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.

[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?