Favorable finding

[SPO]

Someone recently posted about  favorable findings and it made me think.  Is the VA required to declare all favorable findings (ex: other doctors diagnosis/concurrence with diagnosis different from the c&p examiner) or do the only have to declare what they want in the decision?

[broncovet]

Definately a "grey area" here.  When a board makes a decision, they are supposed to give an "adequate" reasons and bases for decision.  

Attorney's often win appeals at the CAVC if the board fails to give an adequate "reasons and bases" for their decision.  

Now, we get to the grey area.  The board does not have to give a reasons and bases as to why they took a break and went to the water cooler for a drink while deciding your claim.  

However, IF THE CAVC decides  that the board did not give "adequate reasons" for not awarding benefits and considering favorable evidence, then that could be a base for a remand.  

Example:

      Your doc said it was "at least as likely as not" that your condition was related to service.  The board denies, but does not mention this probative evidence.  Your attorney could appeal on the bases that the Board gave no adequate reasons "why" your favorable evidence was not considered.  

       Now, lets supply example 2.   My doctor says "the Veteran is very honest and and all around nice person".  I appeal, because my Board decision does not mention this favorable evidence.    Probably not.  

       The CAVC gets to judge each time whether you issue is "Example 1" and worthy of a remand, or example 2, which makes no difference.  

[SPO]

In this case it is a regional office decision. However, the only piece of favorable evidence they identify if that’ I am service connected for the condition I claimed as primary to this secondary claim.  There is a dbq and medical opinion that are in my favor but they are not mentioned in the favorable evidence.

[broncovet]

Ok.  Your (favorable evidence) is not mentioned in the "evidence section"?  Ok, that means the VA probably lost your favorable evidence (often on purpose, but VA denies this, but I know better).  

This means you need to appeal this and WITH new relevant evidence.  (Supplemental claim lane).  Then submit the new, favorable evidence, and wait.  

[SPO]

Everything is listed in the evidence section. Just not favorable findings.  They basically disregard the positive stuff all together and choose the exam that last exam that worked best in their favor.  Do they need to identify everything that was favorable even if they chose to override that information in the final decision?

Edited October 1, 2019 by SPO

[broncovet]

Im not sure what you mean.  Did you mean the evidence section lists "Doc exam dated 11-27-2018 (which contains your favorable evidence) or not?  

If its listed in the evidence section, then it supposedly was considered.  If not, it was not considered.  

Or, do you mean that exam was in the evidence section, but they did not mention "the favorable portion" of the exam in the reasons and bases?

I already suggested what to do in the former post, but if they did not give a reason and bases as to why your favorable evidence was not considered (in the denial), then you appeal.  You cite your reasons for appeal in the decision either way, only if your favorable evidence was not in the evidence section, then resubmit it.  

Example:  

    I disagree with the decision date 3-25-2019.   While, the evidence section lists the exam dated 11-28-18, no reasons and bases were given for denial when this doctor opined, "the Veteran's PTSD is at least as likely as not due to the experiences he had while in military service".  The va offered no reasons as to why this was not considered and it was instead, denied with no reason given.  

[SPO]

The exam was listed in evidence but the “favorable portion” was not mentioned in reasons and based.