RO Denials

[paulstrgn]

This may be a dumb question.

When the RO denies your claim are they supposed to state why your submitted DBQs and IMOs did not out weigh their opinion? They only state that their MO stated they could not find evidence of service connection and under the heading of "Favorable findings identified in this decision "Treatment Reports" and not the IMO itself. Does this suffice as indicating they looked at the IMO? It does not mention the other DBQ which was also part of the file. 

Thanks for any and all opinions.

[broncovet]

The "reasons and bases" for denial is a frequent reason that BVA decisions are remanded by the CAVC.  They use the term an "adequate" reasons and bases, and yes, it should include why the Board selected one doctors opinion over another, such as one exam was more thorough.  

However, when appealing a RO decision, dont expect their reasons to make any sense.   Generally, the BVA does not remand a RO decision on a "reasons and bases", tho you may have an idea there.  

Attorney's, when evaluating bva decisions often look for inadequate reasons and bases, because that would virtually guarntee a remand, where the attorney gets paid through EAJA, AND the claimant can benefit, too, as he is given an opportunitiy to submit new and material evidence, under 38 cfr 3.156 b to substantiate any deficiencies his/her claim may have.  Usually that would mean his claim had an inadeqate or missing nexus.  

My advice is to appeal your VARO denial, and pay particular attention to "refute" their reasons for denial.  

Example:

"While the  VARO decision stated there was "no evidence of this disorder in service", a medical exam of ddmmyy, when the Veteran was in the military, clearly stated the Veteran was diagnosed with "xxyyy disorder".  Contrary to the VARO decision, the Veteran, indeed, was diagnosed with the disorder in service.  Then, include a copy of the applicable medical exam from service with the nod.  

Edited November 6, 2018 by broncovet

[paulstrgn]

Unfortunately what you say makes sense, I will do what you suggest. I will appeal the decision and I will layout my evidence vs their and to why more weight should have been given to my evidence. I will make sure that they have the evidence that was used for the IMO (service records), unfortunately the VARO forgets equally strong medical opinions for and against goes to the vet.

As always thanks for the advice.

[Berta]

If the VA completely ignores any strong IMO/IME you send to them, that fully complies with the IMO/IME criteria here at hadit, they have violated 38 CFR 4.6. And  you can file CUE- the sooner the better.As well as file an NOD.

I would file the CUE first, if it is a very recent decision.

File it under CUE  auspices of 38 USC5109 

Then state the date of the decision ( I always enclose a copy of the decision) and state  that they violated 38 CFR 4.6 and paste that regulation below  into the claim. Make sure you put Attention to: on the CUE claim and use the aphanumeric code they have put on the decision.That code holds the initials of the last VA person who worked on your claim.

State that they ignored your IMO, sent in on (date) and want it to be properly applied to your claim and you are enclosing a copy of it again.

We have a wealth of info here on CUE.

I hope the IMO/IME doctor had expertise in the field of the disability, and also could rebutt any begative C & P exam the VA did. Also in many cases a good IMO/IME doc will cite abstracts, or other current medical studies etc that bolser their opinion.

"38 CFR 4.6 - Evaluation of evidence.

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§ 4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

https://www.law.cornell.edu/cfr/text/38/4.6

Edited November 8, 2018 by Berta

[paulstrgn]

Thanks Berta I will follow your advice.