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]

Unfortunately true. ;)

[Angela]

Yes Ricky & Carlie,

This is exactly what I'm looking for.

Concerning the M21-1 (before the rewrite), the reason I was looking for it instead of the new one is because the decision I'm attacking (via CUE) was final before the rewrite, so the VA was still (supposedly) operating under that version.

The info on the reasons and bases and what the court says the VA must do, i.e. will discuss all probative evidence,in a way which will allow the appellant and court to understand VA's ... I thought that could only be applied to BVA decisions because I'd never been able to find anything (in a court decision) that says the RO has to. I thought that's why the ROs get away with all that they do... ?

[Angela]

Berta,

Re-reading your earlier posts here reminded me of another question...hope I'm asking it in the right place.

The RO who wrote my original decision (which is at BVA for CUE right now) undebatably failed to consider highly probative evidence in that decision. I think this might have been because it was technical/medical in nature instead of in lay statements and the RO didn't understand it. I included medical texts that explained the record, and referenced them in my narrative (not to prove a point but to define terms used). But, since my case is a CUE, will they even look at the medical texts to determine the meaning of the records?

Edited August 4, 2008 by Angela

[allan]

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