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Tag: context

Single Judge Application; section 311 meant in 1981; CUE; presumption of soundness; The appellant argues that the Board erred in its determination that no CUE existed in the 1981 RO decision. Specifically, he contends that Wagner is an authoritative statement of what section 311 meant at the time of the 1981 RO decision. Appellant’s Brief (Br.) at 6. The Court agrees with the appellant that the Federal Circuit’s interpretation of section 1111 in Wagner is an authoritative statement of what that statute has meant since the date of enactment in 1958. See Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994) (“A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.”); Patrick v. Shinseki, 668 F.3d at 1325, 1329 (Fed. Cir. 2011) (“We made clear . . . , that ‘[u]nlike changes in regulations and statutes, which are prospective, our interpretation of a statute is retrospective in that it explains what the statute has meant since the date of enactment.’” (quoting Patrick v. Nicholson, 242 F. App’x 695, 698 (Fed. Cir. 2007)(remanding for further consideration of CUE request using the correct standard articulated in Wagner and directing remand to Board, if necessary, to determine whether the Secretary has rebutted the presumption of soundness by providing clear and unmistakable evidence that the presumption has been rebutted))); see also Jordan v. Nicholson, 401 F.3d 1296, 1298 (Fed. Cir. 2005) (noting that the appellant’s CUE request challenges the validity of a regulation but does not question the correct legal standard under the statute, and that “Wagner governs that issue”). Thus, the Court agrees with the appellant that the Board erred when it concluded that he could not challenge the correct legal standard that applies under section 1111 in the CUE context.;

Single Judge Application; section 311 meant in 1981; CUE; presumption of soundness; The appellant argues that the Board erred in its determination that no CUE existed in the 1981 RO decision. Specifically, he contends that Wagner is an authoritative statement of what section 311 meant at the time of the 1981 RO decision. Appellant’s Brief (Br.) at 6. The Court agrees with the appellant that the Federal Circuit’s interpretation of section 1111 in Wagner is an authoritative statement of what that statute has meant since the date of enactment in 1958. See Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994) (“A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.”); Patrick v. Shinseki, 668 F.3d at 1325, 1329 (Fed. Cir. 2011) (“We made clear . . . , that ‘[u]nlike changes in regulations and statutes, which are prospective, our interpretation of a statute is retrospective in that it explains what the statute has meant since the date of enactment.’” (quoting Patrick v. Nicholson, 242 F. App’x 695, 698 (Fed. Cir. 2007)(remanding for further consideration of CUE request using the correct standard articulated in Wagner and directing remand to Board, if necessary, to determine whether the Secretary has rebutted the presumption of soundness by providing clear and unmistakable evidence that the presumption has been rebutted))); see also Jordan v. Nicholson, 401 F.3d 1296, 1298 (Fed. Cir. 2005) (noting that the appellant’s CUE request challenges the validity of a regulation but does not question the correct legal standard under the statute, and that “Wagner governs that issue”). Thus, the Court agrees with the appellant that the Board erred when it concluded that he could not challenge the correct legal standard that applies under section 1111 in the CUE context.;

by The Editor
November 12, 2021
0

Single Judge Application; section 311 meant in 1981; CUE; presumption of soundness; The appellant argues that the Board erred in its determination that no CUE existed in the 1981 ...

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; the ultimate “lesson of our cases is that, while a pro se claimant’s ‘claim must identify the benefit sought,’ the identification need not be explicit in the claim-stating documents, but can also be found indirectly through examination of evidence to which those documents themselves point when sympathetically read.” Shea v. Wilkie, 926 F.3d 1362, 1368–69 (Fed. Cir. 2019). Here, the claim-stating documents pointed, when sympathetically viewed, to a history of symptoms of abdominal pain that yielded a diagnosis of gastritis. And that’s not all. The veteran’s gastritis was expressly linked to service by VA’s own medical examiner—in the context of an examination sought by the Agency as part of the development of Mr. Martinelli’s other claims.; The Secretary says the veteran is out of his depth in suggesting to the Court that melatonin use indicates sleep issues. But even if that were true, the veteran retorts, the Secretary forgets the Court’s ability to take judicial notice of facts generally known. See Tagupa v. McDonald, 27 Vet.App. 95, 100-01 (2014). Indeed, one need look no further than a basic medical dictionary to conclude that his in-service prescription was favorable, material evidence. Melatonin is “a hormone . . . implicated in the regulation of sleep, mood, puberty, and ovarian cycles. It has been tried therapeutically for a number of conditions, including insomnia and jet lag.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1110 (33d ed. 2020). The Board has a responsibility to explain why it rejects favorable, material evidence. Garner v. Tran, 33 Vet.App. 241, 250 (2021).;

Single Judge Application; the ultimate “lesson of our cases is that, while a pro se claimant’s ‘claim must identify the benefit sought,’ the identification need not be explicit in the claim-stating documents, but can also be found indirectly through examination of evidence to which those documents themselves point when sympathetically read.” Shea v. Wilkie, 926 F.3d 1362, 1368–69 (Fed. Cir. 2019). Here, the claim-stating documents pointed, when sympathetically viewed, to a history of symptoms of abdominal pain that yielded a diagnosis of gastritis. And that’s not all. The veteran’s gastritis was expressly linked to service by VA’s own medical examiner—in the context of an examination sought by the Agency as part of the development of Mr. Martinelli’s other claims.; The Secretary says the veteran is out of his depth in suggesting to the Court that melatonin use indicates sleep issues. But even if that were true, the veteran retorts, the Secretary forgets the Court’s ability to take judicial notice of facts generally known. See Tagupa v. McDonald, 27 Vet.App. 95, 100-01 (2014). Indeed, one need look no further than a basic medical dictionary to conclude that his in-service prescription was favorable, material evidence. Melatonin is “a hormone . . . implicated in the regulation of sleep, mood, puberty, and ovarian cycles. It has been tried therapeutically for a number of conditions, including insomnia and jet lag.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1110 (33d ed. 2020). The Board has a responsibility to explain why it rejects favorable, material evidence. Garner v. Tran, 33 Vet.App. 241, 250 (2021).;

by The Editor
October 17, 2021
0

Single Judge Application; the ultimate “lesson of our cases is that, while a pro se claimant’s ‘claim must identify the benefit sought,’ the identification need not be explicit in ...

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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