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Tag: CFR

Single Judge Application; In Chavis, the Court explained that the ankylosis requirement in 38 C.F.R. § 4.71a “can be met with evidence of the functional equivalent of ankylosis during a flare.” Chavis v. McDonough, _ Vet.App. _ , No. 19-2928, 2021 WL 1432578, at *1 (Apr. 16, 2021) (emphasis added); Chavis changes the landscape; examiner did not consider whether the functional limitations appellant experienced regularly and during the examination were akin to a functional equivalent of ankylosis. Though the Board did mention appellant’s daily flare-ups, pain, and functional limitations of his neck, the Board did not address how this potentially favorable evidence compared to ankylosis;

Single Judge Application; In Chavis, the Court explained that the ankylosis requirement in 38 C.F.R. § 4.71a “can be met with evidence of the functional equivalent of ankylosis during a flare.” Chavis v. McDonough, _ Vet.App. _ , No. 19-2928, 2021 WL 1432578, at *1 (Apr. 16, 2021) (emphasis added); Chavis changes the landscape; examiner did not consider whether the functional limitations appellant experienced regularly and during the examination were akin to a functional equivalent of ankylosis. Though the Board did mention appellant’s daily flare-ups, pain, and functional limitations of his neck, the Board did not address how this potentially favorable evidence compared to ankylosis;

by The Editor
October 19, 2021
0

Single Judge Application; In Chavis, the Court explained that the ankylosis requirement in 38 C.F.R. § 4.71a “can be met with evidence of the functional equivalent of ankylosis during ...

Single Judge Application; obesity; Walsh v. Wilkie; Gen. Coun. Prec. 1-2017 (Jan. 6, 2017); A 2017 VA General Counsel (VAGC) precedent opinion determined that “[o]besity may be an ‘intermediate step’ between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a),” VA Gen. Coun. Prec. 1-2017 (Jan. 6, 2017), at 2, ¶ 5. The VAGC explained that, in these cases, the Board would be required to resolve (1) whether the service-connected disability caused the veteran to become obese; (2) if so, whether obesity as a result of the service-connected disability was a substantial factor in causing the claimed secondary disability; and (3) whether the claimed secondary disability would not have occurred but for obesity caused by the service-connected disability. Id. at 9-10, ¶ 15. See also Walsh v. Wilkie, Vet.App., 2020 WL 878798 (Feb. 24, 2020) at *5 (holding that G.C. Prec. 1-2017 requires the Board to consider aggravation in the context of these claims when the theory is explicitly raised by the veteran or reasonably raised by the record).;

Single Judge Application; obesity; Walsh v. Wilkie; Gen. Coun. Prec. 1-2017 (Jan. 6, 2017); A 2017 VA General Counsel (VAGC) precedent opinion determined that “[o]besity may be an ‘intermediate step’ between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a),” VA Gen. Coun. Prec. 1-2017 (Jan. 6, 2017), at 2, ¶ 5. The VAGC explained that, in these cases, the Board would be required to resolve (1) whether the service-connected disability caused the veteran to become obese; (2) if so, whether obesity as a result of the service-connected disability was a substantial factor in causing the claimed secondary disability; and (3) whether the claimed secondary disability would not have occurred but for obesity caused by the service-connected disability. Id. at 9-10, ¶ 15. See also Walsh v. Wilkie, Vet.App., 2020 WL 878798 (Feb. 24, 2020) at *5 (holding that G.C. Prec. 1-2017 requires the Board to consider aggravation in the context of these claims when the theory is explicitly raised by the veteran or reasonably raised by the record).;

by The Editor
October 19, 2021
0

Single Judge Application; obesity; Walsh v. Wilkie; Gen. Coun. Prec. 1-2017 (Jan. 6, 2017); A 2017 VA General Counsel (VAGC) precedent opinion determined that “besity may be an ‘intermediate ...

Single Judge Application; Lyles v. Shulkin, 29 Vet.App. 107, 109 (2017); “entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different DC.” Lyles v. Shulkin, 29 Vet.App. 107, 109 (2017). Further, a veteran with a musculoskeletal disability, such as Mr. Wilson’s left knee disability, may be entitled to a higher disability evaluation than that supported by mechanical application of the schedule where there is evidence that the disability causes “additional functional loss—i.e., ‘the inability . . . to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance’— including as due to pain and/or other factors” or “reduction of a joint’s normal excursion of movement in different planes, including changes in the joint’s range of movement, strength, fatigability, or coordination.” Id. at 117-18 (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); see Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017) (“Flare-ups . . . must be factored into an examiner’s assessment of functional loss”); Mitchell v. Shinseki, 25 Vet.App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet.App. 202, 205-07(1995).;

Single Judge Application; Lyles v. Shulkin, 29 Vet.App. 107, 109 (2017); “entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different DC.” Lyles v. Shulkin, 29 Vet.App. 107, 109 (2017). Further, a veteran with a musculoskeletal disability, such as Mr. Wilson’s left knee disability, may be entitled to a higher disability evaluation than that supported by mechanical application of the schedule where there is evidence that the disability causes “additional functional loss—i.e., ‘the inability . . . to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance’— including as due to pain and/or other factors” or “reduction of a joint’s normal excursion of movement in different planes, including changes in the joint’s range of movement, strength, fatigability, or coordination.” Id. at 117-18 (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); see Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017) (“Flare-ups . . . must be factored into an examiner’s assessment of functional loss”); Mitchell v. Shinseki, 25 Vet.App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet.App. 202, 205-07(1995).;

by The Editor
October 18, 2021
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Single Judge Application; Lyles v. Shulkin, 29 Vet.App. 107, 109 (2017); “entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which ...

Single Judge Application; Davis v. McDonough, 34 Vet.App. 131, 132 (2021) (“Under 38 C.F.R. § 3.156(b), when new and material evidence is submitted within the appeal period following a VA decision on a claim, the evidence must be considered in connection with that claim,” and “if VA fails to undertake that consideration, the claim remains pending until it does. Thus, when this rule is implicated, it can require the assignment of effective dates for benefits ultimately granted that are much earlier than would otherwise obtain.”);

Single Judge Application; Davis v. McDonough, 34 Vet.App. 131, 132 (2021) (“Under 38 C.F.R. § 3.156(b), when new and material evidence is submitted within the appeal period following a VA decision on a claim, the evidence must be considered in connection with that claim,” and “if VA fails to undertake that consideration, the claim remains pending until it does. Thus, when this rule is implicated, it can require the assignment of effective dates for benefits ultimately granted that are much earlier than would otherwise obtain.”);

by The Editor
October 16, 2021
0

Single Judge Application; Davis v. McDonough, 34 Vet.App. 131, 132 (2021) (“Under 38 C.F.R. § 3.156(b), when new and material evidence is submitted within the appeal period following a ...

Single Judge Application; Tadlock remand from Federal Circuit; overlapping signs or symptoms; Veterans of the Gulf War can establish entitlement to service connection on a presumptive basis for “a qualifying chronic disability” that arises during service or to a compensable degree before December 31, 2026. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1)(i) (2021). A “qualifying chronic disability” is one that results from either an “undiagnosed illness” or a “medically unexplained chronic multisymptom illness [(MUCMI)] that is defined by a cluster of signs or symptoms.” 38 C.F.R. § 3.317(a)(2)(i)(A)-(B). A MUCMI, inturn, is defined as “a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.” Id. § 3.317(a)(2)(ii);

Single Judge Application; Tadlock remand from Federal Circuit; overlapping signs or symptoms; Veterans of the Gulf War can establish entitlement to service connection on a presumptive basis for “a qualifying chronic disability” that arises during service or to a compensable degree before December 31, 2026. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1)(i) (2021). A “qualifying chronic disability” is one that results from either an “undiagnosed illness” or a “medically unexplained chronic multisymptom illness [(MUCMI)] that is defined by a cluster of signs or symptoms.” 38 C.F.R. § 3.317(a)(2)(i)(A)-(B). A MUCMI, inturn, is defined as “a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.” Id. § 3.317(a)(2)(ii);

by The Editor
October 14, 2021
0

Single Judge Application; Tadlock remand from Federal Circuit; overlapping signs or symptoms; Veterans of the Gulf War can establish entitlement to service connection on a presumptive basis for “a ...

October 8, 2021); criminal judgment; total disability rating; 38 U.S.C. § 5313(c); 38 C.F.R. § 3.341(b); The term “correctional facility” cannot encompass a hospital that treats civil patients, and a hospital cannot be a correctional facility for some patients and not others;

October 8, 2021); criminal judgment; total disability rating; 38 U.S.C. § 5313(c); 38 C.F.R. § 3.341(b); The term “correctional facility” cannot encompass a hospital that treats civil patients, and a hospital cannot be a correctional facility for some patients and not others;

by The Editor
October 9, 2021
0

Philbrook v. McDonough, No. 2020-2233 (Decided: October 8, 2021); criminal judgment; total disability rating; 38 U.S.C. § 5313(c); 38 C.F.R. § 3.341(b); The term “correctional facility” cannot encompass a ...

Single Judge Application; hearing loss effective date; Swain v. McDonald, 27 Vet.App. 219 (2015); in Swain v. McDonald the Court explained that 38 C.F.R. § 4.85 does not govern the effective date for hearing loss ratings. See 27 Vet.App. at 224-25. The Court held that the effective date for hearing loss may be earlier than the date of an audiometric test that satisfies the criteria under 38 C.F.R. § 4.85, and that, “unless otherwise specifically noted in the statute or regulation, [38 U.S.C. § 5110(b)(3)] and [38 C.F.R.] § 3.400 govern the effective date for disability benefits claims.” Id. at 225. The Board noted some of Mr. Garcia’s statements about his worsening hearing loss before 2019, but the Board denied entitlement to a compensable rating before June 11, 2019, seemingly because the record did not contain any other “audiometric testing results during this portion of the appeal period which comply with 38 C.F.R. § 4.85 for rating purposes.” R. at 11.; » HadIt.com For Veterans Who’ve Had It With The VA

Single Judge Application; hearing loss effective date; Swain v. McDonald, 27 Vet.App. 219 (2015); in Swain v. McDonald the Court explained that 38 C.F.R. § 4.85 does not govern the effective date for hearing loss ratings. See 27 Vet.App. at 224-25. The Court held that the effective date for hearing loss may be earlier than the date of an audiometric test that satisfies the criteria under 38 C.F.R. § 4.85, and that, “unless otherwise specifically noted in the statute or regulation, [38 U.S.C. § 5110(b)(3)] and [38 C.F.R.] § 3.400 govern the effective date for disability benefits claims.” Id. at 225. The Board noted some of Mr. Garcia’s statements about his worsening hearing loss before 2019, but the Board denied entitlement to a compensable rating before June 11, 2019, seemingly because the record did not contain any other “audiometric testing results during this portion of the appeal period which comply with 38 C.F.R. § 4.85 for rating purposes.” R. at 11.; » HadIt.com For Veterans Who’ve Had It With The VA

by The Editor
October 6, 2021
0

Single Judge Application; hearing loss effective date; Swain v. McDonald, 27 Vet.App. 219 (2015); in Swain v. McDonald the Court explained that 38 C.F.R. § 4.85 does not govern ...

Single Judge Application; a MUCMI is “a diagnosed illness without conclusive pathophysiology or etiology[] that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.” 38 C.F.R. § 3.317(a)(2)(ii). “Under the proper interpretation of the law, an illness is a MUCMI where either the etiology or pathophysiology of the illness is inconclusive.” Stewart v. Wilkie, 30 Vet.App. 383, 390 (2018); “Conversely, a multisymptom illness is not a MUCMI where both the etiology and the pathophysiology of the illness are partially understood.” Id.; “[W]hether an illness is ‘defined by a cluster of signs or symptoms’ . . . is a question of fact delegated to the VA . . . for consideration in the first instance.” Tadlock, 5 F.4th at 1338 (quoting 38 U.S.C. § 1117(a)(2)(B)); » HadIt.com For Veterans Who’ve Had It With The VA

Single Judge Application; a MUCMI is “a diagnosed illness without conclusive pathophysiology or etiology[] that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.” 38 C.F.R. § 3.317(a)(2)(ii). “Under the proper interpretation of the law, an illness is a MUCMI where either the etiology or pathophysiology of the illness is inconclusive.” Stewart v. Wilkie, 30 Vet.App. 383, 390 (2018); “Conversely, a multisymptom illness is not a MUCMI where both the etiology and the pathophysiology of the illness are partially understood.” Id.; “[W]hether an illness is ‘defined by a cluster of signs or symptoms’ . . . is a question of fact delegated to the VA . . . for consideration in the first instance.” Tadlock, 5 F.4th at 1338 (quoting 38 U.S.C. § 1117(a)(2)(B)); » HadIt.com For Veterans Who’ve Had It With The VA

by The Editor
September 30, 2021
0

Single Judge Application; a MUCMI is “a diagnosed illness without conclusive pathophysiology or etiology[] that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, ...

Single Judge Application; George v. McDonough, 991 F.3d 1227, 1229-30 (Fed. Cir. 2021) confirming that the law as it was understood at the time did not require VA to rebut the presumption of sound condition with clear and unmistakable evidence that the condition was not aggravated by service; 1970 presumption of sound condition; In 1970, VA’s implementing regulation did not require clear and unmistakable evidence of lack of aggravation by service for rebuttal. See 38 C.F.R. §3.304(b) (1970); Instead, if the presumption of sound condition applied, the burden fell on VA to rebut the presumption with clear and unmistakable evidence that an injury or disease that manifested in service preexisted service. See George, 991 F.3d at 1229-30 (noting that VA’s 1970 version of the regulation, permitting VA to rebut the presumption of soundness with only clear and unmistakable evidence that the disorder preexisted service, prevailed until 2003); 38 U.S.C. § 311 (1970) (current version § 1111); » HadIt.com For Veterans Who’ve Had It With The VA

Single Judge Application; George v. McDonough, 991 F.3d 1227, 1229-30 (Fed. Cir. 2021) confirming that the law as it was understood at the time did not require VA to rebut the presumption of sound condition with clear and unmistakable evidence that the condition was not aggravated by service; 1970 presumption of sound condition; In 1970, VA’s implementing regulation did not require clear and unmistakable evidence of lack of aggravation by service for rebuttal. See 38 C.F.R. §3.304(b) (1970); Instead, if the presumption of sound condition applied, the burden fell on VA to rebut the presumption with clear and unmistakable evidence that an injury or disease that manifested in service preexisted service. See George, 991 F.3d at 1229-30 (noting that VA’s 1970 version of the regulation, permitting VA to rebut the presumption of soundness with only clear and unmistakable evidence that the disorder preexisted service, prevailed until 2003); 38 U.S.C. § 311 (1970) (current version § 1111); » HadIt.com For Veterans Who’ve Had It With The VA

by The Editor
September 28, 2021
0

Single Judge Application; George v. McDonough, 991 F.3d 1227, 1229-30 (Fed. Cir. 2021) confirming that the law as it was understood at the time did not require VA to rebut ...

Panel Application; Mitchell v. Shinseki, 25 Vet.App. 32, 44 (2011) (holding that, for a VA joints exam to be adequate, the examiner must portray the extent of functional loss or limitation due to pain and the other factors set forth in 38 C.F.R. §§ 4.40 and 4.45, including pain with repetitive use and on flare-up); see also Sharp v. Shulkin, 29 Vet.App. 26, 34-35 (2017) (holding that an examiner’s refusal to offer a flare opinion without resort to speculation is adequate only when it is “clear that [it] is predicated on a lack of knowledge among the ‘medical community at large’ and not the insufficient knowledge of the specific examiner”); the Board erred by relying on the September 2017 VA exam, which they consider inadequate because the examiner did not adequately address why he could not opine, without resorting to speculation, whether pain weakness, fatigability, or incoordination limited Mr. Andrews’s functional ability with repeated use over time.15; » HadIt.com For Veterans Who’ve Had It With The VA

Panel Application; Mitchell v. Shinseki, 25 Vet.App. 32, 44 (2011) (holding that, for a VA joints exam to be adequate, the examiner must portray the extent of functional loss or limitation due to pain and the other factors set forth in 38 C.F.R. §§ 4.40 and 4.45, including pain with repetitive use and on flare-up); see also Sharp v. Shulkin, 29 Vet.App. 26, 34-35 (2017) (holding that an examiner’s refusal to offer a flare opinion without resort to speculation is adequate only when it is “clear that [it] is predicated on a lack of knowledge among the ‘medical community at large’ and not the insufficient knowledge of the specific examiner”); the Board erred by relying on the September 2017 VA exam, which they consider inadequate because the examiner did not adequately address why he could not opine, without resorting to speculation, whether pain weakness, fatigability, or incoordination limited Mr. Andrews’s functional ability with repeated use over time.15; » HadIt.com For Veterans Who’ve Had It With The VA

by The Editor
September 22, 2021
0

Panel Application; Mitchell v. Shinseki, 25 Vet.App. 32, 44 (2011) (holding that, for a VA joints exam to be adequate, the examiner must portray the extent of functional loss ...

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