Bases

Single Judge Application; reason and bases; Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001); failure discuss all the evidence favorable to a claimant; Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994); the Board cannot “evade [its] statutory responsibility [to state the reasons or bases for its conclusions] merely by adopting [a medical opinion] as its own” where the medical opinion “fails to discuss all the evidence which appears to support [the] appellant’s position.” Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994). Gabrielson does not require that a medical opinion discuss all the evidence favorable to a claimant, only that the Board, in relying on an opinion that does not do so, discuss any additional favorable evidence to comply with its duty to provide an adequate statement of reasons or bases for its decision. See id.; 38 U.S.C. § 7104(d)(1); see also Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001) (holding that, although the Board must consider all of the evidence of record, “a discussion of all evidence is not required when . . . the Board has supported its decision with thorough reasons or bases regarding the relevant evidence”);

[ad_1] Single Judge Application; reason and bases; Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001); failure discuss all…

3 years ago

Single Judge Application; Tedesco v. Wilkie; implicit bias against lay evidence; The Board’s analysis is substantially similar to the Board’s analysis in Tedesco v. Wilkie, where the Board noted an appellant’s reports of knee instability but found medical evidence more probative. 31 Vet.App. 360, 367 (2019). We ultimately remanded that claim, stating that “[t]he Board fail[ed] to explain why the medical findings are more probative, other than to assert that the ‘specific medical tests . . . are designed to reveal instability . . . of the joints.’” Id. Just as in Tedesco, the Board’s statement here, that “[t]he DBQs were completed by medical professionals who formulated their conclusions based on a physical examination, review of the record, and interview of the Veteran,” fails to suggest any actual reasons or bases for finding the lay statements outweighed by “significant objective evidence,” other than an implicit bias against lay evidence and a preference for medical evidence. R. at 8. The Board also failed to explain why it considered the appellant’s lay statements “generalized.”;

[ad_1] Single Judge Application; Tedesco v. Wilkie; implicit bias against lay evidence; The Board’s analysis is substantially similar to…

3 years ago

Single Judge Application; deficient reasons and bases; It is the Board’s responsibility as factfinder to assess and weigh the evidence.18 Here, we simply do not know the weight, if any, the Board gave this evidence in assigning a rating for appellant’s GERD. It is important for the Board to make such a finding in the first instance.19 We recognize that the Secretary offers several arguments about why extraschedular referral is not warranted for appellant’s GERD. However, it is ultimately not his prerogative to provide an explanation that the Board did not. As we have often said, the Secretary cannot make up for the Board’s deficient statement of reasons or bases.20; 19 See Tadlock v. McDonough, 5 F.4th 1327, 1337-38 (Fed. Cir. 2021) (“Where additional findings of fact are necessary regarding mattes open to debate, the proper action is for the Veterans Court is to remand to the Board for consideration of those facts in the first instance.”).; 20 See In re Lee, 277 F.3d 1338, 1345-46 (Fed. Cir. 2002) (“‘[C]ourts may not accept appellate counsel’s post hoc rationalization for agency action.’” (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962))); McCray v. Wilkie, 31 Vet.App. 243, 258 (2019) (“[T]he Secretary’s impermissible post-hoc rationalization cannot make up for shortcomings in the Board’s assessment.”); Simmons v. Wilkie, 30 Vet.App. 267, 277 (2018) (holding that the “Court cannot accept the Secretary’s post-hoc rationalizations” to cure the Board’s reasons-or-bases errors), aff’d, 964 F.3d 1381 (Fed. Cir. 2020); Smith v. Nicholson, 19 Vet.App. 63, 73 (2015) (“[I]t is not the task of the Secretary to rewrite the Board’s decision through his pleadings filed in this Court.”).;

[ad_1] Single Judge Application; deficient reasons and bases; It is the Board’s responsibility as factfinder to assess and weigh…

3 years ago

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