Claims Evidence

[Ricky]

"The Board has thoroughly reviewed all the evidence in the

veteran's claim folders. Although the Board has an

obligation to provide reasons and bases supporting this

decision, there is no need to discuss, in detail, all of the

evidence submitted by the veteran or on her behalf. See

Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)

(the Board must review the entire record, but does not have

to discuss each piece of evidence). The analysis below

focuses on the most salient and relevant evidence and on what

this evidence shows, or fails to show, on the claims. The

veteran must not assume that the Board has overlooked pieces

of evidence that are not explicitly discussed herein. See

Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law

requires only that the Board address its reasons for

rejecting evidence favorable to the veteran)."

I have searched high and low for both the Timberlake case and where the law requires only that the board address its reasons for rejecting evidence favorable to the veteran. Does anyone have any ideas? Also when it says the "Board" does that mean the VARO also? I think I read on Hadit before that a reference to the board also means VARO.

Thanks

[c398x2]

Timberlake v. Gober, 14 Vet. App. 122 (2000)

http://www.va.gov/vetapp02/files02/0205332.txt

Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)

http://www.va.gov/vetapp03/Files/0320450.txt

[Berta]

The Board (BVA) the Secretary, the VA, the VARO- all basically the same thing when it comes to the regs-

the regs in 38 CFR are the controlling force for them all-

38 CFR 4.6 in part states: (Book C Part 4)

"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. "

Vike made a post some time ago that I saved in Word- he said it so well:

"A prepondeance of evidence is not needed to be awarded a claim. Evidence only need to be in "equipose", which means 50/50 for the veteran. A preponderance of evidence is 51% or more of evidence which is for or against the veteran. The VA needs a prepondeance of evidence to deny a claim, not to award one. You can continue to submit evidence so the evidence is in preponderance for your claim, but it is not needed."

I have told VA that I have offered a "preponderance" of evidence for my claim-

to prove misdiagnosed DMII and that this caused Rod's Sec 1151 heart disease, strokes, and death because of the FTCA award and the fact that VA admitted that "ALL" the veteran's disabilities were misdianosed leading to his death.It took me years to know what ALL those disabilities were-

when my daughter insisted I file the DMII AO claim- suddenly the medical records revealed what I did not focus on in 1995-DMII- undiagnosed and untreated-

As a preponderance I sent 22 submissions of medical evidence in the med recs proving this and to date 3 Independent medical opinions that also agree-

this is a prepoderance-well beyond relative equipoise-as Vike stated- 50-50.

Is there some way the VA has stated a preponderance of evidence is against your claim?

They dont really need to read all evidence even though the regs say they should-

it seems to me - if I was a rater- I would weigh only the most probative evidence for and against a claim to support my decision.

I have sent a lot because in the 1990s a lot of what I sent disappeared-even if they only pick out one or two submissions, they will see evidence to award-

as it stands the VA has only considered one brief statement I made regarding medical symbols in the recs- that denotes diabetes-they said I was wrong -it was the only evidence from me they have acknowledged-in 4 years-and I reminded them I use Medilexicon to understand medical symbols and this is how I won an FTCA settlement for wrongful death when I figured out what RO/CAD meant.

Most vets and other claimants sure do not need a preponderance- but if the VARO has it in form of evidence against the claim-they will continue to deny.

[Ricky]

Berta, my question centers around a SOC that was issued to me. In the claim, the C&P supported the claim along with IMO's. There was no negative evidence available in the claims file. However, the claim was denied and when the SOC was issued they simply stated "there was no active process present during the recent exam." There was no discussion of any evidence what so ever. In effect the SOC provided no basis for my appeal. In other words the only viable attack for the appeal was the fact that I did not have any ideal why the claim was denied. The claim was on my Jan 2005 stroke (CFR 38 provides a 100 percent rating for six months following a stroke). The C&P was in July 2005 so yep there would be "no active process" in July 05 since most strokes last somewhere between a few mins to a couple of hours. The way the SOC was written the rater wanted to see evidence of the stroke still occurring which would have been impossible. Evidence submitted was the MRI with the reading, IMO's from my neurologist' and treating Doc. The C&P started out "a review of the medical evidence provides that in Jan 2005 the patient suffered a right sided stroke within the thalamus". They service connected the stroke secondary to my DMII and hypertension but only rated it as 10 percent and not the required 100 percent for six months. The 10 percent was based on my residuals. Even this was not rated appropriately as the residuals effect my left face, left upper and left lower extermities. The C&P provided that they existed but did not discuss their level or effect on me. I have two IMO's from treating and secondary Neurologist they have caused loss of taste, loss of use of foot and hand coupled with constant level ten type pain. So not only did they rate the residuals low, they did not even properly rate them as they should have rated the face, upper and lower seperately. Anyway the problem is that the rating nor the SOC contained any discussion of the positive evidence in the file and why it was not accepted, nor did it discuss any evidence held by the VA that was negative to the rating. Thanks

[rdawg]

they completely ignore medical evidence if it does not state that the Dr. reviewed the service medical records (even if the SMR's actually support what the Dr. is saying).

[Ricky]

rdawg - the stroke was SC'ed so there was no need to review the SMR's (the stroke happened post service and was SC'ed secondary to already SC'ed DMII and Hypertension). The problem here is they simply ingnored the medical evidence from treating doc's and C&P doc's concerning the date of the stroke and the body systems that were affected by the stroke (residuals). The one doc that issued one IMO has been my treating doc for over 10 years now both on active duty and during retirement so they SC'ed the stroke and residuals to my already SC'ed DMII and hypertension. This in itself indicates they had the evidence but only used part of it to award the claim. That is easy enough to appeal, however, my beef is since they did not discuss any of the evidence in the rating or SOC I do not know how they came to the conclusion that "there was no evidence of an active process or disease". After I received the rating with this in it, my neuro, treating doc, radiologist who interpeted the MRI, and hospital doctors issued IMO's outlining how they determined the time line for the stroke and the medical community's accepted theory of the occurance of strokes which confirmed their claims. The neuro and my regular doc also provided their medically accepted opinon (per dorland's and other accepted medical authorities) on the effect of the residuals on my face, hand, arm, leg and foot. However, the SOC simply stated "denial continued due to the lack of an active process or disease". The only assumption that could be made is that they wanted me to be having an active stroke during the C&P. CFR 38 states "rate disabilities under 1008 for six months - 100 percent. It does not state that the stroke had to happen within the last 24 hours or the last 6 years. Now being a common sense kind of guy I would understand the rating if my stroke had happened 6 years prior to my claim however, my stroke was in Jan 2005 and the claim was filed for me in Feb 05. I believe it was the intent of congress and CFR 30 to provide the 100 percent rating for an individual during the first six months after a stroke as the first 6 months is the most crucial time frame (no work, learning to walk, speak, think etc.... again). However, ratings such as mine simply make the regulation and law worthless. Not only did they fail to provide the proper compenstation the first 6 months after my stroke, here I am 2 years later still trying to get the authorized 6 months worth of compenstation along with a proper rating on the residuals of the stroke.

Edited January 29, 2007 by Ricky

[LarryJ]

Well, I'm in no sense of the word an "expert" in any of this. Nor am I one to holler "fire" when there is nothing but some smoke.

But, this sure seems like a "Clear, Unmistakable, Error" on their part.