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?

[john999]

In a real court of law all evidence is supposed to be shared with the prosecution and defense. That is basic to the system. No secret evidence except in these terrorism cases.

In the VA kangaroo system it is assumed the VA gives perfect consideration to all the evidence in the record. We all know this is a damn lie, but all you can do is appeal and try and stick their nose in it. In the VA there is not supposed to be an adversarial situation until you get to CAVC at least. Then it is very adversarial and all the dirty tricks that are suppose to be used to protect us poor incompetent and ignorant vets are suddenly used to cut us to pieces.

John

[broncovet]

You can challenge a "defective" C and P medical exam, but the only way to "refute" it is with another medical opinion.

If you think the exam was defective in that it did not consider your entire medical record, then you need to appeal on that bases. If you win the appeal, you may get a "new" medical exam.

The completeness of a medical exam, or lack thereof, is an appealable issue.

However, Without a IME/IMO or conflicting medical exam, the judges wont practice medicine and over rule your medical exam. The judges are forbidden to make medical determinations, and must rely on medical professionals opinions. Doctors have a presumptive that they have done a good, complete job until/unless it is refuted by another medical exam.

[militarynurse]

Hypothetical broken leg comp claim: What if the C&P doctor states "no broken leg" when there is an x-ray report stating there was a broken leg in the claimant's service medical records made available to and for review by the C&P doctor. The C&P doc missed reading it and so the claim was denied. A NOD was not timely filed, however, would this obvious error of not considering the radiology report indicating there was a leg fracture constitute a "CUE"?

Edited July 6, 2014 by militarynurse

[broncovet]

Military Nurse:

Intuitively, no. "Medical mistakes" are not an error on the part of the VA compensation. Cue must be based upon the evidence available AT THE TIME OF DECISION.

So, the rating specialist made no error relying upon the medical evidence available to him. It is the Veterans responsibility to timely appeal the decision within a year, even if this involves medical mistakes, errors in the C and P exam, etc.

The rating specialist weighs positive and negative evidence. If one medical report said the leg was broken, and another said it was not, the rating specialist chooses which medical professional to go with. The outcome is "debateable", since there is evidence for both sides. If the outcome is "debateable" it wont meet the "CUE" standard as "benefit of the doubt goes to the Vet" goes out the window with CUE.

However, if this decision was timely appealed, the Veteran would get "benefit of the doubt". The Cue standard of review would "kill" this hypothetical claim. Motto: Always appeal your claims in a timely manner.

[militarynurse]

Thanks for the reply. My two pronged response:

1) I thought it might be a CUE if it involved an error as to the application of the fact that existed when the CUE was made & it manifestly would change the outcome of the past claim if successful. In this hypothetical case, if the C&P doc makes no mention of the prior x-ray report indicating a broken leg in his/her C&P examination report, that would seem like an "error as to the application of the fact that existed when the CUE was made." Differences in medical opinion is one thing, however, not addressing whatsoever a key objective medical test seems more like an error as to the application of a fact that would manifestly change the outcome of the past claim if successful and therefore rises to the level of a CUE.

and,

2) "If one medical report said the leg was broken, and another said it was not, the rating specialist chooses which medical professional to go with. The outcome is "debateable", since there is evidence for both sides. If the outcome is "debateable" it wont meet the "CUE" standard as "benefit of the doubt goes to the Vet" goes out the window with CUE."

-At the time of the rating, if there are two differing medical opinions of equal weight, that may indeed be debatable, however if it's an even 50/50 debate then shouldn't the tie breaker go to what's in the Veteran's favor by law? If it didn't, wouldn't it be that since the rater didn't give the benefit of the doubt to the Veteran be a CUE based on error of law?

Just trying to get my head around this CUE thing. So I'm seeking advice from those somewhat familiar with it.

Edited July 7, 2014 by militarynurse

[john999]

For a claim or evidence to be "debatable" if there is one shred of what the VA calls "evidence" then your CUE will fail. You can have a medical opinion from a famous specialist on one side, and a statement from an unidentified ward clerk on the other side, and now you claim is "debatable". I know because this happened to me. For a CUE based on medical evidence all the medical evidence must be on the vet's side. Using the broken leg example if the vet had a x-ray that the VA ignored in the original rating, and the VA had a nurse assistant that said the vet seemed to walk without pain then the VA can use the nurse assistant's statement to say the contention of a broken leg is debatable. All the medical evidence must militate in favor of the vet for him to win a CUE when it is a question of medical evidence. This may seem absurd, but I lost my CUE at CAVC on that point and other bizarre points as well. Benefit of doubt does not apply in a CUE. Nor does duty to assist or most of the other points vets are used to in a regular claim. This issues will be used against you in a CUE. Also, the court accepts that anything the VA says is the truth, and unless you can prove otherwise, anything you say is just speculation and unsupported, therefore untrue. AskNod says your CUE must be visible from the moon for you to win.