Must The Examiner Consider All Medical Evidence?

[vern2]

Found this while doing research in CAVC:

Welch, 08-3923, United States Court of Appeals for Veterans Claims

There is, however, no requirement that an examiner discuss all of the evidence in the record; rather, the examiner must consider all of the relevant evidence before forming an opinion. Stefl, 21 Vet.App. at 123; Ardison, 6 Vet.App. at 407. Additionally, there is no reasons or bases requirement imposed on a medical examiner other than to describe the disability in sufficient detail for the Board, as set forth above. Id. (quoting Green v. Derwinski, 1 Vet.App. 120, 123 (2007)).

In my case, noticed that the examiner overlooked or ignored 90% of my medical evidence, including IMO, DBQ, to arrive at this opinion.

The big question is why is there not a requirement for the examiner to discuss all of the evidence in the record, instead of " all of the revelant evidence"? This seems to be wrong to me, as what I and my doctors consider revelant may not be considered revelant by the VA medical examiner.

Does anyone have any experience in this area with their claim?

[jesusplay]

based off what I read in my award letter the rater just looked at what the medical examiner put in the C&P.

[georgiapapa]

For an examiner to overlook or disregard medical evidence from another medical professional especially a doctor who specializes in the diagnosis and treatment of a disease or injury being claimed by the veteran as disabling is outrageous. From what I have experienced personally and read on this site, a majority of C & P exams are performed by nurse practitioners, not doctors. How can the opinion of a NP be given more consideration than a DBQ or IMO completed by a physician?

[carlie]

The first step for something we feel is evidence, to be considered as evidence and weighed as evidence

is that it pass the criteria's for credible and probative.

Below is a link to a BVA decision that defines / explains the criteria for credible and probative evidence.

http://www.va.gov/vetapp14/Files2/1416569.txt

[john999]

Until 1990 the VA did not even have to list any evidence they used in a rating decision. This really hurts old timers trying to get retro via the CUE route. Now they still have weapons like accusing the vet of doctor shopping when they send in an IME. Nobody in the world cheats like the VARO?

[Berta]

I just caught this Carlie....good link.

The BVA case states:
"The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of not only establishing there is a VCAA notice error but also, above and beyond that, showing the error is unduly prejudicial, meaning outcome determinative of the claims. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009)"

I had a major VCAA error in my 2003 AO DMII death claim. and raised this legal error on my I-9.

The BVA caught the error too. However, my evidence was so probative, that it overcome the error.

Other claimants however, might not even know their VCAA letter was so deficient that it was prejudicial to them.

They might not even know exactly what evidence they need from a deficient VCAA letter.

Survivor's VCAA letters are far different in some respects from veteran claimants VCAA letters.

At the time I had a state VSO and not he nor even the director of this state org (by letter to me) would agree that my VCAA letter was deficient.

About a year later, they had a VSO at their office at the local VAMC who only covered the office from time to time. I asked him to open my file and read my VCAA letter. Right away he said it was highly illegal and was surprised that the POA would not support me in attempting to get it fixed.

Widows seems to have a lot of remands on stuff like this....I guess the VA thinks we are stupid, and we arent , but then again how many widows really understand the nuances of the claims process, and unfortunately they,like me, could get a bunch of dopes. from both a state vet affairs department and also the DAV, years ago, to give me faulty representation.

[Notorious Kelly]

In court, everyone hears and knows what evidence is being considered.

In VA kangaroo court, you have no idea what specific evidence was considered by the Examiner, how hard they dug thru your file to make your case for you, and how prejudiced they may for denial.

The VA holds all the cards and vets languish and die for it.

We need to change this.