Tag: speculation

Single Judge Application; Board’s use of double negatives (“not shown” and “unable”); In Bowling, the Court found that the Board’s use of double negatives (“not shown” and “unable”) to suggest the feasibility of some of the veteran’s past occupations revealed that the Board relied on the lack of evidence rather than on any affirmative evidence of employability and that, with no such evidence, the Board’s speculation could not sustain a TDIU denial. Id. at 8.; » 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