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Tag: Claims

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; “The [U.S. Court of Appeals for the] Federal Circuit made it clear that the Board is not bound by [M21-1] ; Overton, 30 Vet.App. at 264 (“[T]he Board is required to discuss any relevant provisions contained in the M21-1 . . . , but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an M21-l provision . . . .”); It is unclear how the Board came to this conclusion that consistent and prolonged exposure was required because that language is not found within the M21-1 provision that was provided to appellant as a reference for establishing presumptive service connection; Andrews v. McDonough, __ Vet.App. , , No. 19-0352, 2021 U.S. App. Vet. Claims LEXIS 1091, at *17-20 (June 22, 2021) (“[T]he VA ma y [not] tell a veteran how to establish a service connection for his [condition] only to move the goalposts once he has done so. This kind of goalpost-moving does not reflect an optimal mode of administrative decisionmaking.” (quoting Hudick v. Wilkie, 755 F. App’x 998, 1006-07 (Fed. Cir. 2018)));

Single Judge Application; “The [U.S. Court of Appeals for the] Federal Circuit made it clear that the Board is not bound by [M21-1] ; Overton, 30 Vet.App. at 264 (“[T]he Board is required to discuss any relevant provisions contained in the M21-1 . . . , but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an M21-l provision . . . .”); It is unclear how the Board came to this conclusion that consistent and prolonged exposure was required because that language is not found within the M21-1 provision that was provided to appellant as a reference for establishing presumptive service connection; Andrews v. McDonough, __ Vet.App. , , No. 19-0352, 2021 U.S. App. Vet. Claims LEXIS 1091, at *17-20 (June 22, 2021) (“[T]he VA ma y [not] tell a veteran how to establish a service connection for his [condition] only to move the goalposts once he has done so. This kind of goalpost-moving does not reflect an optimal mode of administrative decisionmaking.” (quoting Hudick v. Wilkie, 755 F. App’x 998, 1006-07 (Fed. Cir. 2018)));

by The Editor
August 30, 2021
0

Single Judge Application; “The Federal Circuit made it clear that the Board is not bound by ; Overton, 30 Vet.App. at 264 (“he Board is required to discuss any relevant ...

Single Judge Application; writ; The Board’s decision to remand this matter, in order to obtain additional, and impliedly negative evidence, is an exercise of “naked and arbitrary power.” See Yick Wo v. Hopkins, 118 U.S. 356, 366 (1886) (Matthews, J.); In Wolfe v. Wilkie, 32 Vet.App. 1 (2009), we issued a writ even though the petitioner had the ability to appeal the matter to the Court. The circumstances here are similar in that regard and equally as egregious. This is illustrative of systemic legal errors that can be corrected in the context of a petition. See Mathis v. Shulkin, 137 S. Ct. 1994, 1995 (2017)(Sotomayor, J., concurring) (noting the continuing “dialogue over whether the current system for adjudicating veterans disability claims can be squared with VA’s statutory obligations to assist veterans in the development of their disability claims.”); (Gorsuch, J., dissenting)(“Congress imposed on the VA an affirmative duty to assist—not impair—veterans seeking evidence for their disability claims.”). The conduct of VA here is certainly emblematic of a systemic, bureaucratic disorder, which we are uniquely ordained to deal with;

Single Judge Application; writ; The Board’s decision to remand this matter, in order to obtain additional, and impliedly negative evidence, is an exercise of “naked and arbitrary power.” See Yick Wo v. Hopkins, 118 U.S. 356, 366 (1886) (Matthews, J.); In Wolfe v. Wilkie, 32 Vet.App. 1 (2009), we issued a writ even though the petitioner had the ability to appeal the matter to the Court. The circumstances here are similar in that regard and equally as egregious. This is illustrative of systemic legal errors that can be corrected in the context of a petition. See Mathis v. Shulkin, 137 S. Ct. 1994, 1995 (2017)(Sotomayor, J., concurring) (noting the continuing “dialogue over whether the current system for adjudicating veterans disability claims can be squared with VA’s statutory obligations to assist veterans in the development of their disability claims.”); (Gorsuch, J., dissenting)(“Congress imposed on the VA an affirmative duty to assist—not impair—veterans seeking evidence for their disability claims.”). The conduct of VA here is certainly emblematic of a systemic, bureaucratic disorder, which we are uniquely ordained to deal with;

by The Editor
August 23, 2021
0

Single Judge Application; writ; The Board’s decision to remand this matter, in order to obtain additional, and impliedly negative evidence, is an exercise of “naked and arbitrary power.” See Yick ...

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