Tag: absence

Single Judge Application; Geib, 733 F.3d at 1354 (establishing that “applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”); Board was therefore prohibited from characterizing their silence on the issue as substantive evidence against entitlement to TDIU; AZ v. Shinseki, 731 F.3d 1303, 1317 (Fed. Cir. 2013) (holding that “where a condition would not normally have been recorded, the Board may not consider the absence of [administrative record] evidence as substantive negative evidence of that condition.”); “[T]he absence of evidence on a particular question cannot be construed as negative evidence against a claimant unless there is a foundation in the record that demonstrates that such silence has a tendency to prove or disprove a relevant fact.” Delrio, 32 Vet.App. at 240 (citing Fountain v. McDonald, 27 Vet.App. 258, 272 (2015));
“Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10[%] and no more under [DC] 9304. This 10[%] disability rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10[%] for brain disease due to trauma under [DC] 9304 are not assignable in the absence of a diagnosis of non-psychotic [OBS] with brain trauma.” 2015 WL 5255331, at*8 (quoting 38 C.F.R. § 4.124a, DC 8045 (1988));

Single Judge Application; substantive negative evidence; Fountain v. McDonald, 27 Vet.App. 258, 272 (2015); Horn v. Shinseki, 25 Vet.App. 231, 239 (2012); to the extent that the Board’s analysis may be read as implicitly finding him not credible because his service records did not confirm his testimony regarding the locations of his barracks and the flightline relative to the Udorn Air Base perimeter, the Board generally must “first establish a proper foundation for drawing inferences against a claimant from an absence of documentation.” Fountain v. McDonald, 27 Vet.App. 258, 272 (2015); Notably, a lack of confirmation is not the same as a contradiction of the claimant’s assertions. See Horn v. Shinseki, 25 Vet.App. 231, 239 (2012) (observing that the absence of evidence is not necessarily substantive negative evidence). And here, the Board did not explain whether and why it would be expected to find corroboration of the barracks and flightline locations relative to the perimeter in Mr. Cornelious’s service records. Thus, to the extent that the Board drew a negative inference from the lack of corroborating service records and relied on that inference to find Mr. Cornelious not credible, the Court concludes that the Board failed to lay a proper foundation. See Fountain, 27 Vet.App. at 272; Horn, 25 Vet.App. at 239;

Single Judge Application; substantive negative evidence; Fountain v. McDonald, 27 Vet.App. 258, 272 (2015); Horn v. Shinseki, 25 Vet.App. 231, 239 (2012); to the extent that the Board’s analysis ...