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Tadlock v. McDonough, 5 F.4th 1327,1335 (Fed.Cir. 2021)(instructing this Court to leave matters to the Board that are “open to debate”)
Tadlock v. McDonough, 5 F.4th 1327, 1335 (Fed.Cir. 2021) (holding that this Court cannot make findings of fact in the first instance in the context of harmless error analysis)
Tadlock v. McDonough, 5 F.4th 1327,1335 (Fed.Cir. 2021)(holding that this “Court may affirm on a ground not considered by the Board and the VA if it is clear that the factual basis for such conclusion is not open to debate and the Board on remand could not have reached any other determination on that issue”(citing Mayfield v. Nicholson ,444 F.3d 1328,1336 (Fed. Cir.2006)))
Tadlock v. McDonough, 5 F.4th 1327,1336 (Fed.Cir. 2021)(holding that the Court’s statutory duty to consider prejudicial error “does not give it the right to make de novo findings of fact or otherwise resolve matters that are open to debate”)
Tadlock , 5 F.4th at 1336 (citing Mayfield v. Nicholson, 444 F.3d 1328,1336 (Fed. Cir. 2006)(“[T]his case is not one in which we can conclude that there was no violation of the Chenery doctrine on the ground that ‘it is clear that …the agency would have reached the same ultimate result under the court’s legal theory.’”(alteration in original)
Tadlock, 5 F.4th at 1337-38 (“Where additional findings of fact are necessary regarding matters open to debate,the proper action for the Veterans Court is to remand to the Board for consideration of those facts
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Single Judge Application; migraine; Holmes v. Wilkie, 33 Vet.App. 67, 73 (2020) (explaining that the word “migraine” contemplates a range of symptoms beyond headaches);
November 6, 2021
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Single Judge Application; Pain limits ability to function; Deluca factors; in rating musculoskeletal disabilities, the Board must rely on VA examinations that consider whether and to what extent pain, or other factors listed in 38 C.F.R. §§ 4.40 and 4.45 (the Deluca factors), limit a veteran’s ability to function. Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017). If pain causes functional loss, it “must be rated at the same level as if that functional loss were caused by some other factor.” Mitchell v. Shinseki, 25 Vet.App. 32, 37, (2011). For an examination to adequately capture functional loss, the examiner must opine whether pain could significantly limit functional ability and, if feasible, portray that opinion “‘in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.’” Sharp, 29 Vet.App. at 32 (quoting Deluca v. Brown, 8 Vet.App. 202, 206 (1995)). If an examiner is unable to offer a nonspeculative estimate of a veteran’s functional loss due to pain, the examiner must explain why such an opinion cannot be offered. Id. at 32;
November 6, 2021
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Single Judge Application; flare-up; this Court’s caselaw and VA guidelines requiring VA medical examiners, in situations when direct observation is not possible, to opine on and quantify the effect of pain on functioning based on other evidence. See, e.g., Sharp v. Shulkin, 29 Vet.App. 26, 35 (2017) (instructing VA examiners, when conducting examinations that do not take place during a flare-up, to “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans”);
November 6, 2021
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Privacy Act of 1974; System of Records
November 6, 2021
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