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Tag: implicated

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));

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));

by The Editor
October 27, 2021
0

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 ...

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; Davis v. McDonough, 34 Vet.App. 131, 132 (2021) (“Under 38 C.F.R. § 3.156(b), when new and material evidence is submitted within the appeal period following a VA decision on a claim, the evidence must be considered in connection with that claim,” and “if VA fails to undertake that consideration, the claim remains pending until it does. Thus, when this rule is implicated, it can require the assignment of effective dates for benefits ultimately granted that are much earlier than would otherwise obtain.”);

Single Judge Application; Davis v. McDonough, 34 Vet.App. 131, 132 (2021) (“Under 38 C.F.R. § 3.156(b), when new and material evidence is submitted within the appeal period following a VA decision on a claim, the evidence must be considered in connection with that claim,” and “if VA fails to undertake that consideration, the claim remains pending until it does. Thus, when this rule is implicated, it can require the assignment of effective dates for benefits ultimately granted that are much earlier than would otherwise obtain.”);

by The Editor
October 16, 2021
0

Single Judge Application; Davis v. McDonough, 34 Vet.App. 131, 132 (2021) (“Under 38 C.F.R. § 3.156(b), when new and material evidence is submitted within the appeal period following a ...

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