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Evidence-


Berta

Question

I cant believe how long it took me to find this-

38 CFR describes evidence but M21-1 expands on evidence and tells VA how to evaluate it.

This is the Dec 13, 2005 guideline for VA Raters etc- in M21-1MR,Part III,Subpart iv, Chapter 5.

About 9 pages-

This might help someone who is not getting their evidence addressed.

It says they have to consider medical treatises- but when I have sent them for my claim they were listed simply as "letters" from the claimant- yet in many other cases, medical treatises have helped VA make proper awards-

Then again it states that even "letters" from the claimant have to be weighed as to potential probative value.A claimant can certainly give lay testimony as to symptoms etc- that are also supported by the facts of the medical records.

This document says that the responsibility "for reviewing the evidence" falls on the RSVR

(Rating Service Representative) who "determines the probative value of medical or lay testimony."

I fully questioned VA's listing of a General Counsel Pres Op which I enclosed as evidence for my CUE-

listed as a mere "internet printout from the claimant"and it was never addressed as to it's prime significance to my CUE claim.

It re-established the very VA case law that supports my CUE-the law and regs they broke that prompted the CUE.

Regional Counsel in Buffalo had the files in early Nov -I hope they caught that.

BVA decision are not binding at all on the VA.

CAVC precedential decisions are-and of course General Counsel Precedential Opinions are too.

If you use a CAVC decision or a OG Pres Op I suggest that you refer the VA with the actual http: link in your claim and then attach the actual opinion, highlighted as to it's significance to your specific claim.

If the VA had read the Pres Op I attached- they would have awarded this CUE.

Dont see how they could have gotten out of it.

MORE_Evidence_38_CFR.doc

Edited by Berta (see edit history)
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What I meant Josephine is that- say the BVA grants an award to a veteran for let's say carpel tunnel syndrone as they find it directly due to the veteran's SCed residuals of gunshot wound to lower arm-

A veteran with a very similiar claim might want to send this BVA decision to the RO to support their claim.

But the VA still needs medical information specific to their own medical situation-

a similiar BVA claim can't help in this situation.

BUT- I have been working with a widow from one of my vet orgs.Her husband (100% P & T PTSD ) died recently due to heart disease.

There are BVA decisions that do show VA might award a claim like this (PTSD causing heart disease) but it needs very strong medical evidence.

I was going to send some of these links to her for an example of why they deny many and award few- all based on strong medical opinions-

Then- a miracle happened-

This widow was referred to me by Vietnam Combat Vets , ltd-I am a member-I guess they sure gave her some good advise right away-

She has three independent medical opinions already that show her husband's heart disease was definitely caused and excerbated by his PTSD and that the PTSD contributed to his death.

She doesn't need any BVA decision.She hasnt even filed the DIC forms yet -needs to do that ASAP.

CAVC is different. Many years ago they decided Washington V Derwinski and a few other claims that precedentially and specifically stated that when the VA knows the veteran gets a SSA award for the same disability they claim at the VA, the VA is supposed to consider the SSA award as ample prove of unemployability due to service connection.

We sent a copy of Washington V Derwinski to the RO with a copy of Rod's SSA award for PTSD in support of claim.

CAVC decisions can involve a final word on aspects of VA case law-

General Counsel Pres Ops are the ultimate final word on VA case law.

A BVA decision can support a CUE as to what regs or rating criteria were in place at time of CUE in a decision from the same year as CUE and I had a BVA remand decision on hold to support my remand request-due to VA case law- yet didnt need it-

but what I meant was that the VARO does not have to consider how the BVA decided most past claims.

Even if the cases are similiar, and the BVA granted the claim- it still gets back to the veteran proving their own specific case with their own medical evidence.

But BVA cases are great to study as to why the veteran succeeded and why they didnt.

Edited by Berta (see edit history)
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  • HadIt.com Elder

Berta,

I think that I have it now.

If the BVA via the AMC should grant my claim, then the Huntington, W. Va cannot turn it around and take it all away from me.

For they would love to do this, for this R. O had broken so many rules and regulations in my claim to date.

Is this correct?

I should have a decision from the AMC for my claim with the projection date of December, as I did advance on the docket.

That was a hurdle and a half to accomplish this. I wrote about 13 pages of Pity me and succeeded.

Josephine

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No- a regional office is not going to go against a BVA decision. 99 % of the time-

I think ROs are so afraid to make decisions that they are grateful when the BVA does.

What I mean by 99% is that my RO has filed a Motion at BVA to re-open and reconsider an old denial I got from the BVA on a CUE I filed over a decade ago.This is an unusual attempt on any RO's part and not done very often.

There is evidence to support this CUE in the med file but my AO claim is much stronger with much more evidence.

Heck-if they read my evidence on my 2003 AO claim- they dont have to do this-

I think it was CTA maneuver.

To cover their rear ends because my BVA transfer was so illegal.

If their Motion succeeds in granting an award- they would have to pay retro but not as much as an award for AO death under Nehmer.

They aint really all stupid at the ROs.

Edited by Berta (see edit history)
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  • HadIt.com Elder

Berta,

I think that perhaps you are correct. The R.O does not want to make a decision.

I knew this in my claim. My representative told me the DRO was not going to make it, that it would have to go to the BVA and for them to do it.

The only dumb part was, don't know how they missed it, but my form 9 had been turned in at the Roanoke Office, long before I received my first C&P.

I still don't know how I filled out a form 9 almost 2 years earlier with a statement from the DRO in Roanoke that said. Just want you to have some ideal of your claim, but it looks like it may be denied, due to a personality disorder, so I am sending you a Form 9 to return within 60 days, but this is not my Final decision, as I am sending you for a C&P examination for " an acquired psychiatric disorder".

I turned in the form 9, which was 5 days shy of the deadline. This was before the DRO received the result of the first C&P, which turned out to be the More likely than Not.

I believe that the DRO knew that when he asked Dr. M to evaluate me from 1979, that it would be a No.

He didn't count on DR. M locating all the medical records from 1965 to date.

Thanks a bunch!

Josephine

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