Veteranclaims’s Blog

November 15, 2009

VA’s use of Unsubstantiated Medical Conclusions, Colvin v. Derwinski

We came across this older posting on the ““Top 10” Court Cases for Advocates”, it makes a good point when they point out that VA and BVA may often make a determination that an in-service injury was “acute, without chronic residual disability.” I’ve seen this phrase used a lot.

This is similar to what was pointed out in our negative evidence posting, a conclusion which may or may not be referenced to any medical evidence. If there is not cited medical evidence, even if they do cite to evidence, make sure that it is correctly cited/quoted and not their [VA’s] own unsubstantiated medical conclusion.

See the excerpt below citing to Colvin v. Derwinski

Full Article at:
THE VETERANS ADVOCATE
PDF file
A Veterans Law and Advocacy Journal
VOL. 19, NO. 1-6
January – June 2008

“VA Can’t Base Denial on its Own Medical Judgment
Colvin v. Derwinski, 1 Vet. App. 171 (1991)
Colvin stands for a now deeply embedded and fundamental principle of veterans law-the VA may use only independent medical evidence to support its benefits decisions. The VA may not use the medical opinion or judgment of the VA rater or BVA Veterans Law Judge to support a decision.
For many years prior to Colvin, VA decisions were based on the findings of VA physicians who were part of the decision-making process. A doctor employed by VA would not only provide the medical opinion that would be used to decide the claim, he or she would participate in deciding whether to grant or deny benefits.
This practice of having VA doctors play a decisionmaking role was ended by Colvin.
The Court held that:
If the medical evidence of record is insufficient, or, in
the opinion of the BVA, of doubtful weight or credibility,
the BVA is always free to supplement the
record by seeking an advisory opinion, ordering
a medical examination or citing recognized medical
treatises in its decisions that clearly support its
ultimate conclusions . . . . This procedure ensures
that all medical evidence contrary to the veteran’s
claim will be made known to him and be part of
the record before this Court.
Colvin, 1 Vet.App. at 175.
But advocates must watch out . . . even though the formal procedure of having a VA doctor play a decisionmaking role stopped after Colvin, VA raters and BVA Veterans Law Judges persist in relying on their own medical judgments to decide claims. For example, the VA and BVA may often make a determination that an in-service injury was “acute, without chronic residual disability.” However, the degree of injury and whether any disabilities resulted from the injury are medical assessments that the VA and the Board are not competent to make unless there is independent medical evidence to support that conclusion. This means that in many cases the VA’s determination that an in-service injury was acute and did not result in chronic disability may violate Colvin.

Another common problem is that the VA may dismiss favorable medical evidence of record without citing to medical evidence in the record or medical literature to support its rejection. A good rule of thumb based on Colvin is that if there is a VA-made medical conclusion-not directly based on a medical examination report, advisory opinion, or medical literature- the conclusion may be erroneous because the VA has no independent medical support for its findings.
Decisions containing unsupported medical conclusions should be appealed.”

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3 Comments »

  1. Wanted to suggest a resource for those looking for assistance with veterans compensation benefits – veteranslaw.com

    Thanks!

    Comment by Veterans Law — November 21, 2009 @ 12:36 am

  2. how do i find the acutual case of colvin v. derwinski

    Comment by anthony sharpe — December 25, 2009 @ 1:07 am

    • Anthony,

      The easiest way is to go to the U.S. Court of Veteran Appeals website at:
      http://www.uscourts.cavc.gov/
      On the left hand column find Case Information and click on click on Decisions and Opinions which will take you to an Search the ISYS system for Decisions and Opinions link, click on that and it will take you to a search page where you can enter Colvin, when the results come up click on the date filter at the top of the results once, this will put Colvin as the top case.

      I will also post the case, as my sister site with all the CAVC cases in it is not being indexed by the search engines, I set up this sister Blog to make such searches easier.

      If you try using the ISYS system for a while you will get a feel for why most people find it very difficult to drill down to what you want. I once though about doing a guide to using ISYS search systems but decided that setting up a separate Blog with CAVC cases in it easier and less furstrating to for veterans to use.

      Comment by veteranclaims — December 26, 2009 @ 11:37 pm


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