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Tag: specific

Single Judge Application; Wait v. Wilkie, 33 Vet.App. (2020); The Court held in Wait v. Wilkie, 33 Vet.App. 8, 17 (2020), that “[t]o establish the presence of a disability . . . there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity, which may include showing manifestations of a similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person.”;

Single Judge Application; Wait v. Wilkie, 33 Vet.App. (2020); The Court held in Wait v. Wilkie, 33 Vet.App. 8, 17 (2020), that “[t]o establish the presence of a disability . . . there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity, which may include showing manifestations of a similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person.”;

by The Editor
July 15, 2022
0

Designated for electronic publication onlyUNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNo. 19-9062ANDREW M. THORPE, APPELLANT,V.DENIS MCDONOUGH,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before TOTH, Judge.MEMORANDUM DECISIONNote: Pursuant to U.S. Vet. App. R. ...

Single Judge Application; 38 C.F.R. § 20.1303; applicability Board decisions; Board decisions are “considered binding only with regard to the specific case decided.” 38 C.F.R. § 20.1303 (2019); prior decisions in other appeals “may be considered in a case to the extent that they reasonably relate to the case.” 38 C.F.R. § 20.1303;

Single Judge Application; 38 C.F.R. § 20.1303; applicability Board decisions; Board decisions are “considered binding only with regard to the specific case decided.” 38 C.F.R. § 20.1303 (2019); prior decisions in other appeals “may be considered in a case to the extent that they reasonably relate to the case.” 38 C.F.R. § 20.1303;

by The Editor
October 27, 2021
0

Single Judge Application; 38 C.F.R. § 20.1303; applicability Board decisions; Board decisions are “considered binding only with regard to the specific case decided.” 38 C.F.R. § 20.1303 (2019); prior ...

FedCir; Regents is an application of the APA’s “arbitrary, capricious” standard of review, 5 U.S.C. § 706(2)(A), and this case is governed by 38 U.S.C. § 7261(a)(3)(A), which uses the same “arbitrary, capricious” language; we have used APA jurisprudence in applying the Title 38 provision. See Euzebio v. McDonough, 989 F.3d 1305, 1322–23 (Fed. Cir. 2021) (“The Veterans Court must also review Board and VA determinations for ‘abuse of discretion’ and ‘arbitrary [and] capricious’ decision making, including whether the Board or VA[] entirely failed to consider an important aspect of the problem . . . .” (quoting 38 U.S.C. § 7261(a)(3)(A) and State Farm, 463 U.S. at 43)); see also Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 432 n.2 (2011) (“[T]he Veterans Court’s scope of review, § 7261, is similar to that of an Article III court reviewing agency action under the [APA] . . . .”); Whether an agency has failed to address an important aspect of a problem, and is arbitrary and capricious for that reason, can turn on the specific statutes and regulations that govern the agency, see Oregon Natural Re-sources Council v. Thomas, 92 F.3d 792, 798 (9th Cir.1996), but that does not distinguish 38 U.S.C. § 7261 from 5 U.S.C. § 706;

FedCir; Regents is an application of the APA’s “arbitrary, capricious” standard of review, 5 U.S.C. § 706(2)(A), and this case is governed by 38 U.S.C. § 7261(a)(3)(A), which uses the same “arbitrary, capricious” language; we have used APA jurisprudence in applying the Title 38 provision. See Euzebio v. McDonough, 989 F.3d 1305, 1322–23 (Fed. Cir. 2021) (“The Veterans Court must also review Board and VA determinations for ‘abuse of discretion’ and ‘arbitrary [and] capricious’ decision making, including whether the Board or VA[] entirely failed to consider an important aspect of the problem . . . .” (quoting 38 U.S.C. § 7261(a)(3)(A) and State Farm, 463 U.S. at 43)); see also Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 432 n.2 (2011) (“[T]he Veterans Court’s scope of review, § 7261, is similar to that of an Article III court reviewing agency action under the [APA] . . . .”); Whether an agency has failed to address an important aspect of a problem, and is arbitrary and capricious for that reason, can turn on the specific statutes and regulations that govern the agency, see Oregon Natural Re-sources Council v. Thomas, 92 F.3d 792, 798 (9th Cir.1996), but that does not distinguish 38 U.S.C. § 7261 from 5 U.S.C. § 706;

by The Editor
October 26, 2021
0

FedCir; Regents is an application of the APA’s “arbitrary, capricious” standard of review, 5 U.S.C. § 706(2)(A), and this case is governed by 38 U.S.C. § 7261(a)(3)(A), which uses ...

Decision Assessment Document; Shea v. Wilkie, June 20, 2019, 926 F. 3d 1362 (Fed. Cir. 2019); where claimant’s filings refer to specific medical records, and those records contain a reasonable ascertainable diagnosis of a disability, the claimant has raised an informal claim for that disability under 38 C.F.R. 3.155(a);

Decision Assessment Document; Shea v. Wilkie, June 20, 2019, 926 F. 3d 1362 (Fed. Cir. 2019); where claimant’s filings refer to specific medical records, and those records contain a reasonable ascertainable diagnosis of a disability, the claimant has raised an informal claim for that disability under 38 C.F.R. 3.155(a);

by The Editor
October 24, 2021
0

Decision Assessment Document; Shea v. Wilkie, June 20, 2019, 926 F. 3d 1362 (Fed. Cir. 2019); where claimant’s filings refer to specific medical records, and those records contain a ...

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; 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 ...

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 ...

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