Favorable findings supports claim

[dwbell99]

In the situation below, does the Favorable findings below support what is claimed?

CLAIMED: chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely due to abnormal gait caused by service connected left ankle disability.   

Favorable finding identified in this decision:
- Private examination for Dr. IMO opined that chronic L5-S1 disc degeneration & bilateral lower extremity sciatica are more likely than not less secondary connected (due to abnormal gait caused by service connected left ankle disability).

 

Edited October 31, 2019 by dwbell99
updated claim history

[vetquest]

Your IMO is the best I have seen, the VA DBQ looks weak compared to it.  I do not know how the rater made his decision that the VA DBQ is more objectively based.  I still cannot find where the VA examiner stated less likely than not, I do not know if the rater requested information after the VA DBQ was created but that might be the case.   This appeal begs to be granted. 

I will ask @broncovet, and @Buck52 what they think about the rating decision being so sloppy?  I do not know if we can challenge the quality of a rating decision.

[Buck52]

Yes I agree with Vetquest here  all your IMO'S Seem to be favorable to what your claiming (increase?) or Appeal.(I have not read all your post so not familiar with this.claim .

However make sure these opinions from these Dr's have their medical credentials listed along with years of experience and what they specialize in...ect,,ect,,  Also its good that these Dr's list their times of practice and ask that if you need to speak to me my office hours are  from 9:00am to 5:00.pm Mon thru Fridays  my phone # is  ***-***-****  please feel free to call if you have any questions .

Most times they will call these specialist if they have a question they need answered  and this gives the specialist credibility  with the rater.

Normally the VA will take a specialist opinion over a VA MD.

[vetquest]

@dwbell99, There are three hayes vs brown decisions in 1993.  I cannot find any mention that a rater does not have to accept a physician's statement.  In fact hayes vs brown notes 38 U.S.C.A. § 5107(b) (West 1991) regarding benefit of the doubt.

[vetquest]

I found where the CVA stated the fact that the examiner quoted.  I will research more on this.

[vetquest]

@dwbell99, It appears that in citing of hayes vs brown your rater has set a high bar that he claims to have hurdled.  I looked at the references that make hayes vs brown acceptable and these are the references.

 

The first reference for this is wood vs derwinski and states:

The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character.").  As with any determination, however, the Board must explain the reasoning behind its credibility assessments. Its statement of reasons or bases must be adequate to enable an appellant to understand the precise basis for the Board's decision, and to facilitate informed review in this Court.  38 U.S.C. § 7104(d)(1)

 

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The second is Wilson vs derwinski and it states in legalese:

The CAVC addresses the criteria for an expert witness, probative value, and “where the Board favors one medical opinion over another, the Court will review the Board’s decision to determine whether these criteria have been met or properly applied.”

“C. The Determinants of Probative Value in Medical Opinions
Part of the Board’s consideration of how much weight to assign is the foundation upon which the medical opinion is based. Kowalski, supra; Reonal v. Brown, 5 Vet.App. 458, 461 (1993)
9
(holding that the Board may reject a medical opinion that is based on facts provided by the veteran that have previously been found to be inaccurate); Swann v. Brown, 5 Vet.App. 229, 233 (1993)(same); Wilson v. Derwinski, 2 Vet.App. 614, 618 (1992) (stating that the Board must evaluate the credibility and weight of the history upon which a medical opinion is predicated).
Both VA medical examiners and private physicians offering medical opinions in veterans benefits cases are nothing more or less than expert witnesses. While the Federal Rules of Evidence are not binding in this Court, nor on the Board, the rules on expert witness testimony provide useful guidance that has been exhaustively vetted by both the Rules Advisory Committee and by the U.S. Congress. In U.S. district courts, expert testimony may be received from a suitably qualified expert under the following conditions: (1) The testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the expert witness has applied the principles and methods reliably to the facts of the case. See FED. R. EVID. 702. The Court agrees that these are important, guiding factors to be used by the Board in evaluating the probative value of medical opinion evidence, and that this Court’s review of the Board’s evaluation of competing medical opinions will be enhanced by their application. Notwithstanding that medical professionals offering medical opinions in veterans benefits cases do not typically testify subject to crossexamination, the Court believes that these criteria are important indicators of the probity of medical opinions. Therefore, where the Board favors one medical opinion over another, the Court will review the Board’s decision to determine whether these criteria have been met or properly applied.

The CAVC goes on to state:
It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.

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Therefore, a private medical opinion may not be discounted solely because the opining physician did not review the claims file. Likewise, the Court holds that the Board may not prefer a VA medical opinion over a private medical opinion solely because the VA examiner reviewed the claims file.
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That the medical expert is suitably qualified and sufficiently informed are threshold considerations; most of the probative value of a medical opinion comes from its reasoning. Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a serviceconnection or rating context if it contains only data and conclusions. See Stefl, 21 Vet.App. at 125(holding that “a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor’s opinion”); Miller v. West, 11 Vet.App. 345, 348 (1998) (“A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.”); see also Dennis v. Nicholson, 21 Vet.App. 18, 22 (2007)(“The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases.” (citing Abernathy v. Principi, 3 Vet.App. 461, 465(1992))); but see McLendon, supra, (holding that a conclusory opinion may furnish enough evidence of current disability or medical nexus so as to call for a VA medical examination).

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It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.

 

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The last precident noted is sanden vs derwinski and I find it to read:

The Board must assess the weight and credibility to be given to the evidence.

[vetquest]

@Buck52, @Vync, can you please take a look at what I have provided previously and comment.

hayes vs Brown states:

that there is not requirement to accept a VA examining physician's opinion a
private physician's opinion, a social worker's opinion, or the opinion or
contention offered by any other source, but there is a responsibility ot
assess the credibility and weight to be given the evidence and to give
sufficient reasons and bases for a decision.

Edited October 19, 2019 by vetquest