Tag: determining

Single Judge Application; Ortiz v. McDonough; The Federal Circuit comprehensively considered whether the 2010 amendment to 38 C.F.R. § 3.304(f) was liberalizing, ultimately determining that it was, Ortiz v. McDonough, 6 F.4th at 1275-1283, 2021 U.S. App. LEXIS 22305, at *16-38; The Federal Circuit specifically disapproved of this Court’s decision in Foreman, Ortiz v. McDonough, 6 F.4th at 1275-1283, 2021 U.S. App. LEXIS 22305, at *35-38;
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);

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 ...

The examination report must include • an up-to-date, brief, medical and industrial history from the date of discharge or last examination • a record of subjective complaints • a complete description of objective findings, stated in concrete terms • a diagnosis for each described condition[] • answer(s) to any question specifically included in the examination request • opinions specifically requested in the exam request • a diagnosis or notation that a chronic disease or disability was ruled out for each disability, complaint, or symptom listed on the examination request, and • the clinical findings required by the rating schedule for the evaluation of the specific disability being claimed. (For example, if a joint is being examined, the range of motion in degrees should be noted as part of the examination. If a cardiovascular condition is being examined, the metabolic equivalent expanded before fatigue, chest pain, and so on, result should be expressed.); M21-1MR, pt. III, subpt. iv, ch. 3, sec. D(f); In response to the Court’s inquiry, counsel for the Secretary stated that this provision is intended to assist VA adjudicators in determining what constitutes a sufficient report of examination for compensation and pension purposes, but conceded that a particular VA medical record may still qualify as a “report of examination” under § 3.157(b)(1) even if it is not as detailed as required by this M21-1MR provision.;

The examination report must include • an up-to-date, brief, medical and industrial history from the date of discharge or last examination • a record of subjective complaints • a complete description of objective findings, stated in concrete terms • a diagnosis for each described condition[] • answer(s) to any question specifically included in the examination request • opinions specifically requested in the exam request • a diagnosis or notation that a chronic disease or disability was ruled out for each disability, complaint, or symptom listed on the examination request, and • the clinical findings required by the rating schedule for the evaluation of the specific disability being claimed. (For example, if a joint is being examined, the range of motion in degrees should be noted as part of the examination. If a cardiovascular condition is being examined, the metabolic equivalent expanded before fatigue, chest pain, and so on, result should be expressed.); M21-1MR, pt. III, subpt. iv, ch. 3, sec. D(f); In response to the Court’s inquiry, counsel for the Secretary stated that this provision is intended to assist VA adjudicators in determining what constitutes a sufficient report of examination for compensation and pension purposes, but conceded that a particular VA medical record may still qualify as a “report of examination” under § 3.157(b)(1) even if it is not as detailed as required by this M21-1MR provision.;

Panel Application; the Veterans Benefits Administration Adjudication Procedures Manual (M21-1MR) are intended to describe the type of VA medical record that qualifies as a “report of examination.” In particular, ...

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