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Tag: extent

Secretary concession SMC part of every claim for increase; The Secretary further concedes that because SMC is an issue within an increased rating claim, the Board should have considered whether the appellant filed a claim for an increased disability rating for his left eye condition earlier than January 2014 or, at a minimum, considered 38 C.F.R. § 3.400(o)(2), which allows under certain circumstances an effective date up to 1 year prior to the date of a claim for increase. Secretary’s Br. at 9.; the Secretary further concedes that, to the extent that SMC may be considered part of a claim for increased compensation, see Akles v. Derwinski, 1 Vet.App. 118, 121 (1991) (concluding that the RO “should have inferred from the veteran’s request for an increase in benefits . . . a request for [SMC] whether or not it was placed in issue by the veteran”), the Board should have addressed whether the appellant sought SMC through an increased rating claim for his left eye disability prior to January 2014 or whether 38 C.F.R. § 3.400(o)(2) applied. See Secretary’s Br. at 8-10. The Court will accept the Secretary’s concession, ;

Secretary concession SMC part of every claim for increase; The Secretary further concedes that because SMC is an issue within an increased rating claim, the Board should have considered whether the appellant filed a claim for an increased disability rating for his left eye condition earlier than January 2014 or, at a minimum, considered 38 C.F.R. § 3.400(o)(2), which allows under certain circumstances an effective date up to 1 year prior to the date of a claim for increase. Secretary’s Br. at 9.; the Secretary further concedes that, to the extent that SMC may be considered part of a claim for increased compensation, see Akles v. Derwinski, 1 Vet.App. 118, 121 (1991) (concluding that the RO “should have inferred from the veteran’s request for an increase in benefits . . . a request for [SMC] whether or not it was placed in issue by the veteran”), the Board should have addressed whether the appellant sought SMC through an increased rating claim for his left eye disability prior to January 2014 or whether 38 C.F.R. § 3.400(o)(2) applied. See Secretary’s Br. at 8-10. The Court will accept the Secretary’s concession, ;

by The Editor
July 13, 2022
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; Skip to content Posted in Uncategorized Tagged Case Law Post navigation Thanks for letting us know! This is how we ...

Single Judge Application; Pain limits ability to function; Deluca factors; in rating musculoskeletal disabilities, the Board must rely on VA examinations that consider whether and to what extent pain, or other factors listed in 38 C.F.R. §§ 4.40 and 4.45 (the Deluca factors), limit a veteran’s ability to function. Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017). If pain causes functional loss, it “must be rated at the same level as if that functional loss were caused by some other factor.” Mitchell v. Shinseki, 25 Vet.App. 32, 37, (2011). For an examination to adequately capture functional loss, the examiner must opine whether pain could significantly limit functional ability and, if feasible, portray that opinion “‘in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.’” Sharp, 29 Vet.App. at 32 (quoting Deluca v. Brown, 8 Vet.App. 202, 206 (1995)). If an examiner is unable to offer a nonspeculative estimate of a veteran’s functional loss due to pain, the examiner must explain why such an opinion cannot be offered. Id. at 32;

Single Judge Application; Pain limits ability to function; Deluca factors; in rating musculoskeletal disabilities, the Board must rely on VA examinations that consider whether and to what extent pain, or other factors listed in 38 C.F.R. §§ 4.40 and 4.45 (the Deluca factors), limit a veteran’s ability to function. Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017). If pain causes functional loss, it “must be rated at the same level as if that functional loss were caused by some other factor.” Mitchell v. Shinseki, 25 Vet.App. 32, 37, (2011). For an examination to adequately capture functional loss, the examiner must opine whether pain could significantly limit functional ability and, if feasible, portray that opinion “‘in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.’” Sharp, 29 Vet.App. at 32 (quoting Deluca v. Brown, 8 Vet.App. 202, 206 (1995)). If an examiner is unable to offer a nonspeculative estimate of a veteran’s functional loss due to pain, the examiner must explain why such an opinion cannot be offered. Id. at 32;

by The Editor
November 7, 2021
0

Single Judge Application; Pain limits ability to function; Deluca factors; in rating musculoskeletal disabilities, the Board must rely on VA examinations that consider whether and to what extent pain, ...

Single Judge Application; 38 C.F.R. § 20.1303; applicability Board decisions; Board decisions are “considered binding only with regard to the specific case decided.” 38 C.F.R. § 20.1303 (2019); prior decisions in other appeals “may be considered in a case to the extent that they reasonably relate to the case.” 38 C.F.R. § 20.1303;

Single Judge Application; 38 C.F.R. § 20.1303; applicability Board decisions; Board decisions are “considered binding only with regard to the specific case decided.” 38 C.F.R. § 20.1303 (2019); prior decisions in other appeals “may be considered in a case to the extent that they reasonably relate to the case.” 38 C.F.R. § 20.1303;

by The Editor
October 27, 2021
0

Single Judge Application; 38 C.F.R. § 20.1303; applicability Board decisions; Board decisions are “considered binding only with regard to the specific case decided.” 38 C.F.R. § 20.1303 (2019); prior ...

Panel Application; Mitchell v. Shinseki, 25 Vet.App. 32, 44 (2011) (holding that, for a VA joints exam to be adequate, the examiner must portray the extent of functional loss or limitation due to pain and the other factors set forth in 38 C.F.R. §§ 4.40 and 4.45, including pain with repetitive use and on flare-up); see also Sharp v. Shulkin, 29 Vet.App. 26, 34-35 (2017) (holding that an examiner’s refusal to offer a flare opinion without resort to speculation is adequate only when it is “clear that [it] is predicated on a lack of knowledge among the ‘medical community at large’ and not the insufficient knowledge of the specific examiner”); the Board erred by relying on the September 2017 VA exam, which they consider inadequate because the examiner did not adequately address why he could not opine, without resorting to speculation, whether pain weakness, fatigability, or incoordination limited Mr. Andrews’s functional ability with repeated use over time.15; » HadIt.com For Veterans Who’ve Had It With The VA

Panel Application; Mitchell v. Shinseki, 25 Vet.App. 32, 44 (2011) (holding that, for a VA joints exam to be adequate, the examiner must portray the extent of functional loss or limitation due to pain and the other factors set forth in 38 C.F.R. §§ 4.40 and 4.45, including pain with repetitive use and on flare-up); see also Sharp v. Shulkin, 29 Vet.App. 26, 34-35 (2017) (holding that an examiner’s refusal to offer a flare opinion without resort to speculation is adequate only when it is “clear that [it] is predicated on a lack of knowledge among the ‘medical community at large’ and not the insufficient knowledge of the specific examiner”); the Board erred by relying on the September 2017 VA exam, which they consider inadequate because the examiner did not adequately address why he could not opine, without resorting to speculation, whether pain weakness, fatigability, or incoordination limited Mr. Andrews’s functional ability with repeated use over time.15; » HadIt.com For Veterans Who’ve Had It With The VA

by The Editor
September 22, 2021
0

Panel Application; Mitchell v. Shinseki, 25 Vet.App. 32, 44 (2011) (holding that, for a VA joints exam to be adequate, the examiner must portray the extent of functional loss ...

Single Judge Application; substantive negative evidence; Fountain v. McDonald, 27 Vet.App. 258, 272 (2015); Horn v. Shinseki, 25 Vet.App. 231, 239 (2012); to the extent that the Board’s analysis may be read as implicitly finding him not credible because his service records did not confirm his testimony regarding the locations of his barracks and the flightline relative to the Udorn Air Base perimeter, the Board generally must “first establish a proper foundation for drawing inferences against a claimant from an absence of documentation.” Fountain v. McDonald, 27 Vet.App. 258, 272 (2015); Notably, a lack of confirmation is not the same as a contradiction of the claimant’s assertions. See Horn v. Shinseki, 25 Vet.App. 231, 239 (2012) (observing that the absence of evidence is not necessarily substantive negative evidence). And here, the Board did not explain whether and why it would be expected to find corroboration of the barracks and flightline locations relative to the perimeter in Mr. Cornelious’s service records. Thus, to the extent that the Board drew a negative inference from the lack of corroborating service records and relied on that inference to find Mr. Cornelious not credible, the Court concludes that the Board failed to lay a proper foundation. See Fountain, 27 Vet.App. at 272; Horn, 25 Vet.App. at 239;

Single Judge Application; substantive negative evidence; Fountain v. McDonald, 27 Vet.App. 258, 272 (2015); Horn v. Shinseki, 25 Vet.App. 231, 239 (2012); to the extent that the Board’s analysis may be read as implicitly finding him not credible because his service records did not confirm his testimony regarding the locations of his barracks and the flightline relative to the Udorn Air Base perimeter, the Board generally must “first establish a proper foundation for drawing inferences against a claimant from an absence of documentation.” Fountain v. McDonald, 27 Vet.App. 258, 272 (2015); Notably, a lack of confirmation is not the same as a contradiction of the claimant’s assertions. See Horn v. Shinseki, 25 Vet.App. 231, 239 (2012) (observing that the absence of evidence is not necessarily substantive negative evidence). And here, the Board did not explain whether and why it would be expected to find corroboration of the barracks and flightline locations relative to the perimeter in Mr. Cornelious’s service records. Thus, to the extent that the Board drew a negative inference from the lack of corroborating service records and relied on that inference to find Mr. Cornelious not credible, the Court concludes that the Board failed to lay a proper foundation. See Fountain, 27 Vet.App. at 272; Horn, 25 Vet.App. at 239;

by The Editor
August 29, 2021
0

Single Judge Application; substantive negative evidence; Fountain v. McDonald, 27 Vet.App. 258, 272 (2015); Horn v. Shinseki, 25 Vet.App. 231, 239 (2012); to the extent that the Board’s analysis may ...

Single Judge Application; In Rizzo v. Shinseki, the U.S. Court of Appeals for the Federal Circuit previously held that VA need not affirmatively establish an examiner’s competency. 580 F.3d 1288, 1291 (Fed. Cir. 2009), overruled by Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) (finding that the presumption of competency requires nothing more than is required for veterans in other contexts—i.e., simply that the veteran raise the issue—and that, once the veteran raises such a challenge, the presumption has no further effect and VA must satisfy its burden of persuasion as to the examiner’s qualifications). But, to the extent that Francway did not overrule the holding in Rizzo, the issue here is not the examiner’s competency; In addition, in Sickels v. Shinseki, the Federal Circuit found unpersuasive the veteran’s argument—that he should not be required to assert that the examiner was insufficiently informed—because, like in Rizzo, he had not raised that concern before the Board. 643 F.3d 1362, 1366 (Fed. Cir. 2011) (finding that an examiner’s competency and whether the examiner was sufficiently informed were similar in that a veteran must challenge both and, because Mr. Sickels had not done so, the Board was not required to address the issue of whether the examiner understood the adjudicator’s instructions);

Single Judge Application; In Rizzo v. Shinseki, the U.S. Court of Appeals for the Federal Circuit previously held that VA need not affirmatively establish an examiner’s competency. 580 F.3d 1288, 1291 (Fed. Cir. 2009), overruled by Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) (finding that the presumption of competency requires nothing more than is required for veterans in other contexts—i.e., simply that the veteran raise the issue—and that, once the veteran raises such a challenge, the presumption has no further effect and VA must satisfy its burden of persuasion as to the examiner’s qualifications). But, to the extent that Francway did not overrule the holding in Rizzo, the issue here is not the examiner’s competency; In addition, in Sickels v. Shinseki, the Federal Circuit found unpersuasive the veteran’s argument—that he should not be required to assert that the examiner was insufficiently informed—because, like in Rizzo, he had not raised that concern before the Board. 643 F.3d 1362, 1366 (Fed. Cir. 2011) (finding that an examiner’s competency and whether the examiner was sufficiently informed were similar in that a veteran must challenge both and, because Mr. Sickels had not done so, the Board was not required to address the issue of whether the examiner understood the adjudicator’s instructions);

by The Editor
August 23, 2021
0

Single Judge Application; In Rizzo v. Shinseki, the U.S. Court of Appeals for the Federal Circuit previously held that VA need not affirmatively establish an examiner’s competency. 580 F.3d 1288, ...

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