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Tag: VetApp

Single Judge Application; Spellers v. Wilkie; the Court held in Spellers v. Wilkie, with respect to the diagnostic code for incomplete paralysis of the sciatic nerve, which also rates the condition based solely on the level of severity (i.e., mild, moderate, severe), the “lack of objective criteria for differentiating between the specified severity levels means that any evidence indicating severity of incomplete paralysis of the sciatic nerve is necessarily relevant to the schedular rating level.” 30 Vet.App. 211, 219 (2018) (emphasis omitted);

Single Judge Application; Spellers v. Wilkie; the Court held in Spellers v. Wilkie, with respect to the diagnostic code for incomplete paralysis of the sciatic nerve, which also rates the condition based solely on the level of severity (i.e., mild, moderate, severe), the “lack of objective criteria for differentiating between the specified severity levels means that any evidence indicating severity of incomplete paralysis of the sciatic nerve is necessarily relevant to the schedular rating level.” 30 Vet.App. 211, 219 (2018) (emphasis omitted);

by The Editor
October 17, 2021
0

Single Judge Application; Spellers v. Wilkie; the Court held in Spellers v. Wilkie, with respect to the diagnostic code for incomplete paralysis of the sciatic nerve, which also rates ...

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; Davis v. McDonough, 34 Vet.App. 131, 132 (2021) (“Under 38 C.F.R. § 3.156(b), when new and material evidence is submitted within the appeal period following a VA decision on a claim, the evidence must be considered in connection with that claim,” and “if VA fails to undertake that consideration, the claim remains pending until it does. Thus, when this rule is implicated, it can require the assignment of effective dates for benefits ultimately granted that are much earlier than would otherwise obtain.”);

Single Judge Application; Davis v. McDonough, 34 Vet.App. 131, 132 (2021) (“Under 38 C.F.R. § 3.156(b), when new and material evidence is submitted within the appeal period following a VA decision on a claim, the evidence must be considered in connection with that claim,” and “if VA fails to undertake that consideration, the claim remains pending until it does. Thus, when this rule is implicated, it can require the assignment of effective dates for benefits ultimately granted that are much earlier than would otherwise obtain.”);

by The Editor
October 16, 2021
0

Single Judge Application; Davis v. McDonough, 34 Vet.App. 131, 132 (2021) (“Under 38 C.F.R. § 3.156(b), when new and material evidence is submitted within the appeal period following a ...

Single Judge Application; Bailey v. Wilkie, 33 Vet.App. 188, 204 (2021) (noting that an RO decision granting benefits could not divest the Board of jurisdiction over the initial appeal and that, on remand, the appellant was entitled to have his appeal processed to completion thus preserving the possibility of an earlier effective date);

Single Judge Application; Bailey v. Wilkie, 33 Vet.App. 188, 204 (2021) (noting that an RO decision granting benefits could not divest the Board of jurisdiction over the initial appeal and that, on remand, the appellant was entitled to have his appeal processed to completion thus preserving the possibility of an earlier effective date);

by The Editor
October 16, 2021
0

Single Judge Application; Bailey v. Wilkie, 33 Vet.App. 188, 204 (2021) (noting that an RO decision granting benefits could not divest the Board of jurisdiction over the initial appeal ...

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 ...

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 ...

Single Judge Application; Shoemaker v. Derwinski, 3 Vet.App. 248, 253 (1992); Bankhead, 29 Vet.App. at 18-19; the criteria listed by the Board are those pertaining to the 100% rating under § 4.130, not the 70% rating the Board mislabeled it as. As a result, the Board didn’t properly consider if the veteran’s PTSD was more severe than a 50% rating but less severe than a 100% rating. When the veteran specifically requests an increase in his or her rating, the Board has an obligation to explain not only why the symptoms comport with the assigned rating criteria, but also why they don’t comport with the next higher disability rating criteria. Shoemaker v. Derwinski, 3 Vet.App. 248, 253 (1992); Bankhead, 29 Vet.App. at 18-19.;

Single Judge Application; Shoemaker v. Derwinski, 3 Vet.App. 248, 253 (1992); Bankhead, 29 Vet.App. at 18-19; the criteria listed by the Board are those pertaining to the 100% rating under § 4.130, not the 70% rating the Board mislabeled it as. As a result, the Board didn’t properly consider if the veteran’s PTSD was more severe than a 50% rating but less severe than a 100% rating. When the veteran specifically requests an increase in his or her rating, the Board has an obligation to explain not only why the symptoms comport with the assigned rating criteria, but also why they don’t comport with the next higher disability rating criteria. Shoemaker v. Derwinski, 3 Vet.App. 248, 253 (1992); Bankhead, 29 Vet.App. at 18-19.;

by The Editor
October 12, 2021
0

Single Judge Application; Shoemaker v. Derwinski, 3 Vet.App. 248, 253 (1992); Bankhead, 29 Vet.App. at 18-19; the criteria listed by the Board are those pertaining to the 100% rating ...

Single Judge Application; hearing loss effective date; Swain v. McDonald, 27 Vet.App. 219 (2015); in Swain v. McDonald the Court explained that 38 C.F.R. § 4.85 does not govern the effective date for hearing loss ratings. See 27 Vet.App. at 224-25. The Court held that the effective date for hearing loss may be earlier than the date of an audiometric test that satisfies the criteria under 38 C.F.R. § 4.85, and that, “unless otherwise specifically noted in the statute or regulation, [38 U.S.C. § 5110(b)(3)] and [38 C.F.R.] § 3.400 govern the effective date for disability benefits claims.” Id. at 225. The Board noted some of Mr. Garcia’s statements about his worsening hearing loss before 2019, but the Board denied entitlement to a compensable rating before June 11, 2019, seemingly because the record did not contain any other “audiometric testing results during this portion of the appeal period which comply with 38 C.F.R. § 4.85 for rating purposes.” R. at 11.; » HadIt.com For Veterans Who’ve Had It With The VA

Single Judge Application; hearing loss effective date; Swain v. McDonald, 27 Vet.App. 219 (2015); in Swain v. McDonald the Court explained that 38 C.F.R. § 4.85 does not govern the effective date for hearing loss ratings. See 27 Vet.App. at 224-25. The Court held that the effective date for hearing loss may be earlier than the date of an audiometric test that satisfies the criteria under 38 C.F.R. § 4.85, and that, “unless otherwise specifically noted in the statute or regulation, [38 U.S.C. § 5110(b)(3)] and [38 C.F.R.] § 3.400 govern the effective date for disability benefits claims.” Id. at 225. The Board noted some of Mr. Garcia’s statements about his worsening hearing loss before 2019, but the Board denied entitlement to a compensable rating before June 11, 2019, seemingly because the record did not contain any other “audiometric testing results during this portion of the appeal period which comply with 38 C.F.R. § 4.85 for rating purposes.” R. at 11.; » HadIt.com For Veterans Who’ve Had It With The VA

by The Editor
October 6, 2021
0

Single Judge Application; hearing loss effective date; Swain v. McDonald, 27 Vet.App. 219 (2015); in Swain v. McDonald the Court explained that 38 C.F.R. § 4.85 does not govern ...

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 ...

Single Judge Application; a MUCMI is “a diagnosed illness without conclusive pathophysiology or etiology[] that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.” 38 C.F.R. § 3.317(a)(2)(ii). “Under the proper interpretation of the law, an illness is a MUCMI where either the etiology or pathophysiology of the illness is inconclusive.” Stewart v. Wilkie, 30 Vet.App. 383, 390 (2018); “Conversely, a multisymptom illness is not a MUCMI where both the etiology and the pathophysiology of the illness are partially understood.” Id.; “[W]hether an illness is ‘defined by a cluster of signs or symptoms’ . . . is a question of fact delegated to the VA . . . for consideration in the first instance.” Tadlock, 5 F.4th at 1338 (quoting 38 U.S.C. § 1117(a)(2)(B)); » HadIt.com For Veterans Who’ve Had It With The VA

Single Judge Application; a MUCMI is “a diagnosed illness without conclusive pathophysiology or etiology[] that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.” 38 C.F.R. § 3.317(a)(2)(ii). “Under the proper interpretation of the law, an illness is a MUCMI where either the etiology or pathophysiology of the illness is inconclusive.” Stewart v. Wilkie, 30 Vet.App. 383, 390 (2018); “Conversely, a multisymptom illness is not a MUCMI where both the etiology and the pathophysiology of the illness are partially understood.” Id.; “[W]hether an illness is ‘defined by a cluster of signs or symptoms’ . . . is a question of fact delegated to the VA . . . for consideration in the first instance.” Tadlock, 5 F.4th at 1338 (quoting 38 U.S.C. § 1117(a)(2)(B)); » HadIt.com For Veterans Who’ve Had It With The VA

by The Editor
September 30, 2021
0

Single Judge Application; a MUCMI is “a diagnosed illness without conclusive pathophysiology or etiology[] that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, ...

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