Tag: Court

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.;

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; in Hensley v. Brown 5 Vet.App. 155, 157 (1993), the Court determined that the threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels reflect some degree of hearing loss. Review of the May 1974 separation examination reflects that the appellant’s right ear hearing threshold at 4000 Hertz is 25 decibels, R. at 1237, and pursuant to Hensley v. Brown, this does reveal some level of hearing loss – especially when compared to the May 1972 enlistment examination which reflects his right ear hearing threshold at 4000 Hertz to be 5 decibels, R. at 1241.;
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; the Board did not discuss the veteran’s contention that the RO’s request improperly described the contents of the record, constrained the August 2012 VA expert’s view of the file, and thereby essentially tainted the medical opinion; The Board is obligated to ensure that it provides appellants with fair process in the adjudication of their claims. See Smith v. Wilkie, 32 Vet.App. 332, 337 (2020) (citing Thurber v. Brown, 5 Vet.App. 119 (1993); Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993)); In Smith, this Court held that the principle of fair process applies throughout the process of evidentiary development and is implicated when “the Board fails to procure a medical opinion in ‘an impartial, unbiased, and neutral manner’ when the opinion request contains a Board member’s own negative linkage opinion or otherwise suggests that an examiner should reach a predetermined conclusion.” Id. at 337-38 (citing Austin v. Brown, 6 Vet.App. 547, 551-52 (1994));
FedCir; Regents is an application of the APA’s “arbitrary, capricious” standard of review, 5 U.S.C. § 706(2)(A), and this case is governed by 38 U.S.C. § 7261(a)(3)(A), which uses the same “arbitrary, capricious” language; we have used APA jurisprudence in applying the Title 38 provision. See Euzebio v. McDonough, 989 F.3d 1305, 1322–23 (Fed. Cir. 2021) (“The Veterans Court must also review Board and VA determinations for ‘abuse of discretion’ and ‘arbitrary [and] capricious’ decision making, including whether the Board or VA[] entirely failed to consider an important aspect of the problem . . . .” (quoting 38 U.S.C. § 7261(a)(3)(A) and State Farm, 463 U.S. at 43)); see also Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 432 n.2 (2011) (“[T]he Veterans Court’s scope of review, § 7261, is similar to that of an Article III court reviewing agency action under the [APA] . . . .”); Whether an agency has failed to address an important aspect of a problem, and is arbitrary and capricious for that reason, can turn on the specific statutes and regulations that govern the agency, see Oregon Natural Re-sources Council v. Thomas, 92 F.3d 792, 798 (9th Cir.1996), but that does not distinguish 38 U.S.C. § 7261 from 5 U.S.C. § 706;

FedCir; Regents is an application of the APA’s “arbitrary, capricious” standard of review, 5 U.S.C. § 706(2)(A), and this case is governed by 38 U.S.C. § 7261(a)(3)(A), which uses the same “arbitrary, capricious” language; we have used APA jurisprudence in applying the Title 38 provision. See Euzebio v. McDonough, 989 F.3d 1305, 1322–23 (Fed. Cir. 2021) (“The Veterans Court must also review Board and VA determinations for ‘abuse of discretion’ and ‘arbitrary [and] capricious’ decision making, including whether the Board or VA[] entirely failed to consider an important aspect of the problem . . . .” (quoting 38 U.S.C. § 7261(a)(3)(A) and State Farm, 463 U.S. at 43)); see also Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 432 n.2 (2011) (“[T]he Veterans Court’s scope of review, § 7261, is similar to that of an Article III court reviewing agency action under the [APA] . . . .”); Whether an agency has failed to address an important aspect of a problem, and is arbitrary and capricious for that reason, can turn on the specific statutes and regulations that govern the agency, see Oregon Natural Re-sources Council v. Thomas, 92 F.3d 792, 798 (9th Cir.1996), but that does not distinguish 38 U.S.C. § 7261 from 5 U.S.C. § 706;

FedCir; Regents is an application of the APA’s “arbitrary, capricious” standard of review, 5 U.S.C. § 706(2)(A), and this case is governed by 38 U.S.C. § 7261(a)(3)(A), which uses ...

Single Judge Application; English, 30 Vet.App. at 352-53; the Board must explain what it understands the terms “slight” and “moderate” in DC 5257 to mean so that appellant will understand why he was evaluated as he was, and the Court can review the Board’s decision; the Board focused on “objective evidence” in the VA medical opinions to support its conclusion that appellant’s instability was only “slight.”35 We can’t tell whether the Board faithfully applied English v. Wilkie or merely recited its holding concerning the lack of a requirement of objective evidence. On remand, the Board must ensure that it does not inappropriately downgrade evidence of instability merely because it is subjective. We stress again that it is inappropriate to categorically favor objective evidence of instability over subjective evidence of that condition. English, 30 Vet.App. at 352-53;
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