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Board Can Not Reject Favorable Evidence Without Discussing It:

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broncovet

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  • Moderator

This is a quote from a board decision: Veterans note this when appealing:

http://www.va.gov/vetapp11/Files2/1116940.txt

from the above decision:

The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The Board wishes to emphasize this point with regard to the claims on appeal. The Veteran's case currently encompasses 11 claims files spanning 20 years of active adjudication. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board is well aware that it cannot reject evidence favorable to the Veteran without discussing it. See Daves v. Nicholson, 21 Vet. App. 46 (2007). In this regard, the Board will discuss such favorable evidence individually when such a discussion is required to properly weigh that evidence. However, to the extent that the multiple pieces of evidence address the same argument or advance the same evidentiary point, the Board will discuss that argument or the evidentiary point itself rather than the specific documents which advance them.

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Hello Bronco,

This is great information and shows the BIG difference between the Regional Offices and the BVA. The Regional offices do not need to follow any laws. Its all about denials and remands that are literally forced by the BVA who seem to be able to read and follow the law. Hence the huge backlog.

For instance my denial listed all environmental reports were not open for discussion and that the medical IMOs were therefore not probative. As you pointed out in your post , the BVA must discuss the evidence. If the Regional Office had its way it would not have to read or adjudicate in a favorable decision to any Veteran. It is only because of the courts that uphold the law and remand it back for the Regional to correct their mistakes. Which should have been done the first time around. The amazing thing is that it is not criminal what the Regional office does.I believe the Regional Office Service Managers should be allowed to have criminal charges brought against them. I would bet that the whole adjudication process would be a different sort than we are dealing with now. Of course we know the reason is because many Veterans just quit and never get it to the BVA. Thanks again Bronco for posting this and I hope this sinks in to our Veterans who may be thinking of giving up on their claims or appeals because of a faulty Regional Office decision. As always NEVER GIVE UP. God Bless, C.C.

Edited by Capt.Contaminate
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  • Content Curator/HadIt.com Elder

Very interesting

"If it's stupid but works, then it isn't stupid."
- From Murphy's Laws of Combat

Disclaimer: I am not a legal expert, so use at own risk and/or consult a qualified professional representative. Please refer to existing VA laws, regulations, and policies for the most up to date information.

 

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Hello Bronco,

Exactly. The VA tactics almost always provokes an appeal from those of us who see thru the folly. I am currently going thru this appeals process and nearly 5 years with no C and P as yet. I am so looking forward to getting the BVA to look at the Medical and evidence that will trigger a sound, FAIR, decision. Thanks again for this post . It is a very important one and the BVA cases are worth noting for all of us. NEVER GIVE UP. God Bless,C.C.

Edited by Capt.Contaminate
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  • HadIt.com Elder

The VA has been cherry picking the evidence they received for decades. Many vets give up when they get denied by BVA, but I say press on since by not reviewing valid evidence you are being denied due process.

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I did a search for "Daves Vs Nicholson" referenced in the BVA case cited below. Interestingly, "Daves Vs Nicholson" does not show up, but other cases citing it do. The VBM points out that there are some "public" cases, and there are also those which are not released for public eyes.

The question is "why" are some cases not public?

My search for Daves may be the answer: The VA does not want us to "figure out" the system, they would much rather we be ignorant and homeless.

The Daves search brought this case up, which cited Daves.

http://38uscode.com/Courts/VetCourt/2007/McClain_05-0468.pdf

I also think this case is of interest. In it is says:

The Board's finding that Mr. McClain suffered from major depression in part due to his

service is favorable to Mr. McClain and may not be overturned by the Court. See 38 U.S.C.

§ 7261(a)(4) (only a "finding of material fact adverse to the claimant" may be overturned if clearly

erroneous); Medrano v. Nicholson, __ Vet.App. __, __, 2007 WL 1201524, at *4 (Apr. 23, 2007)

(noting that Court is not permitted to reverse Board's favorable findings of fact); see also Snyder v.

Principi, 15 Vet.App. 285, 299 (2001) (holding that, except where the Board lacked jurisdiction in

the first instance, "there is no case or controversy as to a [board] determination that was favorable

to an appellant").

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