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

[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

[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