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Tag: Single

Single Judge Application; Murphy v. Wilkie, 983 F.3d 1313, 1318 (Fed. Cir. 2020) (citing Boggs v. Peake, 520 F.3d 1330, 1336 (Fed.Cir. 2008)); see Ephraim v. Brown, 82 F.3d 399, 401-02 (Fed. Cir. 1996); In Murphy v. Wilkie, the Federal Circuit endorsed Clemons’s lenity rule and its teaching that a sympathetic reading of the scope of a veteran’s claim “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; Murphy v. Wilkie, 983 F.3d 1313, 1318 (Fed. Cir. 2020) (citing Boggs v. Peake, 520 F.3d 1330, 1336 (Fed.Cir. 2008)); see Ephraim v. Brown, 82 F.3d 399, 401-02 (Fed. Cir. 1996); In Murphy v. Wilkie, the Federal Circuit endorsed Clemons’s lenity rule and its teaching that a sympathetic reading of the scope of a veteran’s claim “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
September 1, 2021
0

Single Judge Application; Murphy v. Wilkie, 983 F.3d 1313, 1318 (Fed. Cir. 2020) (citing Boggs v. Peake, 520 F.3d 1330, 1336 (Fed.Cir. 2008)); see Ephraim v. Brown, 82 F.3d 399, ...

Single Judge Application; § 5110; equitable tolling; On June 17, 2021, the Federal Circuit issued Arellano, which declined to revisit the rule that “equitable tolling is inapplicable to § 5110’s effective date rules.” Arellano v. McDonough, __ F.3d. , , 2021 WL 2460647at *18 (Fed. Cir. June 17, 2021) (6-6 decision) (Chen, J, concurring) (referencing Andrews v. Principi, 351 F.3d 1134, 1137-38 (Fed. Cir. 2003));

Single Judge Application; § 5110; equitable tolling; On June 17, 2021, the Federal Circuit issued Arellano, which declined to revisit the rule that “equitable tolling is inapplicable to § 5110’s effective date rules.” Arellano v. McDonough, __ F.3d. , , 2021 WL 2460647at *18 (Fed. Cir. June 17, 2021) (6-6 decision) (Chen, J, concurring) (referencing Andrews v. Principi, 351 F.3d 1134, 1137-38 (Fed. Cir. 2003));

by The Editor
August 31, 2021
0

Single Judge Application; § 5110; equitable tolling; On June 17, 2021, the Federal Circuit issued Arellano, which declined to revisit the rule that “equitable tolling is inapplicable to § 5110’s ...

Single Judge Application; “The [U.S. Court of Appeals for the] Federal Circuit made it clear that the Board is not bound by [M21-1] ; Overton, 30 Vet.App. at 264 (“[T]he Board is required to discuss any relevant provisions contained in the M21-1 . . . , but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an M21-l provision . . . .”); It is unclear how the Board came to this conclusion that consistent and prolonged exposure was required because that language is not found within the M21-1 provision that was provided to appellant as a reference for establishing presumptive service connection; Andrews v. McDonough, __ Vet.App. , , No. 19-0352, 2021 U.S. App. Vet. Claims LEXIS 1091, at *17-20 (June 22, 2021) (“[T]he VA ma y [not] tell a veteran how to establish a service connection for his [condition] only to move the goalposts once he has done so. This kind of goalpost-moving does not reflect an optimal mode of administrative decisionmaking.” (quoting Hudick v. Wilkie, 755 F. App’x 998, 1006-07 (Fed. Cir. 2018)));

Single Judge Application; “The [U.S. Court of Appeals for the] Federal Circuit made it clear that the Board is not bound by [M21-1] ; Overton, 30 Vet.App. at 264 (“[T]he Board is required to discuss any relevant provisions contained in the M21-1 . . . , but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an M21-l provision . . . .”); It is unclear how the Board came to this conclusion that consistent and prolonged exposure was required because that language is not found within the M21-1 provision that was provided to appellant as a reference for establishing presumptive service connection; Andrews v. McDonough, __ Vet.App. , , No. 19-0352, 2021 U.S. App. Vet. Claims LEXIS 1091, at *17-20 (June 22, 2021) (“[T]he VA ma y [not] tell a veteran how to establish a service connection for his [condition] only to move the goalposts once he has done so. This kind of goalpost-moving does not reflect an optimal mode of administrative decisionmaking.” (quoting Hudick v. Wilkie, 755 F. App’x 998, 1006-07 (Fed. Cir. 2018)));

by The Editor
August 30, 2021
0

Single Judge Application; “The Federal Circuit made it clear that the Board is not bound by ; Overton, 30 Vet.App. at 264 (“he Board is required to discuss any relevant ...

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; writ; The Board’s decision to remand this matter, in order to obtain additional, and impliedly negative evidence, is an exercise of “naked and arbitrary power.” See Yick Wo v. Hopkins, 118 U.S. 356, 366 (1886) (Matthews, J.); In Wolfe v. Wilkie, 32 Vet.App. 1 (2009), we issued a writ even though the petitioner had the ability to appeal the matter to the Court. The circumstances here are similar in that regard and equally as egregious. This is illustrative of systemic legal errors that can be corrected in the context of a petition. See Mathis v. Shulkin, 137 S. Ct. 1994, 1995 (2017)(Sotomayor, J., concurring) (noting the continuing “dialogue over whether the current system for adjudicating veterans disability claims can be squared with VA’s statutory obligations to assist veterans in the development of their disability claims.”); (Gorsuch, J., dissenting)(“Congress imposed on the VA an affirmative duty to assist—not impair—veterans seeking evidence for their disability claims.”). The conduct of VA here is certainly emblematic of a systemic, bureaucratic disorder, which we are uniquely ordained to deal with;

Single Judge Application; writ; The Board’s decision to remand this matter, in order to obtain additional, and impliedly negative evidence, is an exercise of “naked and arbitrary power.” See Yick Wo v. Hopkins, 118 U.S. 356, 366 (1886) (Matthews, J.); In Wolfe v. Wilkie, 32 Vet.App. 1 (2009), we issued a writ even though the petitioner had the ability to appeal the matter to the Court. The circumstances here are similar in that regard and equally as egregious. This is illustrative of systemic legal errors that can be corrected in the context of a petition. See Mathis v. Shulkin, 137 S. Ct. 1994, 1995 (2017)(Sotomayor, J., concurring) (noting the continuing “dialogue over whether the current system for adjudicating veterans disability claims can be squared with VA’s statutory obligations to assist veterans in the development of their disability claims.”); (Gorsuch, J., dissenting)(“Congress imposed on the VA an affirmative duty to assist—not impair—veterans seeking evidence for their disability claims.”). The conduct of VA here is certainly emblematic of a systemic, bureaucratic disorder, which we are uniquely ordained to deal with;

by The Editor
August 23, 2021
0

Single Judge Application; writ; The Board’s decision to remand this matter, in order to obtain additional, and impliedly negative evidence, is an exercise of “naked and arbitrary power.” See Yick ...

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, ...

Single Judge Application; failure define term or degree; Mr. Thornton cites Johnson v. Wilkie, 30 Vet.App. 245, 255 (2018), arguing that the Board must disclose the standard under which it is operating. Appellant’s Br. at 26. But Johnson focused on a situation where the Board failed to define a term of degree (specifically, “very frequent”) that could be applied inconsistently across similar cases without a clear definition. 30 Vet.App. at 255;

Single Judge Application; failure define term or degree; Mr. Thornton cites Johnson v. Wilkie, 30 Vet.App. 245, 255 (2018), arguing that the Board must disclose the standard under which it is operating. Appellant’s Br. at 26. But Johnson focused on a situation where the Board failed to define a term of degree (specifically, “very frequent”) that could be applied inconsistently across similar cases without a clear definition. 30 Vet.App. at 255;

by The Editor
August 23, 2021
0

Single Judge Application; failure define term or degree; Mr. Thornton cites Johnson v. Wilkie, 30 Vet.App. 245, 255 (2018), arguing that the Board must disclose the standard under which it ...

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