Veteranclaims’s Blog

December 29, 2009

More on Colvin v. Derwinski, cited in Harmon v. Shinseki, No. 07-3778, Unsubstantiated Medical Conclusion

In response to more question concerning Colvin, I have gone back and located an excellent source to help explain what I posted yesterday on Colvin, this is from “THE VETERANS ADVOCATE”, A Veterans Law and Advocacy Journal, January – June 2008.

It better explains what I referring to yesterday [Harmon v. Shinseki, No. 07-3778,and follows closely with the Judge’s ruling in that case, citing to Colvin.

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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