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Tag: lay

Single Judge Application; flare-up; this Court’s caselaw and VA guidelines requiring VA medical examiners, in situations when direct observation is not possible, to opine on and quantify the effect of pain on functioning based on other evidence. See, e.g., Sharp v. Shulkin, 29 Vet.App. 26, 35 (2017) (instructing VA examiners, when conducting examinations that do not take place during a flare-up, to “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans”);

Single Judge Application; flare-up; this Court’s caselaw and VA guidelines requiring VA medical examiners, in situations when direct observation is not possible, to opine on and quantify the effect of pain on functioning based on other evidence. See, e.g., Sharp v. Shulkin, 29 Vet.App. 26, 35 (2017) (instructing VA examiners, when conducting examinations that do not take place during a flare-up, to “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans”);

by The Editor
November 7, 2021
0

Single Judge Application; flare-up; this Court’s caselaw and VA guidelines requiring VA medical examiners, in situations when direct observation is not possible, to opine on and quantify the effect ...

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; 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”);

by The Editor
October 28, 2021
0

Single Judge Application; This Court has held that “ay testimony is competent . . . to establish the presence of observable symptomatology and ‘may provide sufficient support for a ...

Single Judge Application; tinnitus; Murphy v. Wilkie, 983 F.3d 1313, 1318 (Fed. Cir. 2020) (endorsing Clemons and explaining that “VA shall afford lenity to a veteran’s filings; evidence developed in processing that claim; claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim; The Board did not, however, address the reasonably raised issue of whether the veteran’s specific claim for tinnitus encompassed a claim for a vestibular condition manifesting in dizziness, as required by Clemons. In Clemons, the Court explained that, because lay claimants generally lack the medical knowledge to narrow the universe of a claim to a particular diagnosis, VA “should construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim.” 23 Vet.App. at 5. “[T]he claimant’s intent in filing a claim is paramount to construing its breadth,” and factors relevant to that inquiry include “the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim.” Id. The Court ultimately held that the Board may not deny a claim because a lay claimant’s hypothesized diagnosis proves incorrect; rather, the Board must “confront[] the difficult questions of what current []condition actually exist[s] and whether it was incurred in or aggravated by service.” Id. at 6. In so doing, the Board must make “affirmative finding[s] as to the nature of the [claimant’s] condition.” Id. In short, “the fact that the [claimant] may be wrong about the nature of his [or her] condition does not relieve the Secretary of his duty to properly adjudicate the claim.” Id.; see generally Murphy v. Wilkie, 983 F.3d 1313, 1318 (Fed. Cir. 2020) (endorsing Clemons and explaining that “VA shall afford lenity to a veteran’s filings that fail to enumerate precisely the disabilities included within the bounds of a claim,” which “is best accomplished by looking to the veteran’s reasonable expectations in filing the claim and the evidence developed in processing that claim”).;

Single Judge Application; tinnitus; Murphy v. Wilkie, 983 F.3d 1313, 1318 (Fed. Cir. 2020) (endorsing Clemons and explaining that “VA shall afford lenity to a veteran’s filings; evidence developed in processing that claim; claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim; The Board did not, however, address the reasonably raised issue of whether the veteran’s specific claim for tinnitus encompassed a claim for a vestibular condition manifesting in dizziness, as required by Clemons. In Clemons, the Court explained that, because lay claimants generally lack the medical knowledge to narrow the universe of a claim to a particular diagnosis, VA “should construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim.” 23 Vet.App. at 5. “[T]he claimant’s intent in filing a claim is paramount to construing its breadth,” and factors relevant to that inquiry include “the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim.” Id. The Court ultimately held that the Board may not deny a claim because a lay claimant’s hypothesized diagnosis proves incorrect; rather, the Board must “confront[] the difficult questions of what current []condition actually exist[s] and whether it was incurred in or aggravated by service.” Id. at 6. In so doing, the Board must make “affirmative finding[s] as to the nature of the [claimant’s] condition.” Id. In short, “the fact that the [claimant] may be wrong about the nature of his [or her] condition does not relieve the Secretary of his duty to properly adjudicate the claim.” Id.; see generally Murphy v. Wilkie, 983 F.3d 1313, 1318 (Fed. Cir. 2020) (endorsing Clemons and explaining that “VA shall afford lenity to a veteran’s filings that fail to enumerate precisely the disabilities included within the bounds of a claim,” which “is best accomplished by looking to the veteran’s reasonable expectations in filing the claim and the evidence developed in processing that claim”).;

by The Editor
October 16, 2021
0

Single Judge Application; tinnitus; Murphy v. Wilkie, 983 F.3d 1313, 1318 (Fed. Cir. 2020) (endorsing Clemons and explaining that “VA shall afford lenity to a veteran’s filings; evidence developed ...

Single Judge Application; Tedesco v. Wilkie; implicit bias against lay evidence; The Board’s analysis is substantially similar to the Board’s analysis in Tedesco v. Wilkie, where the Board noted an appellant’s reports of knee instability but found medical evidence more probative. 31 Vet.App. 360, 367 (2019). We ultimately remanded that claim, stating that “[t]he Board fail[ed] to explain why the medical findings are more probative, other than to assert that the ‘specific medical tests . . . are designed to reveal instability . . . of the joints.’” Id. Just as in Tedesco, the Board’s statement here, that “[t]he DBQs were completed by medical professionals who formulated their conclusions based on a physical examination, review of the record, and interview of the Veteran,” fails to suggest any actual reasons or bases for finding the lay statements outweighed by “significant objective evidence,” other than an implicit bias against lay evidence and a preference for medical evidence. R. at 8. The Board also failed to explain why it considered the appellant’s lay statements “generalized.”;

Single Judge Application; Tedesco v. Wilkie; implicit bias against lay evidence; The Board’s analysis is substantially similar to the Board’s analysis in Tedesco v. Wilkie, where the Board noted an appellant’s reports of knee instability but found medical evidence more probative. 31 Vet.App. 360, 367 (2019). We ultimately remanded that claim, stating that “[t]he Board fail[ed] to explain why the medical findings are more probative, other than to assert that the ‘specific medical tests . . . are designed to reveal instability . . . of the joints.’” Id. Just as in Tedesco, the Board’s statement here, that “[t]he DBQs were completed by medical professionals who formulated their conclusions based on a physical examination, review of the record, and interview of the Veteran,” fails to suggest any actual reasons or bases for finding the lay statements outweighed by “significant objective evidence,” other than an implicit bias against lay evidence and a preference for medical evidence. R. at 8. The Board also failed to explain why it considered the appellant’s lay statements “generalized.”;

by The Editor
October 15, 2021
0

Single Judge Application; Tedesco v. Wilkie; implicit bias against lay evidence; The Board’s analysis is substantially similar to the Board’s analysis in Tedesco v. Wilkie, where the Board noted ...

“[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 ...

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 ...

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