Veterans Day Message from President Trump

Veterans Day Message from President Trump

August 1, 2022
Navajo Code Talker Samuel Sandoval dies

Navajo Code Talker Samuel Sandoval dies

August 1, 2022
#VeteranOfTheDay Marine Corps Veteran Victor “Brute” Harold Krulak

#VeteranOfTheDay Marine Corps Veteran Victor “Brute” Harold Krulak

August 1, 2022
Trump supporters attempt world record boat parade near Clearwater Beach

Trump supporters attempt world record boat parade near Clearwater Beach

August 1, 2022
Veteran honored for once-secret role in WWII ‘Ghost Army’

Veteran honored for once-secret role in WWII ‘Ghost Army’

August 1, 2022
Helping a Fellow Vet with Disability Claim : Veterans

Helping a Fellow Vet with Disability Claim : Veterans

July 31, 2022
Table Tennis 1. European Championship1995 Vienna (Wien)Veterans Orlovwki Dvoracek Tischtennis

Table Tennis 1. European Championship1995 Vienna (Wien)Veterans Orlovwki Dvoracek Tischtennis

July 31, 2022
Low-Cost Tech Shaping Modern Battlefield > U.S. Department of Defense > Defense Department News

Low-Cost Tech Shaping Modern Battlefield > U.S. Department of Defense > Defense Department News

July 31, 2022
The Army won’t lower its standards again to meet recruitment goals

The Army won’t lower its standards again to meet recruitment goals

July 31, 2022
Coast Guard veteran held without bail in ID theft mystery

Coast Guard veteran held without bail in ID theft mystery

July 31, 2022
British Normandy Memorial opens on D-Day anniversary

British Normandy Memorial opens on D-Day anniversary

July 31, 2022
Vietnam Veterans Memorial Wall Stories

Vietnam Veterans Memorial Wall Stories

July 31, 2022
Saturday, April 27, 2024
No Result
View All Result
No Result
View All Result

Tag: Secretary

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.;

by The Editor
October 19, 2021
0

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; 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; 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; 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 ...

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.” Clemons, 23 Vet.App. at 5. “[T]he claimant’s intent in filing a claim is paramount to construing its breadth.” Id. To effectuate that intent, “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.” Murphy, 983 F.3d at 1318. “[T]he 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.” Clemons, 23 Vet.App. at 6.; » HadIt.com For Veterans Who’ve Had It With The VA

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.” Clemons, 23 Vet.App. at 5. “[T]he claimant’s intent in filing a claim is paramount to construing its breadth.” Id. To effectuate that intent, “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.” Murphy, 983 F.3d at 1318. “[T]he 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.” Clemons, 23 Vet.App. at 6.; » HadIt.com For Veterans Who’ve Had It With The VA

by The Editor
October 3, 2021
0

Panel Application; Clemons; Murphy v. Wilkie Like the veteran in Clemons, Mr. Grimes “did not file a claim to receive benefits only for a particular diagnosis, but for the ...

Page 2 of 6 1 2 3 … 6
  • Trending
  • Comments
  • Latest
No Result
View All Result

198 Veterans News - Copyright AllRights Reserved.