Duty To Assist - Adequacy Of Examination

[allan]

Pond v. West

http://webisys.vetapp.gov/isysquery/irl59e4/1/doc

ISSUE(S): Duty to assist - adequacy of examination;

Reasons and bases - weighing all medical evidence of record

The Board found that the evidence of record was against service connection for the appellant's cervical spine condition. First, the Board found that the service and postservice medical records from 1950 to 1966 did not reference any complaints or treatment relating to a cervical spine injury. The Board found that those contemporary medical records were more probative than the appellant's testimony that he had experienced neck pain after his jeep accident. Second, the BVA rejected Dr. Denton's medical opinion that the appellant's cervical condition had been caused by the in- service jeep accident because Dr. Denton's opinion was (1) based solely on the veteran's history and (2) not supported by diagnostic or clinical findings.

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the BVA's decision must include "a written statement of the Board's findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record." 38 U.S.C. § 7104(d)(1).

[T]he Board must identify those findings it deems crucial to its decision and account for the evidence which it finds to be persuasive or unpersuasive. These decisions must contain clear analysis and succinct but complete explanations.

A bare conclusory statement, without both supporting analysis and explanation, is neither helpful to the veteran, nor "clear enough to permit effective judicial review ", nor in compliance with statutory requirements.

Gilbert, 1 Vet.App. at 57. The BVA cannot reject evidence favorable to the claimant without providing adequate reasons and bases for its decision .

See Meyer v. Brown, 9 Vet.App. 425, 433 (1996). "Moreover, the Board may not rely on its own unsubstantiated medical conclusions to reject expert medical evidence in the record; rather, the Board may reject a claimant's medical evidence only on the basis of other independent medical evidence." Flash v. Brown, 8 Vet.App. 332, 339 (1995 ); see also Thurber v. Brown, 5 Vet.App. 119, 122 (1993); Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991).

"[F]ulfillment of the statutory duty to assist . . . includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Green v. Derwinski, 1 Vet.App. 121, 124 (1991).

ANALYSIS: Inadequate reasons and bases: The Court found that the Board of Veterans Appeals' (BVA) failure to address the opinion of the veteran, who is a medical professional and is therefore competent to provide medical nexus evidence, was error. The Court noted that this does not mean that the BVA cannot consider the personal interest the appellant-expert has in his own case, but the BVA is not free to ignore his opinion.

Duty to assist: The Court noted that twice VA requested medial examinations to discuss the etiology of the veteran's cervical spine disorder, and in both instances the medical examiners completely ignored those instructions. Since the veteran had submitted a well-grounded claim for a cervical spine disability, he is entitled to a thorough and contemporaneous medical examination that discusses the etiology of his cervical condition.

IMPACT ON DECISIONMAKERS: All decisionmakers should bear in mind that if a medical opinion is requested regarding the etiology of a disability, the medical examination report is inadequate if it does not give that opinion. All such reports should be returned to the medical professional to give the requested opinion. In addition, all evidence should be evaluated and weighed when the record is reviewed, including that of a claimant who is a medical professional and complete reasons should be given for any evidence which is not weighed favorably or found credible.

RECOMMENDED VBA ACTION(S): This is a good case for training on adequacy of examinations and on weighing evidence.

[Berta]

Great find Allan!

A veteran with a lousy C & P report should do all they can to challenge the C & P -medically- with medical evidence and also challenge as to how inappropriate the report was prepared.

When they say the Board they mean the VA- whether at BVA or RO level-

the regs are the same at RO and the BVA.

There has been considerable discussion here- all of it excellent as to what an independent medical opinion must contain-

these guidelines are no different from the VA guidelines on C & Ps.

All need a full medical rationale, and all need reference to the veterans records.

All need a nexus statement that is also supported either by presumption or by the veteran's SMRs or buddy statements.

If a VA opinion fails to adhere to the same guidelines for an independent medical opinion- the C & P report can be challenged.

I challenged a C & P with success when I was an eye witness to fact that the C & P doctor didnt have the veteran's med recs-

I could here them scurrying around while the vet was with the C & P doc-looking all over for the records-

I immediately challenged this C & P the next day-I called the doctor about it and sent the VA a letter about what happened.

The VA sent the vet a denial-based on this exam. The doctor had told me he had already sent his report to the RO-the denial came very quickly based solely on this C & P and I stated my eye witness account as testimony in the NOD with reference to other evidence the RO had failed to consider.

The claim was awarded a few months later.

Edited March 4, 2007 by Berta

[Berta]

There is also enhanced evedentiary procedures when a vet has a DRO review or informal DRO conference.

(from:http://209.85.165.104/search?q=cache:3nC0w-mgkZoJ:www.warms.vba.va.gov/admin21/m21_1/mr/part1/ch05/ch05_secc.doc+M21-1,+Part+IV+Decision fficer&hl=en&ct=clnk&cd=1&gl=us&ie=UTF-8"

"Stage Description

1 The appellant elects the DRO review process.

2 The DRO conducts a de novo review of the prior decision.

Reference: For more information on de novo review, see M21-1MR, Part I, 5.C.13.

3 Based on a review of the evidence of record, is there enough evidence to make a new decision?

If yes, the DRO makes a new decision.

If no, the DRO

pursues additional evidence considered necessary to resolve the claim, and/or

conducts an informal conference to obtain additional evidence from the appellant and his/her representative.

4 Based on evidence gathered, the DRO

upholds or overturns the original decision

works with the appellant and his/her representative to

focus the issue, and

fully explain the decision in an effort to resolve the appellant’s disagreement, and

begins to prepare the appeal for BVA review by sending an SOC, unless there is a full grant of benefits.

Reference: For more information on sending an SOC, see M21-1MR, Part I, 5.D.

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Review of "evidence of record" etc etc-

which includes all evidence -C & P reports, IMOs, med recs etc etc etc-

as described in 38 CFR 4.3 and 4.6

'b. Purpose of an Informal Conference The purpose of an informal conference is to

clarify the issues the appellant wishes to appeal

provide explanations, and

identify additional sources of pertinent information"

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However if your rep at this type of conference does not clarify and present your evidence or at least makes sure the DRO considers it and it suddenly disappears-

you are screwed because the VARO cannot make a proper decision without all of the "evidence of record."

I know you are all probably bored with my problem- thats OK !-I am too- tomorrow I will have to get tough- I just dont have time to play games anymore-

I got ahead of my science homework by a full week to instead devote this coming week to my claim issues.

Oddly enough if I had gotten a proper VCAA letter it would have stated that I needed to get an IMO-

the BVA has remanded widows claims due to this exact same violation-

thus a IMO from a widow has as much merit as any other IMO.

It was my POA who took it upon themselves to reject my 2004 IMOs-NOT the VARO.

VA has never seen the 2004 IMOs.

I am sure the additional 2006 one is there because the BVA had sent it on remand.

The state vets division employs no medical personnel or VA raters or DROs-

they have no authority whatsoever to reject any widow or veterans IMOs and to make sure the VA never sees them.

I really think it is NY state who owes me money-not the VA.

Based on the reply I get tomorrow from my vet rep-

I am preparing a complaint to the Governor today because when the rep sent email assuring me he "wasn't playing games with me", the documentation I have from him shows that he was.

Maybe he will redeem himself -dont know yet-

I have asked a simple question of him since Dec and you would all be surprised at his emails---

well maybe not---

There is a point here- not money- I dont want my money back-

I am just sick and tired and fed up with these socalled vet reps who dont know what they are doing and can prevent a proper decision by their interference and negligence.Not to mention their lack of knowledge on basic VA 101 case law and regs.

What gets me is that I even donated the VBM to my reps and they apparently cannot even read it.