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Nexus letter and evidence


SPO
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Question

Thanks to all of you for answering all my questions, but I have yet another one.   I was told by DAV when I have my doctor write my new nexus letter he should quote medical information sources to support it, which is correct.  However, DAV also said that you should not quote BVA decisions anywhere in the claim, to include the nexus letter.  I feel like this is probably not true, since a BVA decisions are basically case law, and there are plenty of previous decision that would support my claim.  Am I correct?

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1 hour ago, SPO said:

Thanks to all of you for answering all my questions, but I have yet another one.   I was told by DAV when I have my doctor write my new nexus letter he should quote medical information sources to support it, which is correct.  However, DAV also said that you should not quote BVA decisions anywhere in the claim, to include the nexus letter.  I feel like this is probably not true, since a BVA decisions are basically case law, and there are plenty of previous decision that would support my claim.  Am I correct?

I don't think I would ask to include BVA decisions/information in the Nexus. A thorough Nexus should cover any timelines and discrepancies.

The Nexus mainly focuses on the injuries, their timeline, and how it relates to your service, regardless of VA outcomes from the RO on up to the Supreme Court.

While you "can" include that information, they already are able to review the previous decisions, and see where they erred on the basis of your new Nexus.

Edited by awgv001
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You are right about the first one.  The second one is doubtful, BVA decisions are looked at as non binding decisions, unlike Court of Veterans Appeals cases which are binding and precedence.  You can include BVA decisions where they are most like yours.  I did this once in an appeal and it did me no good.  What is most important is what your doctor writes in your nexus letter as far as medical precedence.  Medical reports in publications are peer reviewed and carry weight.  

What I would get out of BVA decisions like yours are the COVA references that might apply to your case.  Case in point is where a veteran is appealing an EED for SMC.  He would cite the reference where the VA is supposed to give the veteran maximum benefit.  "Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008)."

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IMHO, the main thing in an IMO/EMO is that the physician include that he/she has reviewed your service medical records and your current treatment records and it is their medical opinion that they are related and the give a good medical rationale. The rationale can include any medical research or studies that link the conditions as least likely as not 50/50 related to your military service.

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On 3/21/2020 at 4:34 PM, pete992 said:

IMHO, the main thing in an IMO/EMO is that the physician include that he/she has reviewed your service medical records and your current treatment records and it is their medical opinion that they are related and the give a good medical rationale. The rationale can include any medical research or studies that link the conditions as least likely as not 50/50 related to your military service.

I do agree with you Pete992. Sometimes this works but other times, it does not. Depends who is reviewing your claim. I have done what you just stated and got denied. I did have my personal Doc evaluate me, did a dbq and also reviewed my c-file. VA denied it saying that my Doc did not review my SMR. Just depends. All I must say, don't ever give up. Try everything that you can but don't give up and big rewards will come.

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This may help:

1.  All US Supreme Court cases are precedential.  So are Federal Circuit cases.  

2.  CAVC cases can be either precedential or non precedent setting.  "En Banc" and "Panel" decisions are precedential, while Single judge CAVC cases are not.  

3.  All BVA cases are "non precedential".  

     My opinion is to use BVA cases to see what other BVA judges have done, BUT, that BVA decision you are reading may well cite a "precendial" case for its decison.  So, you can, likewise, cite the precedential case the BVA decision cited.  

     But if you cite another BVA decision, you take the chance that the decision maker in your case can reject your arguement based upon the case you cited is not precedent setting.  Berta has mentioned she successfully cited other BVA cases, but there is that risk.  

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I once had a C&P Examiner   take my C-FILE TO HIS HOME AND HE COMBE THROUGH MY COMPLETE C-FILE  NOT JUST THE MATTER OR CLAIM AT HAND BUT HE DELVE BACK TO MY SEPERATION  SOME 25 YEARS BACK.

HAD I KNOWN AT THE TIME THESE EXAMINCER ARE NOT ALLOWED TO TAKE OUR COMPETE C-FILE HOME WITH THEM  AWAY FROM THE VAMC BUT ONLY THE RECORDS THE VA SENDS THEM ABOUT WHAT YOUR CLAIMING.

Edited by Buck52
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2 hours ago, AllTheWay said:

I do agree with you Pete992. Sometimes this works but other times, it does not. Depends who is reviewing your claim. I have done what you just stated and got denied. I did have my personal Doc evaluate me, did a dbq and also reviewed my c-file. VA denied it saying that my Doc did not review my SMR. Just depends. All I must say, don't ever give up. Try everything that you can but don't give up and big rewards will come.

Don't forget that we are talking about VA and even with all this VA will do what they will do to discourage a veteran. There are times when a veteran can have all the evidence he/she need for VA to grant their claims but VA will still deny their claims. We never know the day to day what happens with raters, if someone ran over their dog, if they are going through a divorce, if someone scratched their new car, if another veteran cursed them the day before. The local office is very veteran non-friendly.

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