FROM THE LAST LIVE FREE OR
DIE STATE IN THE UNION RO
What constitutes a probative nexus? How can you tell if you have the real McCoy from Dr. Bash and/or one of his cohorts in the biz? If you are getting one from your physician, what will be the focal point in the make or break decision on whether its more probative than vA’s slanted one?
Here’s a decision handed down just last October (2011) that clearly defines what the VLj’s criteria are in his own words (or his munchkins’). VLJ Stephen D. Reiss is a newbie and wants to get this anally correct. A lot of VLJs are altruistic that way until they burn out on screwing Vets.
The agenda is preordained. The denial is crafted to fit the individual. As we know from numerous decisions, STDs are always the culprit after service but rarely during. The same applies to getting blood on you while carrying what’s left of your buddy to the dustoff after a run in with a B 40. On the other hand of course, a minute speck of blood, perchance from sharing a straw while enjoying Peru’s major export, will be the most obvious etiology of the HCV- whether in service or after . In short, anything that could be a risk in service… isn’t. Conversely anything after service like excessive ETOH use is the smoking gun. Surely you can see that. So, what are the rules for the magic paper?
This decision elaborates in VLJ Reiss’ own (or paraphrased) words what he and other judges would accept based on established law. This case sums up all those individual nuances that will make you or break you.
The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).
I can find no panel or even SJD on Bryan so I haven’t the faintest where they got that cite. Here’s Wilson– Wilson_90-1080.
In any event, here’s the seminal language I was looking for a while back that summarizes what will get the pass:
As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996).
In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04.
The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).
The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ( “[A] medical opinion … must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”).
As you can see, you have a three-step process to make the magic paper viable. Of course, you could have all these at the RO and still come up short. The reason being is that the M-21 A1 is missing the chapter containing Madden, Wensch, Jefferson, Wilson, Dalton Caluza, Nieves-Rodriguez , McLendon and Stefl. They live in another adjudication world when up is in and down is wrong. Legal concepts do not enter into the M-21-just denial language and chaos theory.
All in all, this is an interesting decision if for no other reason that it shows the correlation between PTSD and service connection for HCV due to drug/alcohol drug abuse. I don’t have a problem with that. Any port in a storm.