"Absence of Evidence" is not "evidence of absence".

[broncovet]

Dont Let VA pull this one on you, but they try it all the time.  

 

https://www.veteranslawblog.org/get-your-va-award-letter/

In pertinet part:

Quote

“The VA examiner based her negative nexus opinion exclusively on a lack of evidence of treatment for sleep apnea while in service, or for 16 years after service…[r]elying on the absence of evidence in medical records to provide a negative opinion is contrary to established case law, and such opinions are therefore inadequate.”

Understand the difference between "negative evidence" and "lack of evidence".  

If your doctor administers tests for, say, diabetes, and the results are negative, then that is "negative evidence".  This would go "against your claim" for diabetes.  However, if the doctor says your military service is absent a diagnosis of diabetes, then its possible, or even likely you could have still had diabetes because:

1.  Maybe you were never tested for diabetes in service but you actually had it.  

2.  Maybe you were tested, but the doctor failed to enter this into your medical record.

3.  Maybe your doctor entered it into your records, but for whatever reason, the rating specialist either could not find it, or, he top sheeted you and never bothered to read it.  

Bottom line:  Dont let VA deny you and put in the reasons and bases "your SMR's were negative for diabetes", because its a logic error to try to prove a universal negative.  

 

[MikeHunt]

17 hours ago, porgee said:

... but now we can win

with no evidence just get the IMO JUST DONT SOUND RIGHT TO ME.

...

take  some time to get them to look at the evidence to me 10 years for them to read ny evidence but they paid off

finally. 

Hopefully, no one's saying you can win without evidence. The IMO /IME is basically like going to a sit-down restaurant instead of the chow hall. You're more likely to get someone to take the time to listen to you.

The RO looks at the DBQ/ opinion- In fact, my buddy got an opinion from a VA examiner, and the RO used their in-house MD to deny it anyways!! So there's really no sure thing.

In short, they have - private or VA- to provide reasoning for the opinion. The VSR is supposed to read through it before marking RFD (Yeah, right) and the rater definitely has to.

If it's an increase or a 'presumptive,' then the opinion and in-service event is 'presumed.'

And congrats!

[porgee]

2 hours ago, MikeHunt said:

Hopefully, no one's saying you can win without evidence. The IMO /IME is basically like going to a sit-down restaurant instead of the chow hall. You're more likely to get someone to take the time to listen to you.

The RO looks at the DBQ/ opinion- In fact, my buddy got an opinion from a VA examiner, and the RO used their in-house MD to deny it anyways!! So there's really no sure thing.

In short, they have - private or VA- to provide reasoning for the opinion. The VSR is supposed to read through it before marking RFD (Yeah, right) and the rater definitely has to.

If it's an increase or a 'presumptive,' then the opinion and in-service event is 'presumed.'

And congrats!

maybe I didn't read this correct WHAT ARE YOU SAYING?

[porgee]

You can buy an IMO-IME BUT CAN you buy your evidence ???

[broncovet]

No you can not "buy" evidence.  The first thing you should do is to figure out if your records are correct, by ordering a copy of your cfile.  

You may be suprised the evidence is right there.  

In some circumstances, buddy letters can help.  Remember, your friends can testify things like they were there when you broke your leg in service, even if your medical treatment somehow got lost.  

Old fractures tend to show up on new xrays to further coroborate your buddy letters.  

You also may try another avenue to get your records, other than what the VA already has.  For example, you can contact the hospital or ciinic you were treated at for their records.  

There are many things you can do.  Focus on the basics:  Current diagnosis, in service event or aggravation, and nexus.  

If you are lacking documentation of the in service event, then sometimes buddy letters will suffice.  No your friend can not diagnose a fracture, but he can report that he saw you when you got injured and then saw you in a cast some time later.  

The "in service event" does not always have to be documented by a doctor.  The nexus and the diagnosis must be made by a doctor or medical professional, but the in service event can be documented with lay evidence.  

[porgee]

then you have to prove you was even there at that time .Evidence you

cant make this up, but good luck on the ones who try. Its ant  my money

good luck.

Edited July 9, 2017 by porgee