions of a treating physician and of an examining physician both of whom concluded that he developed depression as a result of his Guillain-Barre syndrome which was treated in service. The reason given for rejecting those opinions was that neither private psychiatrist performed an in depth claims file review.

In rejecting the VA’s reasoning the Court noted that the VA sought to set up a situation where the absence of the claims file would operate as an automatic penalty against an opinion offered by a private physician. The Court specifically decided that when the Board uses facts obtained from review of the claims file as a basis for crediting one expert opinion over another, it is incumbent upon the Board to point out those facts and explain why they were necessary or important in forming the appropriate medical judgments. Additionally, claims file review, as it pertains to obtaining an overview of the claimant’s medical history, is not a requirement for private medical opinions. The Court concluded that a private medical exam may not be discounted solely because the opining physician did not review the claims file. And, the Board may not prefer a VA medical opinion over a private medical opinion solely because the VA examiner reviewed the claims file."

----

3."Dr. R--evidence section states virutal record didn't show any evidence pertinent to your claim---Legal techniquality was this evidence reviewed and discounted."

DID this info from Dr. R contain probative evidence for the claim? Why would they question that it was not pertinent?

This evidence from Dr R could be highlighted and re submitted as it appears they gave no reasons or basis or any medical rationale at all for discounting it?

I hope I live long enough to see the day that we claimants don't have to practically become doctors or lawyers ourselves.

I commend you for going over the decision word by word and raising so many good points here to rebutt what they said.

Do you have the support of a vet rep?

A reconsideration request might well draw them out on these points you raised. It wont stop the NOD year deadline however-but still maybe it could help you get closer to a better decision.

You sure are right as to the secondary condition- that should only need medical evidence of nexus or association to the initial SC condition-and the SMRS and files were already reviewed to determine the initial SC.

Funny how they manipulate evidence-

they mentioned one of my IMOs when I filed a CUE claim but the IMO had nothing to do with the CUE claim but they managed to ignore this same IMO and 2 more IMOs for 7 years regarding my main claim-the reason for the 3 IMOs.

This crap has to be deliberate.