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Favorable Findings Identified in a Rating Decision


dwbell99

Question

If a rating decision lists in "Favorable finding identified in this decision " that "... 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)", then doesn't this mean the Rating Decision awards secondary service connection?

M21-1, III, iv, 2, B, 5 -  Favorable Findings  states:
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III.iv.2.B.5.a.  Definition:  Favorable Finding
    As stated in 38 CFR 3.104(c), a favorable finding means a conclusion either on a question of fact or on an application of law to facts made by an adjudicator concerning the issue(s) under review.
     Reference:  For more information on findings of fact and conclusions of law, see M21-1, Part III, Subpart iv, 5.A.1.c.
     
         38 CFR § 3.104 Binding nature of decisions.
            
            (a) Binding decisions. A decision of a VA rating agency is binding on all VA field offices as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. 5104. A binding agency decision is not subject to revision except by the Board of Veterans' Appeals, by Federal court order, or as provided in §§ 3.105, 3.2500, and 3.2600.
            
            (b) Binding administrative determinations. Current determinations of line of duty, character of discharge, relationship, dependency, domestic relations questions, homicide, and findings of fact of death or presumptions of death made in accordance with existing instructions, and by application of the same criteria and based on the same facts, by either an Adjudication activity or an Insurance activity are binding one upon the other in the absence of clear and unmistakable error.
            
            (c) Favorable findings. Any finding favorable to the claimant made by either a VA adjudicator, as described in § 3.103(f)(4), or by the Board of Veterans' Appeals, as described in § 20.801(a) of this chapter, is binding on all subsequent agency of original jurisdiction and Board of Veterans' Appeals adjudicators, unless rebutted by evidence that identifies a clear and unmistakable error in the favorable finding. For purposes of this section, a finding means a conclusion either on a question of fact or on an application of law to facts made by an adjudicator concerning the issue(s) under review.
            [29 FR 1462, Jan. 29, 1964, as amended at 29 FR 7547, June 12, 1964; 56 FR 65846, Dec. 19, 1991; 66 FR 21874, May 2, 2001; 84 FR 167, Jan. 18, 2019]
        
        M21-1, Part III, Subpart iv, 5.A.1.c             Definitions: Findings of Fact and Conclusions of Law
            
            Findings of fact are the true facts that a decision maker finds to exist after the analysis of all evidence of record.  Findings of fact are necessary to making the conclusions of law.
            
            Conclusions of law are the ultimate determinations made regarding whether key governing substantive and/or procedural legal requirements defined by the claim are proven.  Every legal conclusion depends on finding certain facts. 

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No, it does not mean that.  With almost every case the Va "weighs" the favorable and unfavorable evidence.  Then they render a decsion.  

With the BVA, the Board must give a reasons and bases as to "why" xx favorable decision was not probative.  Hypothetical example, similar to real examples:

"While the Veterans Doc,  Dr. Smith opined that his condition was at least as likely as not related to service, Dr. Jones opined that it was not related to service.  The Board finds Dr. Jones opinion to be more thorough as he stated that he reviewed the Veterans records, while Dr. Smith did not so state.  Therefore, the board finds Dr. Jones opinion more probative and SC is denied."  

    There are lots of excuses the board can cite for not awarding benefits, they have a whole list they can pick from.  Or, they can state the evidence is "in equipose" and award the benefits.  

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You may not know this, but "findings of fact" are generally not reviewable at the CAVC.  Once the BVA makes a "finding of fact" it practically takes an act of congress to reverse that finding of fact.  However, again, if the board makes a finding of fact, and does not give a reasons and bases as to why (Veteran favorable evidence) was not considered, this can work as a remand to the CAVC as "insufficient reasons and bases" remand, forcing the board to readjuticate and either give a reasons and bases or awarding benefits.  

Now, of course, the Board makes mistakes.  They overlook evidence also.  The board does not have to list a reasons and bases every time a judge goes to the water cooler.  If the favorable evidence is in the evidence list, its assumed it was considered.  

     In my case, my doctor opined in 2015 that I was "homebound".  The VARo decision did not give a reason why this evidence was not considered.  I am in appeals to the BVA arguing that the board must consider this probative evidence, that there is no evidence to the contrary.  The doctor is presumed competent, so my arguement is this must be awarded.  We will see how that goes.  I resubmitted the 2015 exam as "new and relevant evidence" because it was not in the evidence section, so I assumed the rater did not have it.  

     The trouble is, Vets dont know what is in their cfile "in real time" unless they have an attorney or VSO with VBMS access.  Sure we may have a copy of our cfile, but that was likely a year or longer ago, and evidence can be added or subtracted on a daily basis.  

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Just as Bronco stated...I have had several decisions where it list "favorable findings" and still not awarded the disability because the VA puts more weight in their unfavorable findings. You may need to get an IMO (which sadly cost you money to obtain) to submit with an NOD or HLR to establish the disability. If you do go that route make sure that it indicates the doctor has reviewed your medical files, the VA looks for that.

 

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You do need to request a complete copy of your C-File, I  am requesting it for the 3rd time in the last 4 years. The reason being I have had some claims recently closed and I want to make sure the VA looked at everything in my file like they should have. It will take 4 - 6 months to get a copy which is fine with me for the last claim I have pending will be completed by then as well.

"

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I ordered my c-file on Sept 9 but do not expect to get it before I file my supplemental claim next week. 

I did find the following information regarding favorable findings:

If VA finds that the evidence is both competent and credible, then it is favorable to the veteran.  Under the Legacy appeals system, such favorable findings are not binding.  Namely, if the Regional Office makes a favorable finding, the Board can still decide it is not favorable upon its de novo (i.e. new look) review. However, under the new appeals system, favorable findings are binding on the rest of VA going forward.  Therefore, the Board cannot reverse any favorable findings of fact the Regional Office made.

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