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.

[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

[Angela]

Allan,

You're my hero! That's exactly what I've been searching for!

Thank you, Thank you, Thank you!!

[allan]

Thats great news. I was hoping this was it.

[Angela]

Allan,

Have you read CAVC decision no 02-2259 for Padgett v Nicholson (2005)?

It includes a lot of statements about how evidence is supposed to be evaluated and references to other cases that do also.

Here are just a few quotes from that decision...

(flawed methodology in creating medical report renders report of "questionable Probative value") because the VA's doc did not review the claims file and made no mention of in-service right-hip injury. These factors render Dr. Henderson's report of questionable probative value.

"In order for an expert's opinion to be based upon the facts or data of a case, those facts or data must be disclosed to or perceived by the expert prior to rendering and opinion; otherwise the opinion is merely conjecture and of no assistance to the trier of fact"

"Question involving special knowledge requires witness skilled in that area"

"specialist's opinion on medical matter outside his or her specialty to be given little weight"

"probative value of medical opinion evidence is based on medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches"

"the lack of a complete and accurate record, at least to material and relevant facts, certainly undercuts an expert medical opinion's probative value."

and

"opinion based upon an inaccurate factual premise has no probative value"

And on a slight change of subject, here's one more quote from that decision that I think is also very important.

"To the extent that Hicks and other precedent relying on Hersey can be read to support the proposition that a Board finding cannot be clearly erroneous unless the evidence against that finding is uncontroverted, that precedent is overruled unanimously."

Edited July 26, 2008 by Angela

[allan]

Angela,

They simply ignor what they want, do what they want and bury your claim if you complain.