2.07 Evaluation Of Evidence

[allan]

M21-1-6 Rating Board Procedure

2.07 EVALUATION OF EVIDENCE

The rating specialist has responsibility to recognize the need for evidence in relation to a claim. The members have responsibility to determine admissibility of and the weight to be afforded evidence that is presented, the need for additional evidence, and the need for physical examination. If all the evidence is favorable, the claim must be granted. (See Beaty v. Brown, 6 Vet. App. 532 (1994).)

a. Probative Value. The rating specialist will determine the probative value of medical or lay testimony. Accept evidence at face value unless contradicted by other evidence or sound medical or legal principles. In the presence of questionable or conflicting evidence, further development may be needed to corroborate testimony to include, if in order, field examinations and/or social surveys to obtain transcripts of original or other appropriate records. Rating decisions must clearly explain why evidence is found to be persuasive or unpersuasive. Decisions must address all the evidence and all of the claimant's contentions.

b. Medical Opinions. Medical conclusions must be supported by evidence in the file. Rating specialists cannot refute with their own unsubstantiated medical conclusions medical evidence submitted by the claimant. Recognized medical treatises or an independent medical opinion may be cited to support a conclusion. Such evidence, when relied upon, must be identified in the decision.

[Angela]

Allan,

Is your quote from the M21-1 or the new M21-1MR?

There are a few pages from the M21-1 in effect Jan 03 that I've been trying to get hold of but have been deleted from the VA's WARMS. They deal with writing the decision ... RO must discuss all evidence and relate it to diagnostic criteria... Can you help?

[sixthscents]

They (raters) SO ignore this.. and a grey area the size or Texas anyway.... they need to get specific on how they handle evidence and rate its "probitity" what level they give to 'lay' evidence specifically as well as a general practitioner vs. a specialist as well as conflicting testimony, with the option that if the vateran is required to submit to a second C&P, an equal value would be assigned to the opinion given by an IMO, as long as similar credentials were help and if it was then submitted by the veteran......

never happen though... never...

Bob Smith

[carlie]

Angela,

You will probably find what you'r looking for in here.

http://www.warms.vba.va.gov/admin21/m21_1/...5/ch05_secd.doc

Good luck, let me know if you need more help.

carlie

[carlie]

Angela,

You posted,

"They deal with writing the decision ... RO must discuss all evidence and relate it to diagnostic criteria "

Might this be what your looking for -- I hope so. - carlie

Assigning Disability Evaluations Use the guidelines listed below when assigning a disability evaluation.

· Explain how the evidence in the case relates to the disability criteria for the evaluation assigned. Do not simply list the criteria for the evaluation. For example, when assigning a 30 percent evaluation to a knee disability state "You meet the criteria for a 30 percent evaluation because at your examination, severe instability was found in your left knee," rather than "Thirty percent is assigned because your disability meets the above criteria."

· If a higher evaluation is possible under a particular diagnostic code (DC), discuss the criteria for the next higher evaluation.

· If the reason the veteran does not meet the requirements for the next higher evaluation is not readily apparent, be sure to explain why.

· If the disability can be evaluated under more than one diagnostic code, discuss the reasons why the particular diagnostic code was chosen.

· Confine the explanation of the criteria for the assigned and next higher evaluations to the diagnostic code under which the disability is evaluated.

· In the case of hearing loss or visual impairment, a general statement such as "higher evaluations are assigned for greater loss of hearing (or vision)" will be sufficient.

http://www.warms.vba.va.gov/admin21/m21_1/...6/ch06_secc.doc

Edited April 20, 2007 by carlie (see edit history)

[Ricky]

Angela - Six is dead on with this issue.

The facts are:

-M21 was pretty specific on how to evaluate the evidence and how the reasons and bases was to be written. That has been superceeded by the new M21-R. M21-R is very gernic and give no specific guidance. It simply says you should weigh the evidence to determine if it is probative and if it is use it in the rating decision.

-The court says: (in summary) the reasons and bases will discuss all probative evidence,.........in a way which will allow the appealant to appeal and the court to make a ruling (remember this is my summary do a search on reasons and bases at the courts site).

My opinion is:

-If you get a generic rating that does not discuss you evidence then you MUST first attack the issue and establish that your evidence you submitted was probative to your claim. I did this by arguing that all of my medical evidence was---a discussion specifically on my medical conditions in which I sought a disability rating; It was from my TREATING doctors, one a neurologist with over 35 years experience, one my PCP who had treated me for over 17 years and two VA examiners at the VA C&P. This showed and I think the board and court would agree that the evidence was specific to the claims at hand and both doctors had provided personal care for my conditions for a number of years. It was NOT evidence that I had obtained from a foot doctor or GP who had never seen me except for the one time which they based their opinion on. Now I am not saying that a veteran who obtains a medical opinion from someone other than their treating doctors is not doing the right thing but my arguments definitely focused the evidence on my claim and left them with no way to say that it was not probative. This will/should cause one of two things:

-They reference the evidence in the rating as a basis for the granting of your claim.

-or the reference it because they did not consider it probative or they use other medical evidence to out weigh yours in a denial.

In the later this at least provides you with what you face as you climb the hill and is the fair thing to do. However, as Six said they seldom if at any time do this. However, if you have a statement with arguments on the probativeness of your evidence you stand a very good chance at the BVA.

Sorry to be so long but I think this is what you are looking for.

Edited April 20, 2007 by Ricky (see edit history)

[Berta]

I think this is from M21-1 Part VI, Sept 23,2004 , Change 118.

However I have been using the actual laws in Title 38 USC:

§4.3 Resolution of reasonable doubt.

It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. See §3.102 of this chapter.

[40 F R 42535, Sept. 15, 1975]

§4.6 Evaluation of evidence.

The element of the weight to be accorded the character of the veteran’s service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. 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.

These laws and the subsequent regs were broken when the VA disregarded all of my medical evidence.I have told vets to send the VA these regs when they ignore their evidence.

Also- I need to add- when Dr. Bash prepared his 2nd IMO- he had the VA "expert's" opinion to knock down.

He gave 5 solid reasons why the VA opinion was in his words 'medically inaccurate"

But he also stated that the VA examiner had not supported her opinion with "any literature" among other things.Nor had she provided her CV as he had done.

As you can see in M21-1 the VA can use medical treatises to support their opinion---yet all medical literature in the form of treatises that I used were listed as "internet printouts" and never considered at all.

Therefore the VA would consider treatises and abstracts as Probative- but only if their doctor's use them- this double standard

harms many claimants who cannot afford a costly IMO from a real doctor yet who provide the VA with medical studies or abstracts that support their claim.

If a veteran can associate sound medical literature to their specific claim -the VA has no right to disregard this as evidence.

I even sent them autopsied heart photo and associated specific cardiological manifestations of Rod's heart autopsy with diabetic heart disease.

I did this regarding his brain traumas too.

This was the same type of medical work I did in order to prove to VA they killed him-10 years ago- and I proved that yet these days the same type of evidence os listed a "internet printouts" and ignored.

These double standards have to change.

I didn't quite understand Dr. Bashs points as to asking for the VA doctor to provide literature and a CV in support of her opinion at the time-since his IMO was so thorough.

But now I do- he knows 38 CFR and M21-1 and is calling on the VA in his opinion to come up with some medical Rationale that could possibly knock down his IMOs.

He used the ADA info as well as 2 other treatises in support of his IMO and his 9 page CV and other info in the IMO as to his expertise show his rationale is sound.

This gets back to the regs-

If a vet sends a medical treatise in support of their claim they have to clearly associate the medical info to their specific diability.

The VA according to the regs has no right to disregard it if it is probative to the claim.

Years ago a Korean vets widow had a long term battle with the VA for SC death. Her husband died to a very rare type of cancer. She attributed this cancer to the locale in Korea he was stationed in.This was not an AO issue and the claim looked like there was little chance of success.

The BVA found that-in the c file-the widow had sent VARO an article from a medical book showing that this rare type of cancer had affected a small population of Koreans in the same local that the vet was in.

Whatever the etiology was for the cancer (contaminated ground water ? I dont know)

in any event-this article-disregarded by the RO and ignored- was accepted by the BVA and they awarded DIC under BOD regs.

yet

[allan]

Hello Angela,

This is where I think I found it,

Allan

September 12, 2002 M21-1, Part VI

Change 92

CHAPTER 2. RATING ACTIVITY--GENERAL

2.07 EVALUATION OF EVIDENCE

The rating specialist has responsibility to recognize the need for evidence in relation to a claim. The members have responsibility to determine admissibility of and the weight to be afforded evidence that is presented, the need for additional evidence, and the need for physical examination. If all the evidence is favorable, the claim must be granted. (See Beaty v. Brown, 6 Vet. App. 532 (1994).)

a. Probative Value. The rating specialist will determine the probative value of medical or lay testimony. Accept evidence at face value unless contradicted by other evidence or sound medical or legal principles. In the presence of questionable or conflicting evidence, further development may be needed to corroborate testimony to include, if in order, field examinations and/or social surveys to obtain transcripts of original or other appropriate records. Rating decisions must clearly explain why evidence is found to be persuasive or unpersuasive. Decisions must address all the evidence and all of the claimant's contentions.

b. Medical Opinions. Medical conclusions must be supported by evidence in the file. Rating specialists cannot refute with their own unsubstantiated medical conclusions medical evidence submitted by the claimant. Recognized medical treatises or an independent medical opinion may be cited to support a conclusion. Such evidence, when relied upon, must be identified in the decision.

http://www.warms.vba.va.gov/Admin21/M21_1/PART6/CH02.DOC

[john999]

Allan

You know the rules and regulations favor the vet, but getting them to obey their own rules is the killer. Most vets who are not severely disabled just can't wait two years or more for an increase so they just walk away. If you are 100% you have no choice but to wait on the VA. I think the delays and bogus ratings are part of the plan to discourage vets from getting the ratings they deserve. Insurance companies do it all the time. We have met the enemy and it is us.

[allan]

>If you are 100% you have no choice but to wait on the VA. I think the delays and bogus ratings are part of the plan to discourage vets from getting the ratings they deserve.

It should be illegal John.

[Angela]

Thank you all for the information! It have made for some very interesting reading. I agree, the regulations clearly favor the vet, it's the ROs who can't read that keep tripping us up.

I've read in several CAVC decisions when instructions in the M21-1 narrowly prescribe RO actions those instructions confer rights on the veterans that have the force of law. So, I was looking for two specific sentences in M21-1. Both were in M21-1 Part VI. One read "RO must cite and evaluate all evidence that is relevant and address all pertinent evidence". The other said "do not quote at length from medical records" and to "include a statement of findings from most recent medical evaluation" when it gave specific instructions on how to write the decisions.

I was interested in them because the RO didn't address my most recent medical evaluation at all. The entire (paragraphs long) decision was copied almost word for word from an old MEB summary instead. That might not have been a problem but the MEB (written by a General Practitioner)included surgical assumptions that the most recent medical evaluation (by my surgeon) showed were wrong.

I'm not very good with words, but I thought I might somehow get across to them that (1)since they were required to mention the latest exam results but didn't, they obviously didn't consider them and (2) if they'd read the lastest exam record they'd have made the correct decision... Clear and Unmistakable Error that even the RO's should be able to see.

[allan]

Welcome back Angela.

I hope your CUE works out for you soon.

[Angela]

Thanks Allan,

It's good to be back. I'm lost without a computer!

My appeal was certified for appeal to the BVA in Nov 07. So how long do you suppose I'll have to wait for their decision? 3 to 5 years?

[allan]

My appeal was sent to the BVA in "1998", so I may not be the one to provide a + answer.

Allan

[Berta]

Now I am REALLY confused-

if your claim is at the BVA Angela- thanks to the ROs it might be 2 years before they get to it or or even longer.

And then it could be remanded.

I was at the BVA for my present claim for a few weeks,then remanded for expeditious treatment,as it should not have been there at all- and that was 2 years ago next month and no resolve yet.

BUT- if the claim is at the BVA still in the appellate process- there can be no CUE filed on it.

Did you file a CUE on a past decision that was denied and for which the appeal period ran out?

Cues require

1. final and unappealed decision of the VA (or BVA)

2. clear and unmistakable legal error in the past final decision.

3. the CUE must have manifestly altered the outcome-meaning- without the CUE the VA would have owed retro.

If the decision was from the RO and never appealed-the CUE claim must be filed at the RO.

If the BVA made the CUE, the CUE claim must be filed with the BVA.

Example. I had a CUE claim which was denied at the VA and the BVA many years ago.

I suffered from an ilusion in those days because I started to believe that the VA must be right-after all this was the VA-a federal entity employing brillant and literate people-

yeah right

A few years ago the Regional COunsel discovered the CUE claim when I re-opened my SC death claim (he had to check my statements in the re-opened claim as I referred to the DIC 1151 award I got in it because VA had caused my husband's death)and he awarded me the CUE and $40,000 thousand clams.

To think the VA almost kept my money because I did not appeal the CUE any further and believed they were probably correct.

I have never assumed since that the VA is correct unless I like what they say

or send.

Edited July 21, 2008 by Berta (see edit history)

[john999]

So, Allen and Berta, if the VA does not address all the evidence is that a CUE according to M-21? Allen, your first post says the VA must address all the evidence in a claim. I see you are quoting the M-21. This is the rater's bible from what I understand.

[Ricky]

So, Allen and Berta, if the VA does not address all the evidence is that a CUE according to M-21? Allen, your first post says the VA must address all the evidence in a claim. I see you are quoting the M-21. This is the rater's bible from what I understand.

John my opinion would be no. When you see things in the M21 which is VA's internal document used to implement CFR 38 which is a congress approved federal regulation of VA interpertation of USC 38 such as:

-The members have responsibility to determine admissibility of and the weight to be afforded evidence that is presented.

-Probative Value. The rating specialist will determine the probative value of medical or lay testimony. b. Medical Opinions. Medical conclusions must be supported by evidence in the file. Rating specialists cannot refute with their own unsubstantiated medical conclusions medical evidence submitted by the claimant. Recognized medical treatises or an independent medical opinion may be cited to support a conclusion. Such evidence, when relied upon, must be identified in the decision.

They just gave themselves an out.

-They have the responsibility to determine......... the common answer I have seen to questions on this one is the rater determined that the veterans medical opinion did not carry the same weight as the C&P exam so it was not used in the decision!!!!! Therefore if not used then no need to list it.

-The rating specialist will determine the probative value of medical or lay testimony - man oh man is this a good one. Mr. non-medical trained lay person is charged with determining the probative value of an imo issued by a heart doc or a neurologist!!!!!!! what a laugh. Any attempt to use a cue to bring this out is simply met with the rater felt that the IMO was non probative cause of XXXXXXXXXX. Thats it! It may be determined 8 years later he was wrong maybe but no legal cure is available. Since he/she determined that no probative value was present then it does not have to be explained in the decision so to a veteran it appears that the evidence was not used.

This is the best disability sytem in the world - it will give you scooters, schooling for you, your spouse and your children - however, to enter the door one must get by a simple lay person who has less knowledge than you do but he/she has 10 to the 10th power more umph under the US law than you do. And its all legal, right there in front of your face. Even if they really do miss it all they gota do is say yep I saw it but did not use it cause I just did not put much weight on it. Oh, I am sorry I see what you mean now mr. bva guy, yes it was written by a neurologist who treated the guy for 15 years and the va evidence I used was issued by a student family doc in his last year of school - my bad now yall fix it. Thats it - this may be a simple example but one that is played out time after time in the claims process.

[allan]

John,

I searched for an hour but could nor find the link. It was a direct cut and pasr from the m-21 manual.

Came across this in my search though.

Does it answer the question......So, Allen and Berta, if the VA does not address all the evidence is that a CUE according to M-21?

§20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not.

(a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.

( Record to be reviewed.

(1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made.

(2) Special rule for Board decisions issued on or after July 21, 1992. For a Board decision issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record.

© Errors that constitute clear and unmistakable error. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable.

(d) Examples of situations that are not clear and unmistakable error.

(1) Changed diagnosis. A new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision.

(2) Duty to assist. The Secretary's failure to fulfill the duty to assist.

(3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.

(e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation. (Authority: 38 U.S.C. 501(a), 7111)

http://www.warms.vba.va.gov/regs/38CFR/BOO...20/S20_1403.DOC

Edited July 22, 2008 by allan (see edit history)

[Angela]

Sorry I confused you Berta,

My original decision was dated Jan 2003, and became final Jan 2004. Filed CUE claim in 2006 due to (1)evidence not considered that (2) compelled a 100% rating. RO denied, stating simply that the evidence was considered and did not compel 100% rating. Since I disagree on both counts, I appealed to the BVA.

Concerning the first part of the CUE - Was evidence not considered (overlooked)?

I've shown that ROs statement's prove that my most recent medical evaluation was not considered in the original decision. Specifically, the RO's concluded the reasons for decision with the statement "all surgical options have been exhausted", despite surgeon's statement (in the record of my most recent medical evaluation, that the RO overlooked) that additional surgery was a remaining option. If the RO had simply omitted the statement about surgery I might not be able to prove (clearly and undebatably) that the record was not considered, but I believe even the VA will have to concede that the ROs statement of "the facts as they were known at the time" was inaccurate and the most recent examination was not considered.

And the second part, would consideration of the "overlooked" evidence (whether alone or in combination with other evidence of record) compel the 100% rating?

Yes. Although the diagnostic code's rating criteria is a model of ambiguity, the BVA published a decision (made prior to my original rating decision) that provided their interpretation and application of the rating criteria. Under that publicly available agency interpretation, the evidence in my case would have compelled the 100% rating. Also, the ROs statement of my condition (when denying the CUE) reflected exactly the interpretation that the BVA had provided for the 100% rating. And, according to my research, "deference is afforded to an agency's interpretation of its own regulations even when that interpretation is offered in informal rulings" and "board decisions, publicly available through the boards internet decision database, expressing interpretations of regulations give notice to the public and are "entitled to deference".

I believe I have an excellent case already, and should eventually win. Even if I couldn't show that evidence wasn't considered, my record would compel the 100% rating. But it seems that most people get a reevaluation and then file CUE stating that their condition was the same during previous adjudication. Maybe I should have done so too. But, as I see it, that's still an option if this doesn't work.

Anyway, the previous version of the M21-1 had instructions that I think makes my argument even stronger. Unfortunately, I failed to print out the reference when I found it (probably at least 2 years ago now) and the BVA has removed the body of the older M21-1 from their web site. Now all that shows up is "RESCINDED". It was M21-1 Part VI 3.13c1 and read, "the next entry in the paragraph should be the findings from the current exam or". But I can't find out what followed "or" in the sentence. If anyone has the complete text I'd really appreciate it.

Berta, I can't thank you enough for all your help. I couldn't have gotten this far without all you and all the other HADIT members educating me. I'd appreciate any thoughts you have on my case.

Edited July 23, 2008 by Angela (see edit history)

[john999]

If all evidence in a claim is not considered or at least referenced how can you have due process?

[allan]

M21-1 Part VI 3.13 c (1) search

3.13 REASONS FOR DECISION

a. General. Support conclusions with the necessary level of analysis and explanation. For example, where service-connection is being granted, explain why it is being granted, why a particular evaluation is being assigned, and why the particular effective date is being selected. Only cite facts which are pertinent to the decision. Reasons and bases paragraphs containing only conclusory statements such as, “The evidence does not warrant any change in the prior evaluation” are inadequate without an analysis of the credibility and value of the evidence considered. See Training Letter 02-02 dated June 19, 2002.

b. Review of Evidence. Concisely cite and evaluate all evidence that is relevant and necessary to the determination. Rating decisions must evaluate all the evidence, including oral testimony given under oath and certified statements submitted by claimants, and must clearly explain why that evidence is

found to be persuasive or unpersuasive. Decisions must address all pertinent evidence and all of the claimant's contentions. Do not quote at length from letters, affidavits, hospital reports, etc.

c. Next Higher Evaluations. When assigning a disability evaluation, if a higher evaluation is possible under a particular diagnostic code, discuss the criteria for the next higher evaluation. If the reason the veteran does not meet the requirements for the next higher evaluation is not readily apparent, be sure to explain why. Confine the explanation of the criteria for the assigned and next higher evaluations to the diagnostic code under which the disability is evaluated. In the case of hearing loss or visual impairment, a general statement such as “higher evaluations are assigned for greater loss of hearing (or vision)” will be sufficient.

(1) If service connection is granted, do not relate all the details of treatment in service. A simple statement that the enlistment exam was negative and that beginning on a particular date prior to separation the veteran was treated for whatever condition was diagnosed is usually sufficient. The next entry in the paragraph should be the findings from the current exam or a citation of whatever evidence is necessary to establish chronicity and continuity. If the cause of several claimed disabilities is the same, such as one accident, information concerning the origin need only be discussed in detail once in the reasons and bases paragraph for the first disability of common origin.

http://www.warms.vba.va.gov/admin21/m21_1/part6/chg100.doc