M21-1, Part III, Subpart iv, Chapter 5, Section A – Principles of Reviewing Evidence and Decision Making

Introduction

• definition(s) of
  • evidence
  • rules of evidence, and
  • findings of fact and conclusions of law
• circumstances in which to evaluate evidence
• attitude when evaluating evidence
• overview of evaluating evidence
• rating activity responsibility for reviewing evidence
• provisions applied by the rating activity in evaluating evidence
• standards of evidentiary proof
• reasonable dout rule, and
• role of presumptive provisions.

Change Date

III.iv.5.A.1.a.  Definition:  Evidence

III.iv.5.A.1.b.  Definition:  Rules of Evidence

• The codified Federal rules of evidence used in Federal court proceedings do not apply in VA proceedings.
• VA is a completely ex-parte system of adjudication, meaning the VA is responsible for fully and sympathetically developing the Veteran’s claim and resolving all issues by giving the claimant the benefit of any reasonable doubt, in the absence of such adversarial concepts as cross examination, best evidence rule, and strict adherence to burden of proof.
• A VA General Counsel precedent opinion is considered an administrative issue for effective date purposes as indicated in VAOPGCPREC 88-1990,38 U.S.C. 5110(g), and 38 CFR 3.114.
• Generally, rules announced in precedent judicial decisions apply to all cases that are still open on direct review when the new rule is announced.  Unless they state otherwise, statutes and regulations are presumed to apply prospectively (in the future).

• Flynn v. Brown, 6 Vet.App. 500, 503 (1994), and
• Manio v. Derwinski, 1 Vet.App. 140 (1991).

III.iv.5.A.1.c.  Definitions: Findings of Fact and Conclusions of Law

III.iv.5.A.1.d.  Circumstances in Which to Evaluate Evidence

• all issues were recognized
• the duty to notify was discharged
• the duty to assist was completed or otherwise appropriately discharged, and
• the appropriate procedures were followed when any other due process requirement was implicated by the facts in the case.

• the Veterans Benefits Management System (VBMS), see the VBMS-User Guide, and
• Modern Awards Processing-Development (MAP-D), see the MAP-D User Guide.

III.iv.5.A.1.e.  Attitude When Evaluating Evidence

• maintain objectivity
• never allow personal feelings to enter into the decision-making process, and
• show fairness and courtesy at all times to claimants.

III.iv.5.A.1.f.  Overview of Evaluating Evidence

III.iv.5.A.1.g.  Rating Activity Responsibility for Reviewing Evidence

• recognizing the need for evidence in relation to a claim, and
• determining the
  • admissibility of the evidence
  • weight to be afforded evidence that is presented
  • need for additional evidence, and
  • need for a physical examination.

III.iv.5.A.1.h.  Provisions Applied by the Rating Activity in Evaluating Evidence

• laws
• regulations
• schedules for rating disabilities
• policy statements
• procedures
• administrators’ decisions
• Secretaries’ decisions
• Court of Appeals for Veterans Claims (CAVC) precedents, and
• other legal precedents governing VA.

III.iv.5.A.1.i.    Standards of Evidentiary Proof

III.iv.5.A.1.j.      Reasonable Doubt Rule

• 38 CFR 3.102, and
• 38 CFR 4.3.

III.iv.5.A.1.k.  Role of Presumptive Provisions

• soundness
• aggravation, and
• service connection (SC).

• presumption of soundness, see
  • 38 U.S.C. 1111, and
  • M21-1, Part IV, Subpart ii, 2.B.1.h-j
• presumption of aggravation, see
  • 38 U.S.C. 1153, and
  • M21-1, Part IV, Subpart ii, 2.B.4, and
• presumption of SC, see
  • 38 U.S.C. 1112, and
  • M21-1, Part IV, Subpart ii, 2.B.2.

Introduction

• admissibility of evidence
• definition of
  • credibility
  • competent evidence, and
  • probative value
• determining the probative value of evidence
• definitions of positive and negative evidence
• court holdings on negative evidence, and
• court holdings on negative evidence and the duty to assist.

Change Date

III.iv.5.A.2.a.  Admissibility of Evidence

• the claims folder, and
• all electronic records associated with the processing of a claim.

• managing evidence in the electronic claims folder, see M21-1, Part III, Subpart ii, 4.G.2
• inclusion of permanent notes as a part of the official record, see M21-1, Part III, Subpart ii, 4.G.2.m
• definitions of electronic claims folder and paper claims folder and the materials included therein, see M21-1, Part III, Subpart ii, 3.B.1.b and c, and
• HLRs, see M21-1, Part I, 6.

III.iv.5.A.2.b.  Definition:  Credibility

• There is generally not a formal presumption of credibility.  However, as a matter of policy, VA decision makers should accept evidence at face value unless called into question by other evidence of record or sound medical or legal principles.
• VA decision makers are expected to make credibility determinations when credibility is raised by the evidence available.

• facial plausibility
• consistency with other evidence submitted
• internal consistency
• demeanor of a witness (who is offering in person testimonial evidence), and
• interest/bias.

• Caluza v. Brown, 7 Vet.App. 508 (1995), and
• Justus v. Principi, 3 Vet.App. 510 (1992).

III.iv.5.A.2.c.  Definition:  Competent Evidence

• competent medical evidence, see 38 CFR 3.159(a)(1), and
• competent lay evidence, see 38 CFR 3.159(a)(2).

III.iv.5.A.2.d.  Definition:        Probative Value

• makes a matter material to the determination more or less likely, and
• has sufficient weight, either by itself or in combination with other evidence, to persuade the decision maker about a fact.

III.iv.5.A.2.e.  Determining the Probative Value of Evidence

• competency
• credibility
• thoroughness
• precision
• relevancy, and
• date of the evidence.

• physician’s qualifications
  • expertise/specialty, and
  • experience
• physician’s knowledge of the relevant history
  • the accuracy or validity of history provided by the patient or examinee
  • review of records and other evidence, or
  • length of time the physician has treated the Veteran
• context in which the medical evidence was created
  • treatment, or
  • substantiation of a medical disability claim
• reasoning employed by the physician
  • theory
  • observation
  • practice
  • clinical testing
  • subjective report, and
  • conjecture
• degree of specificity, and
• degree of certainty.

III.iv.5.A.2.f.  Definitions:  Positive and Negative Evidence

• actual items of evidence that affirmatively disprove the claimant’s position, or
• a negative inference taken from the absence of evidence on a matter supporting the claimant’s position.

III.iv.5.A.2.g.  Court Holdings on Negative Evidence

• The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held in Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002) (en banc), that all evidence bearing on a question, whether positive or negative, could be considered.  The Federal Circuit concluded that it was permissible for VA to consider negative evidence tending to disprove the existence of a cause other than alcohol intoxication of a fatal accident (the road was dry, the weather was clear, the accident occurred during daylight, and there was no evidence of malfunction of the vehicle) to rebut the line of duty presumption under 38 U.S.C 105.
• The Federal Circuit held in AZ, AY v. Shinseki, 731 F.3d 1303 (Fed.Cir.2013), that the absence of a service record documenting an unreported sexual assault or a Veteran’s failure to have reported an alleged assault in service may not be treated as pertinent evidence that the assault did not occur.
• The Federal Circuit held in Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000), that when rebutting the presumption of aggravation for a condition incurred during combat, 38 U.S.C. 1154(b) permits consideration of the entire medical history, including a lengthy period of absence of complaint following service about the claimed condition.
• The Federal Circuit held in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), that the Board of Veterans’ Appeals (BVA) erred in determining that lay evidence lacked credibility merely because it was unaccompanied by contemporaneous medical evidence.  Lay evidence may be rejected, when appropriate, due to such findings as possible bias or conflicting statements, and BVA may also consider and weigh the absence of contemporary medical records against the lay evidence of record.  However, this case found that the lack of contemporaneous medical records, in and of itself, does not render lay evidence incredible.

III.iv.5.A.2.h.  Court Holdings on Negative Evidence and the Duty to Assist

Introduction

• treating physician’s treatment background and probative value
• definitions of types of medical assessments
• medical assessments – history and policy applications
• disability benefits questionnaires (DBQs) and acceptable clinical evidence (ACE)
• basis for rejecting medical evidence
• supporting medical conclusions with evidence in the claims folder
• considering former prisoner of war (FPOW) protocol examination reports
• evaluating service treatment records (STRs), and
• statements from physicians as acceptable evidence for rating purposes without further examination.

Change Date

III.iv.5.A.3.a.  Treating Physician’s Treatment Background and Probative Value

III.iv.5.A.3.b.  Definitions:  Types of Medical Assessments

III.iv.5.A.3.c.  Medical Assessments – History and Policy Applications

• Reonal v. Brown, 5 Vet.App. 458 (1993), and
• Coburn v. Nicholson, 19 Vet.App. 427 (2006).

III.iv.5.A.3.d.  DBQs and ACE

III.iv.5.A.3.e.  Basis for Rejecting Medical Evidence

• Shipwash v. Brown, 8 Vet.App. 218 (1995), and
• Colvin v. Derwinski, Vet.App. 175 (1991).

III.iv.5.A.3.f.  Supporting Medical Conclusions With Evidence in the Claims Folder

• link or separate two disabilities, or
• establish or refute prior inception or aggravation.

III.iv.5.A.3.g.  Considering FPOW Protocol Examination Reports

III.iv.5.A.3.h.  Evaluating STRs

III.iv.5.A.3.i.  Statements From Physicians as Acceptable Evidence for Rating Purposes Without Further Examination

• is otherwise sufficient for rating purposes, and
• includes clinical manifestations and substantiation of diagnosis by findings of diagnostic techniques generally accepted by medical authorities.

Examples:  Diagnostic techniques generally accepted by medical authorities include

• pathological studies
• x-rays, and
• appropriate laboratory tests.

Introduction

• handling VA hospital reports that are insufficient for rating purposes
• handling non-VA hospital reports that are insufficient for rating purposes, and
• requesting clarification from private physicians.

Change Date

III.iv.5.A.4.a.  Handling VA Hospital Reports That Are Insufficient for Rating Purposes

• injury, aggravation of injury, or death as the result of
  • hospitalization
  • medical treatment
  • surgical treatment, or
  • examination, or
• the death of a Veteran from non-service-connected causes if
  • the Veteran had a service-connected neuropsychiatric disability that reasonably may have impeded, obstructed, or otherwise interfered with the treatment of the condition that caused death, and
  • the hospital report does not clarify this issue.

• M21-1, Part IV, Subpart ii, 1.A, and
• M21-1, Part IV, Subpart ii, 2.G.

III.iv.5.A.4.b.  Handling Non-VA Hospital Reports That Are Insufficient for Rating Purposes

• State hospital
• county hospital
• municipal hospital
• contract hospital, or
• private hospital.

Important:  Authorize a VA examination if a satisfactory corrected report cannot be obtained within a reasonable period of time.

III.iv.5.A.4.c.  Requesting Clarification From Private Physicians

• ask the private examiner to clarify the report
• request that the claimant obtain the necessary information to clarify the report, or
• explain why clarification is not needed.

• requesting clarification of medical reports, see
  • 38 CFR 4.2, and
  • Savage v. Shinseki, 24 Vet.App. 259 (2011), and
• requesting non-Federal or private records, see M21-1, Part I, 1.C.2.

Introduction

• using testimony as proper evidence, and
• handling unsworn or uncertified testimony.

Change Date

III.iv.5.A.5.a.  Using Testimony as Proper Evidence

III.iv.5.A.5.b.  Handling Unsworn or Uncertified Testimony

• claimant
• representative, or
• person testifying.

Introduction

• acceptable lay evidence
• when to use lay evidence, and
• descriptions of symptoms as evidence.

Change Date

III.iv.5.A.6.a.  Acceptable Lay Evidence

• is satisfactory
• is consistent with the circumstances, conditions, or hardships of combat or FPOW internment, and
• can prevail in spite of the absence of official records showing incurrence or aggravation of the disease or injury during service.

• considering evidence for combat-related disabilities, see M21-1, Part IV, Subpart ii, 2.B.3.d
• considering lay evidence, see 38 U.S.C. 1154(a)
• a non-combat Veteran’s statements, see Bardwell v. Shinseki, 24 Vet.App. 36 (2010), and
• evaluating STRs, see M21-1, Part III, Subpart iv, 5.A.3.h.

III.iv.5.A.6.b.  When to Use Lay Evidence

• the accuracy or clarity of the individual’s memory
• direct personal knowledge or experience
• recency of the event, and
• the competence of the reporting person.

• using lay evidence to support a claim, see Espiritu v. Derwinski, 2 Vet.App. 492 (1992), and
• definition of lay evidence, see 38 CFR 3.159(a)(2).

III.iv.5.A.6.c.  Descriptions of Symptoms as Evidence

Change Date

III.iv.5.A.7.a.  When Development to Obtain Additional Evidence May Be Needed

• it would provide a more complete picture of a question at issue, or
• if the evidence of record is questionable or conflicting.

• ordering further development in cases where uncorroborated lay evidence is presented, see Douglas v. Shinseki, 23 Vet.App. 19 (2009)
• a Veteran’s submission of evidence and refusal to attend a VA examination, see Kowalski v. Nicholson, 19 Vet.App. 171 (2005), and
• developing with the purpose of denying and explaining the need for development, see Mariano v. Principi, 17 Vet.App. 305 (2003).

Introduction

• evaluating evidence from non-VA sources, and
• evaluating conflicting evidence.

Change Date

III.iv.5.A.8.a.  Evaluating Evidence From Non-VA Sources

III.iv.5.A.8.b.  Evaluating Conflicting Evidence

• whether witnesses have a personal interest in the issue
• if there is a basis for bias
• if one party had a better opportunity to know the facts, and
• which version is more reasonable and probable.

Introduction

• assigning weight to the evidence
• questions to ask when weighing evidence
• handling imbalanced evidence
• handling evidence in equipoise
• considering reasonable doubt
• example of evidence in equipoise, and
• reaching a conclusion after weighing evidence.

Change Date

III.iv.5.A.9.a.  Assigning Weight to the Evidence

• review the evidence in its totality, and
• determine the balancing of scales.

Note:  Do not assign weight unjustly or arbitrarily.

III.iv.5.A.9.b.  Questions to Ask When Weighing Evidence

• Did the evidence originate in service or in close proximity to service?
• Is the medical opinion supported by clinical data and review of medical records?
• How detailed, clear, or persuasive is the opinion?
• Is the opinion based on personal knowledge or on history provided by another person?

Reference:  For more information on weighing medical evidence/opinions, see

• Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008), and
• Stefl v. Nicholson, 21 Vet.App. 120 (2007).

III.iv.5.A.9.c.  Handling Imbalanced Evidence

• Traut v. Brown, 6 Vet.App. 495 (1994), and
• Rose v. West, 11 Vet.App. 169 (1998).

III.iv.5.A.9.d.  Handling Evidence in Equipoise

III.iv.5.A.9.e.  Considering Reasonable Doubt

• Per Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009), a VA examiner’s statement that he/she is not able to render an opinion
  • provides neither positive nor negative support for the claim, and
  • does not trigger the application of reasonable doubt.
• Do not characterize an examiner’s statement of being unable to render an opinion as “non-evidence.”  Refer to such evidence in the decision narrative in such terms as having neither positive nor negative value.

Reference:  For more information on discussing the reasonable doubt rule, see

• Gilbert v. Derwinski, 1 Vet.App. 49 (1990)
• Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001), and
• M21-1, Part III, Subpart iv, 5.A.1.

III.iv.5.A.9.f.  Example:   Evidence in Equipoise

III.iv.5.A.9.g.  Reaching a Conclusion After Weighing Evidence

• discuss the evidence in favor of the claim
• discuss the evidence against the claim to include any negative evidence, and
• explain that
  • one set of evidence outweighs the other set, or
  • the evidence is in equal balance for and against the claim.

Reference:  For more information on negative evidence, see

• Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002) (en banc), and
• Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).

Introduction

• evaluation of evidence
• decision-making in a non-adversarial system, and
• two-part analysis for previously decided claims.

Change Date

III.iv.5.A.10.a.  Evaluation of Evidence

• be objective and fair in the consideration of evidence
• ensure that any inferences, findings, and conclusions made are supported under the facts and law
• follow the evidentiary guidance in this chapter
• be professional and courteous even when claimants are antagonistic, critical, or abusive
• not allow any bias or personal feelings into the evaluation of evidence or the decision
• not arbitrarily or capriciously refuse to assign weight to a claimant’s evidence, and
• not adopt or express an adversarial position towards a claimant or beneficiary.

Important:

• Do not refer to the claimant or beneficiary as a liar.  Where evidence is not credible, say that and cite facts of record in support.
• Do not minimize the weight of a treating physician’s opinion based upon the idea that he/she has become an advocate for the patient since doing so may appear adversarial and biased.

III.iv.5.A.10.b.  Decision-Making in a Non-Adversarial System

• first, whether new and relevant evidence has been submitted to warrant readjudication of the claim, and
• if so, whether to grant or continue to deny the underlying claim.

• 38 CFR 3.2500(g), and
• M21-1, Part III, Subpart iv, 5.C.6.