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]

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

[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

[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