Tag: Credible

“[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

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 ...

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 ...