Colvin violations

[broncovet]

As you may know, the VA can not "substitute" their own unsubstantiated opinion, for that of a qualified medical professional on medical issues.  

    Further, if the VA does reject a competent medical professional opinion, they have to give a reasons and bases as to why they rejected said opinion.  

    If they dont do this, above, this is a "Colvin" violation.  Example:

    You go to the audiologist for a hearing exam.   YOur audiologist opines, "The Veteran's hearing loss is at least as likely as not due to noise exposure in military service".  

     VA denies you.  The decision maker states that, "its been xx years since military service" so, therefore, your hearing loss cant be related to military service.  

    Do you see the Colvin violation?   This decision maker invented his own criteria, disregarded a competent medical opinion and substituted his own (unsubstantiated) opinion.    The audiologist already provided the nexus.  If the decision maker decided to reject this audio opinion, he would need a great reasons and bases for rejecting this opinion, such as maybe 2  audiologists who offered a conflicting opinion, especially if these audiologists did a more thorough exam and read your history.   But this must be stated in the R and B as to why this medical professional opinion was rejected. 

Here is one attorney's opinion of Colvin, there are others:

https://veteranclaimsresearchcases.wordpress.com/2009/04/07/bva-rendering-its-own-medical-opinions-colvin-v-derwinski-no-90-196/

 

NVLSP opines that "Colvin" is one of the "Top 10" cases as follows:

VA Can’t Base Denial on its Own Medical Judgment Colvin v. Derwinski, 1 Vet. App. 171 (1991) Colvin stands for a now deeply embedded and fundamental principle of veterans law—the VA may use only independent medical evidence to support its benefits decisions. The VA may not use the medical opinion or judgment of the VA rater or BVA Veterans Law Judge to support a decision. For many years prior to Colvin, VA decisions were based on the findings of VA physicians who were part of the decision-making process. A doctor employed by VA would not only provide the medical opinion that would be used to decide the claim, he or she would participate in deciding whether to grant or deny benefits. This practice of having VA doctors play a decisionmaking role was ended by Colvin. The Court held that: If the medical evidence of record is insufficient, or, in the opinion of the BVA, of doubtful weight or credibility, the BVA is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions . . . . This procedure ensures that all medical evidence contrary to the veteran’s claim will be made known to him and be part of the record before this Court. Colvin, 1 Vet.App. at 175. But advocates must watch out . . . even though the formal procedure of having a VA doctor play a decisionmaking role stopped after Colvin, VA raters and BVA Veterans Law Judges persist in relying on their own medical judgments to decide claims. For example, the VA and BVA may often make a determination that an

 “TOP 10” COURT CASES FOR ADVOCATES in-service injury was “acute, without chronic residual disability.” However, the degree of injury and whether any disabilities resulted from the injury are medical assessments that the VA and the Board are not competent to make unless there is independent medical evidence to support that conclusion. This means that in many cases the VA’s determination that an in-service injury was acute and did not result in chronic disability may violate Colvin. Another common problem is that the VA may dismiss favorable medical evidence of record without citing to medical evidence in the record or medical literature to support its rejection. A good rule of thumb based on Colvin is that if there is a VA-made medical conclusion—not directly based on a medical examination report, advisory opinion, or medical literature— the conclusion may be erroneous because the VA has no independent medical support for its findings. Decisions containing unsupported medical conclusions should be appealed. Low Threshold for Who Receives