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Tag: Holding

Single Judge Application; Geib, 733 F.3d at 1354 (establishing that “applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”); Board was therefore prohibited from characterizing their silence on the issue as substantive evidence against entitlement to TDIU; AZ v. Shinseki, 731 F.3d 1303, 1317 (Fed. Cir. 2013) (holding that “where a condition would not normally have been recorded, the Board may not consider the absence of [administrative record] evidence as substantive negative evidence of that condition.”); “[T]he absence of evidence on a particular question cannot be construed as negative evidence against a claimant unless there is a foundation in the record that demonstrates that such silence has a tendency to prove or disprove a relevant fact.” Delrio, 32 Vet.App. at 240 (citing Fountain v. McDonald, 27 Vet.App. 258, 272 (2015));

Single Judge Application; Geib, 733 F.3d at 1354 (establishing that “applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”); Board was therefore prohibited from characterizing their silence on the issue as substantive evidence against entitlement to TDIU; AZ v. Shinseki, 731 F.3d 1303, 1317 (Fed. Cir. 2013) (holding that “where a condition would not normally have been recorded, the Board may not consider the absence of [administrative record] evidence as substantive negative evidence of that condition.”); “[T]he absence of evidence on a particular question cannot be construed as negative evidence against a claimant unless there is a foundation in the record that demonstrates that such silence has a tendency to prove or disprove a relevant fact.” Delrio, 32 Vet.App. at 240 (citing Fountain v. McDonald, 27 Vet.App. 258, 272 (2015));

by The Editor
November 10, 2021
0

Single Judge Application; Geib, 733 F.3d at 1354 (establishing that “applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”); Board was therefore ...

Single Judge Application; reason and bases; Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001); failure discuss all the evidence favorable to a claimant; Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994); the Board cannot “evade [its] statutory responsibility [to state the reasons or bases for its conclusions] merely by adopting [a medical opinion] as its own” where the medical opinion “fails to discuss all the evidence which appears to support [the] appellant’s position.” Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994). Gabrielson does not require that a medical opinion discuss all the evidence favorable to a claimant, only that the Board, in relying on an opinion that does not do so, discuss any additional favorable evidence to comply with its duty to provide an adequate statement of reasons or bases for its decision. See id.; 38 U.S.C. § 7104(d)(1); see also Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001) (holding that, although the Board must consider all of the evidence of record, “a discussion of all evidence is not required when . . . the Board has supported its decision with thorough reasons or bases regarding the relevant evidence”);

Single Judge Application; reason and bases; Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001); failure discuss all the evidence favorable to a claimant; Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994); the Board cannot “evade [its] statutory responsibility [to state the reasons or bases for its conclusions] merely by adopting [a medical opinion] as its own” where the medical opinion “fails to discuss all the evidence which appears to support [the] appellant’s position.” Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994). Gabrielson does not require that a medical opinion discuss all the evidence favorable to a claimant, only that the Board, in relying on an opinion that does not do so, discuss any additional favorable evidence to comply with its duty to provide an adequate statement of reasons or bases for its decision. See id.; 38 U.S.C. § 7104(d)(1); see also Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001) (holding that, although the Board must consider all of the evidence of record, “a discussion of all evidence is not required when . . . the Board has supported its decision with thorough reasons or bases regarding the relevant evidence”);

by The Editor
October 30, 2021
0

Single Judge Application; reason and bases; Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001); failure discuss all the evidence favorable to a claimant; Gabrielson v. Brown, 7 Vet.App. ...

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;

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;

by The Editor
October 22, 2021
0

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 ...

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; deficient reasons and bases; It is the Board’s responsibility as factfinder to assess and weigh the evidence.18 Here, we simply do not know the weight, if any, the Board gave this evidence in assigning a rating for appellant’s GERD. It is important for the Board to make such a finding in the first instance.19 We recognize that the Secretary offers several arguments about why extraschedular referral is not warranted for appellant’s GERD. However, it is ultimately not his prerogative to provide an explanation that the Board did not. As we have often said, the Secretary cannot make up for the Board’s deficient statement of reasons or bases.20; 19 See Tadlock v. McDonough, 5 F.4th 1327, 1337-38 (Fed. Cir. 2021) (“Where additional findings of fact are necessary regarding mattes open to debate, the proper action is for the Veterans Court is to remand to the Board for consideration of those facts in the first instance.”).; 20 See In re Lee, 277 F.3d 1338, 1345-46 (Fed. Cir. 2002) (“‘[C]ourts may not accept appellate counsel’s post hoc rationalization for agency action.’” (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962))); McCray v. Wilkie, 31 Vet.App. 243, 258 (2019) (“[T]he Secretary’s impermissible post-hoc rationalization cannot make up for shortcomings in the Board’s assessment.”); Simmons v. Wilkie, 30 Vet.App. 267, 277 (2018) (holding that the “Court cannot accept the Secretary’s post-hoc rationalizations” to cure the Board’s reasons-or-bases errors), aff’d, 964 F.3d 1381 (Fed. Cir. 2020); Smith v. Nicholson, 19 Vet.App. 63, 73 (2015) (“[I]t is not the task of the Secretary to rewrite the Board’s decision through his pleadings filed in this Court.”).;

Single Judge Application; deficient reasons and bases; It is the Board’s responsibility as factfinder to assess and weigh the evidence.18 Here, we simply do not know the weight, if any, the Board gave this evidence in assigning a rating for appellant’s GERD. It is important for the Board to make such a finding in the first instance.19 We recognize that the Secretary offers several arguments about why extraschedular referral is not warranted for appellant’s GERD. However, it is ultimately not his prerogative to provide an explanation that the Board did not. As we have often said, the Secretary cannot make up for the Board’s deficient statement of reasons or bases.20; 19 See Tadlock v. McDonough, 5 F.4th 1327, 1337-38 (Fed. Cir. 2021) (“Where additional findings of fact are necessary regarding mattes open to debate, the proper action is for the Veterans Court is to remand to the Board for consideration of those facts in the first instance.”).; 20 See In re Lee, 277 F.3d 1338, 1345-46 (Fed. Cir. 2002) (“‘[C]ourts may not accept appellate counsel’s post hoc rationalization for agency action.’” (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962))); McCray v. Wilkie, 31 Vet.App. 243, 258 (2019) (“[T]he Secretary’s impermissible post-hoc rationalization cannot make up for shortcomings in the Board’s assessment.”); Simmons v. Wilkie, 30 Vet.App. 267, 277 (2018) (holding that the “Court cannot accept the Secretary’s post-hoc rationalizations” to cure the Board’s reasons-or-bases errors), aff’d, 964 F.3d 1381 (Fed. Cir. 2020); Smith v. Nicholson, 19 Vet.App. 63, 73 (2015) (“[I]t is not the task of the Secretary to rewrite the Board’s decision through his pleadings filed in this Court.”).;

by The Editor
October 13, 2021
0

Single Judge Application; deficient reasons and bases; It is the Board’s responsibility as factfinder to assess and weigh the evidence.18 Here, we simply do not know the weight, if ...

“[P]rivate medical evidence since the initial exam that indicates the veteran’s medical history [] include[s] cold injury residuals [is] based upon his verbal history—not the evidence of record.” R. at 3583. There is no doubt that the RO’s distinction between the “evidence of record” and the veteran’s own statements was completely misleading at best. See 38 U.S.C.§ 5107(b) (requiring the Secretary to “consider all information and lay and medical evidence of record in a case”); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (noting that VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim to disability or death benefits); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (explaining that””lay evidence is one type of evidence that must be considered, if submitted, when a veteran’s claim seeks disability benefits” and holding that, in certain situations, “competent lay evidence can be sufficient in and of itself” to establish entitlement to such benefits). The language used in the request indicates that the veteran’s own statements are not “evidence of record” and would require at least corroboration in service medical records to be credible and probative. That is contrary to Buchanan, 451 F.3d at 1335 (finding improper the Board’s determination that ‘lay statements lacked credibility merely because they were not corroborated by contemporaneous [SMRs]”).; » HadIt.com For Veterans Who’ve Had It With The VA

“[P]rivate medical evidence since the initial exam that indicates the veteran’s medical history [] include[s] cold injury residuals [is] based upon his verbal history—not the evidence of record.” R. at 3583. There is no doubt that the RO’s distinction between the “evidence of record” and the veteran’s own statements was completely misleading at best. See 38 U.S.C.§ 5107(b) (requiring the Secretary to “consider all information and lay and medical evidence of record in a case”); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (noting that VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim to disability or death benefits); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (explaining that””lay evidence is one type of evidence that must be considered, if submitted, when a veteran’s claim seeks disability benefits” and holding that, in certain situations, “competent lay evidence can be sufficient in and of itself” to establish entitlement to such benefits). The language used in the request indicates that the veteran’s own statements are not “evidence of record” and would require at least corroboration in service medical records to be credible and probative. That is contrary to Buchanan, 451 F.3d at 1335 (finding improper the Board’s determination that ‘lay statements lacked credibility merely because they were not corroborated by contemporaneous [SMRs]”).; » HadIt.com For Veterans Who’ve Had It With The VA

by The Editor
October 5, 2021
0

Single Judge Application; Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); The RO’s request distinguished between the veteran’s statements and the other evidence of record: “rivate medical ...

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; 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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