VRAB"S "Credibility of Evidence"

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VRAB"S "Credibility of Evidence"

Post  Supremedebater on Sat Jan 05, 2013 10:01 pm

Evaluating credibility of evidence

Every case heard by the Veterans Review and Appeal Board (VRAB) is different and is decided on its merits in accordance with the directions provided in the Veterans Review and Appeal Board Act. Whether or not any piece of evidence is assessed as credible evidence can depend on a number of factors: 1) The facts or history are accurate and complete, that is, they are the same facts that are apparent from the other evidence; 2) The conclusion makes sense in that it flows logically from the facts; and 3) If it is medical evidence, the medical expert provides a reasonable explanation of how he or she has drawn the conclusion from the facts.

If the Board decides that evidence is not credible, it is required to provide the reasons for its decision. The applicant and representative are then able to understand why the evidence was found not to be credible and determine what evidence would be required to establish the case for the next level of redress, should the applicant remain dissatisfied.

The onus is on the applicant (and his/her representative) to establish the case through the presentation of credible evidence. However, the Board may, on occasion, use its powers under section 38 of the Veterans Review and Appeal Board Act to obtain independent advice (such as medical opinions) if it believes there is an outstanding issue that could be resolved through obtaining the appropriate expert advice.

Types of evidence used to establish a case before the Board •Medical evidence includes:
a) medical documentation (ie. medical exams, surgery reports, etc, reporting medical facts) and;
b) doctor’s expert opinions drawing conclusions from various facts (ie. patient medical history, current medical knowledge) on the status and origins of the applicant’s disability.
•Documentary evidence (ie. service records) establishes an applicant’s service history and helps in the determination of whether his or her disability resulted from an activity or event that took place during service.
•Witness statements are useful for confirming circumstances and may be helpful in describing incidents. Witness statements are often taken from colleagues that can testify that an event took place and/or confirm the details of an accident, participation in a sporting activity/occupation, or postings to various bases.
•Testimony from the applicant is the personal testimony provided at the review hearing that describes the details of the disability, incident, or military service - from the applicant’s perspective. This testimony puts the personal face and story behind each claim and may be one of the reasons why the Board varies or overturns decisions by the Department. This is new evidence that the Department was not privy to in rendering its decision.

Amount of evidence required by the Board

The Board does not require a specific amount of evidence for claims. Each case that comes before the Board is adjudicated on its own merit. In every case, the goal of the Board is to make an informed and fair decision, based on the evidence provided by the applicant (and his/her representative) together with evidence from the service medical records. If there is insufficient evidence to permit an award, the Board is required to provide the reasons why the claim was denied (such as insufficient service documentation). The applicant and representative are then able to understand what evidence is required to establish the case for the next level of redress, should the applicant remain dissatisfied.

Applicant’s responsibilities in obtaining evidence

The onus is on applicants and representatives to establish their case and provide sufficient evidence to the Board. Sometimes representatives require applicants to help prepare for hearings by tracking down documented evidence and witness statements that the representative may not be able to readily access. Many applicants state in their application form that "the evidence or record is in my file" and then are surprised and frustrated to discover that it is not. Ultimately, it is the applicants’ responsibility, in conjunction with their representative, to ensure that they are prepared for a VRAB hearing; and that the evidence or record is made available to the Board.

Before a VRAB hearing, the evidence/material that was used by the Department to arrive at the first decision is assembled for the VRAB members to prepare for and hear applicants’ claims. The information is always shared with the applicant’s representative in advance of the hearing who, in turn, usually shares it with the review applicant. The applicant and/or representative should therefore know what information is available and/or missing in the case file that will be considered by the Board in rendering a decision. They can then supplement and add necessary information to the file prior to the hearing to ensure that the best case possible is being brought forward.

Medical reports

Some cases will involve purely medical issues, some will involve legal issues alone, and others a combination of both legal and medical issues. Therefore, in some cases, medical reports and other medical evidence are very important while, in other cases, they are not as important.

For those cases that can turn on medical issues alone, it is evidence from a qualified medical practitioner that is necessary to establish the case. This is a matter that should be discussed with the applicant’s representative prior to making an application to the Board. A representative will be able to guide applicants regarding additional information or evidence that may be necessary to successfully establish the claim.

Although applicants may obtain medical information and opinions to support their case, the reports may be found to be not credible if, for example, the medical experts have not been provided with all the relevant information on which to base their report or the expert was not qualified to provide a credible opinion.

If an applicant does not present sufficient credible evidence to the Board, the claim may not succeed, even with the benefit of the doubt provisions. It is the applicant’s (and his/her representative’s) responsibility to provide credible evidence to support the claim.
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