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Tag: connection

VA OCONUS Connection : Veterans

VA OCONUS Connection : Veterans

by The Editor
July 22, 2022
0

Update: Overseas Military Service Coordinators Due to COVID-19, Overseas Military Service Coordinators (OMSCs) have extended virtual support operations to overseas Veterans, Service members, and their dependents through October 1, 2022. ...

Single Judge Application; Hensley prohibits the Board from denying service connection for hearing loss solely because the audiometric test results did not constitute a disability under § 3.385 during service. 5 Vet.App. 155, 160 (1993); Hensley does not prohibit examiners from discussing in-service audiometric test results or relying on audiometric results that reveal normal hearing to form their opinion if they also consider other factors. Id.;

Single Judge Application; Hensley prohibits the Board from denying service connection for hearing loss solely because the audiometric test results did not constitute a disability under § 3.385 during service. 5 Vet.App. 155, 160 (1993); Hensley does not prohibit examiners from discussing in-service audiometric test results or relying on audiometric results that reveal normal hearing to form their opinion if they also consider other factors. Id.;

by The Editor
November 13, 2021
0

Single Judge Application; Hensley prohibits the Board from denying service connection for hearing loss solely because the audiometric test results did not constitute a disability under § 3.385 during ...

Panel Application; section 1155 directs the Secretary to establish in the rating schedule “ten grades of disability” for evaluating the severity of such conditions, the Secretary has provided less than ten levels of disability for most of the conditions listed in the schedule. See generally 38 C.F.R. §§ 4.71a – 4.150 (1992). Therefore, the schedular ratings established by the Secretary for compensation purposes may not in all cases provide a sufficiently comprehensive basis for determining when a measured worsening of a particular veteran’s condition in service constitutes an “increase in disability” for purposes of establishing service connection through aggravation under section 1153. This would seem to be so where the next higher rating is more than one decile greater. Furthermore, the rating-schedule provisions may not in all cases provide the most accurate or most logical basis for determining whether there has been an “increase in disability” during service. For example, with respect to organic mental disorders and psychoneurotic disorders, the rating schedule provides for disability ratings based on a finding that the condition causes “total”, “severe”, “considerable”, “definite”, or “mild” social and industrial impairment. See 38 C.F.R. § 4.132, Diagnostic Codes 9300-9411 (1992);

Panel Application; section 1155 directs the Secretary to establish in the rating schedule “ten grades of disability” for evaluating the severity of such conditions, the Secretary has provided less than ten levels of disability for most of the conditions listed in the schedule. See generally 38 C.F.R. §§ 4.71a – 4.150 (1992). Therefore, the schedular ratings established by the Secretary for compensation purposes may not in all cases provide a sufficiently comprehensive basis for determining when a measured worsening of a particular veteran’s condition in service constitutes an “increase in disability” for purposes of establishing service connection through aggravation under section 1153. This would seem to be so where the next higher rating is more than one decile greater. Furthermore, the rating-schedule provisions may not in all cases provide the most accurate or most logical basis for determining whether there has been an “increase in disability” during service. For example, with respect to organic mental disorders and psychoneurotic disorders, the rating schedule provides for disability ratings based on a finding that the condition causes “total”, “severe”, “considerable”, “definite”, or “mild” social and industrial impairment. See 38 C.F.R. § 4.132, Diagnostic Codes 9300-9411 (1992);

by The Editor
October 28, 2021
0

Panel Application; section 1155 directs the Secretary to establish in the rating schedule “ten grades of disability” for evaluating the severity of such conditions, the Secretary has provided less ...

Single Judge Application; This Court has held that “[l]ay testimony is competent . . . to establish the presence of observable symptomatology and ‘may provide sufficient support for a claim of service connection.’” Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (quoting Layno v. Brown, 6 Vet.App. 465, 469 (1994)). As this Court has often noted, “symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet.App. 488, 496 (1997); see also Wilson v. Derwinski, 2 Vet.App. 15, 19 (1991) (noting that the “regulation requires continuity of symptomatology, not continuity of treatment”);

Single Judge Application; This Court has held that “[l]ay testimony is competent . . . to establish the presence of observable symptomatology and ‘may provide sufficient support for a claim of service connection.’” Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (quoting Layno v. Brown, 6 Vet.App. 465, 469 (1994)). As this Court has often noted, “symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet.App. 488, 496 (1997); see also Wilson v. Derwinski, 2 Vet.App. 15, 19 (1991) (noting that the “regulation requires continuity of symptomatology, not continuity of treatment”);

by The Editor
October 28, 2021
0

Single Judge Application; This Court has held that “ay testimony is competent . . . to establish the presence of observable symptomatology and ‘may provide sufficient support for a ...

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 ...

Single Judge Application; Wise v. Shinseki, 26 Vet.App. 517, 531 (2014); apply the correct standard of proof for determining that issue; The examiner rejected the scientific evidence because it did not definitely establish a causal link as a generally accepted principle. However, “Congress has not mandated that a medical principle have reached the level of scientific consensus to support a claim for VA benefits.” Wise v. Shinseki, 26 Vet.App. 517, 531 (2014). Although the examiner rejected the scientific research evidence, “this did not relieve the Board of its obligation to consider and discuss the potentially favorable medical literature of record” that supported Mr. Lardinois’s theory of service connection and “to apply the correct standard of proof for determining that issue.” Id. at 531-32; see R. at 353-37 (scientific literature submitted by Mr. Lardinois). However, the Board did not discuss the scientific research evidence submitted by Mr. Lardinois; instead, it adopted the examiner’s opinion and his rejection of the scientific evidence without addressing or reconciling that opinion with the proper adjudicative standard of proof; » HadIt.com For Veterans Who’ve Had It With The VA

Single Judge Application; Wise v. Shinseki, 26 Vet.App. 517, 531 (2014); apply the correct standard of proof for determining that issue; The examiner rejected the scientific evidence because it did not definitely establish a causal link as a generally accepted principle. However, “Congress has not mandated that a medical principle have reached the level of scientific consensus to support a claim for VA benefits.” Wise v. Shinseki, 26 Vet.App. 517, 531 (2014). Although the examiner rejected the scientific research evidence, “this did not relieve the Board of its obligation to consider and discuss the potentially favorable medical literature of record” that supported Mr. Lardinois’s theory of service connection and “to apply the correct standard of proof for determining that issue.” Id. at 531-32; see R. at 353-37 (scientific literature submitted by Mr. Lardinois). However, the Board did not discuss the scientific research evidence submitted by Mr. Lardinois; instead, it adopted the examiner’s opinion and his rejection of the scientific evidence without addressing or reconciling that opinion with the proper adjudicative standard of proof; » HadIt.com For Veterans Who’ve Had It With The VA

by The Editor
September 22, 2021
0

Single Judge Application; Wise v. Shinseki, 26 Vet.App. 517, 531 (2014); apply the correct standard of proof for determining that issue; The examiner rejected the scientific evidence because it ...

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 ...

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