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Tag: evidence

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; section 311 meant in 1981; CUE; presumption of soundness; The appellant argues that the Board erred in its determination that no CUE existed in the 1981 RO decision. Specifically, he contends that Wagner is an authoritative statement of what section 311 meant at the time of the 1981 RO decision. Appellant’s Brief (Br.) at 6. The Court agrees with the appellant that the Federal Circuit’s interpretation of section 1111 in Wagner is an authoritative statement of what that statute has meant since the date of enactment in 1958. See Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994) (“A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.”); Patrick v. Shinseki, 668 F.3d at 1325, 1329 (Fed. Cir. 2011) (“We made clear . . . , that ‘[u]nlike changes in regulations and statutes, which are prospective, our interpretation of a statute is retrospective in that it explains what the statute has meant since the date of enactment.’” (quoting Patrick v. Nicholson, 242 F. App’x 695, 698 (Fed. Cir. 2007)(remanding for further consideration of CUE request using the correct standard articulated in Wagner and directing remand to Board, if necessary, to determine whether the Secretary has rebutted the presumption of soundness by providing clear and unmistakable evidence that the presumption has been rebutted))); see also Jordan v. Nicholson, 401 F.3d 1296, 1298 (Fed. Cir. 2005) (noting that the appellant’s CUE request challenges the validity of a regulation but does not question the correct legal standard under the statute, and that “Wagner governs that issue”). Thus, the Court agrees with the appellant that the Board erred when it concluded that he could not challenge the correct legal standard that applies under section 1111 in the CUE context.;

Single Judge Application; section 311 meant in 1981; CUE; presumption of soundness; The appellant argues that the Board erred in its determination that no CUE existed in the 1981 RO decision. Specifically, he contends that Wagner is an authoritative statement of what section 311 meant at the time of the 1981 RO decision. Appellant’s Brief (Br.) at 6. The Court agrees with the appellant that the Federal Circuit’s interpretation of section 1111 in Wagner is an authoritative statement of what that statute has meant since the date of enactment in 1958. See Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994) (“A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.”); Patrick v. Shinseki, 668 F.3d at 1325, 1329 (Fed. Cir. 2011) (“We made clear . . . , that ‘[u]nlike changes in regulations and statutes, which are prospective, our interpretation of a statute is retrospective in that it explains what the statute has meant since the date of enactment.’” (quoting Patrick v. Nicholson, 242 F. App’x 695, 698 (Fed. Cir. 2007)(remanding for further consideration of CUE request using the correct standard articulated in Wagner and directing remand to Board, if necessary, to determine whether the Secretary has rebutted the presumption of soundness by providing clear and unmistakable evidence that the presumption has been rebutted))); see also Jordan v. Nicholson, 401 F.3d 1296, 1298 (Fed. Cir. 2005) (noting that the appellant’s CUE request challenges the validity of a regulation but does not question the correct legal standard under the statute, and that “Wagner governs that issue”). Thus, the Court agrees with the appellant that the Board erred when it concluded that he could not challenge the correct legal standard that applies under section 1111 in the CUE context.;

by The Editor
November 12, 2021
0

Single Judge Application; section 311 meant in 1981; CUE; presumption of soundness; The appellant argues that the Board erred in its determination that no CUE existed in the 1981 ...

Single Judge Application; Geib, 733 F.3d at 1354 (establishing that “applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”); Board was therefore prohibited from characterizing their silence on the issue as substantive evidence against entitlement to TDIU; AZ v. Shinseki, 731 F.3d 1303, 1317 (Fed. Cir. 2013) (holding that “where a condition would not normally have been recorded, the Board may not consider the absence of [administrative record] evidence as substantive negative evidence of that condition.”); “[T]he absence of evidence on a particular question cannot be construed as negative evidence against a claimant unless there is a foundation in the record that demonstrates that such silence has a tendency to prove or disprove a relevant fact.” Delrio, 32 Vet.App. at 240 (citing Fountain v. McDonald, 27 Vet.App. 258, 272 (2015));

Single Judge Application; Geib, 733 F.3d at 1354 (establishing that “applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”); Board was therefore prohibited from characterizing their silence on the issue as substantive evidence against entitlement to TDIU; AZ v. Shinseki, 731 F.3d 1303, 1317 (Fed. Cir. 2013) (holding that “where a condition would not normally have been recorded, the Board may not consider the absence of [administrative record] evidence as substantive negative evidence of that condition.”); “[T]he absence of evidence on a particular question cannot be construed as negative evidence against a claimant unless there is a foundation in the record that demonstrates that such silence has a tendency to prove or disprove a relevant fact.” Delrio, 32 Vet.App. at 240 (citing Fountain v. McDonald, 27 Vet.App. 258, 272 (2015));

by The Editor
November 10, 2021
0

Single Judge Application; Geib, 733 F.3d at 1354 (establishing that “applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”); Board was therefore ...

Single Judge Application; flare-up; this Court’s caselaw and VA guidelines requiring VA medical examiners, in situations when direct observation is not possible, to opine on and quantify the effect of pain on functioning based on other evidence. See, e.g., Sharp v. Shulkin, 29 Vet.App. 26, 35 (2017) (instructing VA examiners, when conducting examinations that do not take place during a flare-up, to “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans”);

Single Judge Application; flare-up; this Court’s caselaw and VA guidelines requiring VA medical examiners, in situations when direct observation is not possible, to opine on and quantify the effect of pain on functioning based on other evidence. See, e.g., Sharp v. Shulkin, 29 Vet.App. 26, 35 (2017) (instructing VA examiners, when conducting examinations that do not take place during a flare-up, to “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans”);

by The Editor
November 7, 2021
0

Single Judge Application; flare-up; this Court’s caselaw and VA guidelines requiring VA medical examiners, in situations when direct observation is not possible, to opine on and quantify the effect ...

Single Judge Application; reason and bases; Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001); failure discuss all the evidence favorable to a claimant; Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994); the Board cannot “evade [its] statutory responsibility [to state the reasons or bases for its conclusions] merely by adopting [a medical opinion] as its own” where the medical opinion “fails to discuss all the evidence which appears to support [the] appellant’s position.” Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994). Gabrielson does not require that a medical opinion discuss all the evidence favorable to a claimant, only that the Board, in relying on an opinion that does not do so, discuss any additional favorable evidence to comply with its duty to provide an adequate statement of reasons or bases for its decision. See id.; 38 U.S.C. § 7104(d)(1); see also Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001) (holding that, although the Board must consider all of the evidence of record, “a discussion of all evidence is not required when . . . the Board has supported its decision with thorough reasons or bases regarding the relevant evidence”);

Single Judge Application; reason and bases; Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001); failure discuss all the evidence favorable to a claimant; Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994); the Board cannot “evade [its] statutory responsibility [to state the reasons or bases for its conclusions] merely by adopting [a medical opinion] as its own” where the medical opinion “fails to discuss all the evidence which appears to support [the] appellant’s position.” Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994). Gabrielson does not require that a medical opinion discuss all the evidence favorable to a claimant, only that the Board, in relying on an opinion that does not do so, discuss any additional favorable evidence to comply with its duty to provide an adequate statement of reasons or bases for its decision. See id.; 38 U.S.C. § 7104(d)(1); see also Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001) (holding that, although the Board must consider all of the evidence of record, “a discussion of all evidence is not required when . . . the Board has supported its decision with thorough reasons or bases regarding the relevant evidence”);

by The Editor
October 30, 2021
0

Single Judge Application; reason and bases; Dela Cruz v. Principi, 15 Vet.App. 143, 149 (2001); failure discuss all the evidence favorable to a claimant; Gabrielson v. Brown, 7 Vet.App. ...

Single Judge Application; This Court has held that “[l]ay testimony is competent . . . to establish the presence of observable symptomatology and ‘may provide sufficient support for a claim of service connection.’” Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (quoting Layno v. Brown, 6 Vet.App. 465, 469 (1994)). As this Court has often noted, “symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet.App. 488, 496 (1997); see also Wilson v. Derwinski, 2 Vet.App. 15, 19 (1991) (noting that the “regulation requires continuity of symptomatology, not continuity of treatment”);

Single Judge Application; This Court has held that “[l]ay testimony is competent . . . to establish the presence of observable symptomatology and ‘may provide sufficient support for a claim of service connection.’” Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (quoting Layno v. Brown, 6 Vet.App. 465, 469 (1994)). As this Court has often noted, “symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v. Gober, 10 Vet.App. 488, 496 (1997); see also Wilson v. Derwinski, 2 Vet.App. 15, 19 (1991) (noting that the “regulation requires continuity of symptomatology, not continuity of treatment”);

by The Editor
October 28, 2021
0

Single Judge Application; This Court has held that “ay testimony is competent . . . to establish the presence of observable symptomatology and ‘may provide sufficient support for a ...

Single Judge Application; English, 30 Vet.App. at 352-53; the Board must explain what it understands the terms “slight” and “moderate” in DC 5257 to mean so that appellant will understand why he was evaluated as he was, and the Court can review the Board’s decision; the Board focused on “objective evidence” in the VA medical opinions to support its conclusion that appellant’s instability was only “slight.”35 We can’t tell whether the Board faithfully applied English v. Wilkie or merely recited its holding concerning the lack of a requirement of objective evidence. On remand, the Board must ensure that it does not inappropriately downgrade evidence of instability merely because it is subjective. We stress again that it is inappropriate to categorically favor objective evidence of instability over subjective evidence of that condition. English, 30 Vet.App. at 352-53;

Single Judge Application; English, 30 Vet.App. at 352-53; the Board must explain what it understands the terms “slight” and “moderate” in DC 5257 to mean so that appellant will understand why he was evaluated as he was, and the Court can review the Board’s decision; the Board focused on “objective evidence” in the VA medical opinions to support its conclusion that appellant’s instability was only “slight.”35 We can’t tell whether the Board faithfully applied English v. Wilkie or merely recited its holding concerning the lack of a requirement of objective evidence. On remand, the Board must ensure that it does not inappropriately downgrade evidence of instability merely because it is subjective. We stress again that it is inappropriate to categorically favor objective evidence of instability over subjective evidence of that condition. English, 30 Vet.App. at 352-53;

by The Editor
October 22, 2021
0

Single Judge Application; English, 30 Vet.App. at 352-53; the Board must explain what it understands the terms “slight” and “moderate” in DC 5257 to mean so that appellant will ...

(1) is in writing; (2) indicates an intent to apply for veterans’ benefits; and (3) identifies the particular benefits sought.” Shea v. Wilkie, 926 F.3d 1362, 1367 (Fed. Cir. 2019) (internal quotation marks omitted). A “[v]eteran need not refer explicitly to the name of an illness, injury, or condition” on his claim form. Sellers v. Wilkie, 965 F.3d 1328, 1335 (Fed.Cir. 2020). A high level of generality will suffice, so long as the “benefit sought . . . can also be found indirectly through examination of evidence to which those documents themselves point when sympathetically read.” Shea, 926 F.3d at 1368 (internal quotation marks omitted).; Had Mr. Germany’s mental health records been before the RO in the first instance in evaluating his Claim, that might have been sufficient to qualify as an informal claim. See id. at 1370. In Shea, we held that the VA erred by not construing the veteran’s claim to cover psychiatric conditions referenced in her medical records but not explicitly listed on her claim form. Id; 2 In 2015, the VA implemented a rule that claims for disability benefits must be filed on a standard form and revised 38 C.F.R. § 3.155. See Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660 (Sept. 25, 2014).

(1) is in writing; (2) indicates an intent to apply for veterans’ benefits; and (3) identifies the particular benefits sought.” Shea v. Wilkie, 926 F.3d 1362, 1367 (Fed. Cir. 2019) (internal quotation marks omitted). A “[v]eteran need not refer explicitly to the name of an illness, injury, or condition” on his claim form. Sellers v. Wilkie, 965 F.3d 1328, 1335 (Fed.Cir. 2020). A high level of generality will suffice, so long as the “benefit sought . . . can also be found indirectly through examination of evidence to which those documents themselves point when sympathetically read.” Shea, 926 F.3d at 1368 (internal quotation marks omitted).; Had Mr. Germany’s mental health records been before the RO in the first instance in evaluating his Claim, that might have been sufficient to qualify as an informal claim. See id. at 1370. In Shea, we held that the VA erred by not construing the veteran’s claim to cover psychiatric conditions referenced in her medical records but not explicitly listed on her claim form. Id; 2 In 2015, the VA implemented a rule that claims for disability benefits must be filed on a standard form and revised 38 C.F.R. § 3.155. See Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660 (Sept. 25, 2014).

by The Editor
October 20, 2021
0

FedCir Application; 38 C.F.R. § 3.155(a); Sellers v. Wilkie, 965 F.3d 1328, 1335 (Fed.Cir. 2020); Shea v. Wilkie, 926 F.3d 1362, 1367 (Fed. Cir. 2019); appears to argue that ...

Single Judge Application; In Chavis, the Court explained that the ankylosis requirement in 38 C.F.R. § 4.71a “can be met with evidence of the functional equivalent of ankylosis during a flare.” Chavis v. McDonough, _ Vet.App. _ , No. 19-2928, 2021 WL 1432578, at *1 (Apr. 16, 2021) (emphasis added); Chavis changes the landscape; examiner did not consider whether the functional limitations appellant experienced regularly and during the examination were akin to a functional equivalent of ankylosis. Though the Board did mention appellant’s daily flare-ups, pain, and functional limitations of his neck, the Board did not address how this potentially favorable evidence compared to ankylosis;

Single Judge Application; In Chavis, the Court explained that the ankylosis requirement in 38 C.F.R. § 4.71a “can be met with evidence of the functional equivalent of ankylosis during a flare.” Chavis v. McDonough, _ Vet.App. _ , No. 19-2928, 2021 WL 1432578, at *1 (Apr. 16, 2021) (emphasis added); Chavis changes the landscape; examiner did not consider whether the functional limitations appellant experienced regularly and during the examination were akin to a functional equivalent of ankylosis. Though the Board did mention appellant’s daily flare-ups, pain, and functional limitations of his neck, the Board did not address how this potentially favorable evidence compared to ankylosis;

by The Editor
October 19, 2021
0

Single Judge Application; In Chavis, the Court explained that the ankylosis requirement in 38 C.F.R. § 4.71a “can be met with evidence of the functional equivalent of ankylosis during ...

Single Judge Application; Lyles v. Shulkin, 29 Vet.App. 107, 109 (2017); “entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different DC.” Lyles v. Shulkin, 29 Vet.App. 107, 109 (2017). Further, a veteran with a musculoskeletal disability, such as Mr. Wilson’s left knee disability, may be entitled to a higher disability evaluation than that supported by mechanical application of the schedule where there is evidence that the disability causes “additional functional loss—i.e., ‘the inability . . . to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance’— including as due to pain and/or other factors” or “reduction of a joint’s normal excursion of movement in different planes, including changes in the joint’s range of movement, strength, fatigability, or coordination.” Id. at 117-18 (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); see Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017) (“Flare-ups . . . must be factored into an examiner’s assessment of functional loss”); Mitchell v. Shinseki, 25 Vet.App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet.App. 202, 205-07(1995).;

Single Judge Application; Lyles v. Shulkin, 29 Vet.App. 107, 109 (2017); “entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different DC.” Lyles v. Shulkin, 29 Vet.App. 107, 109 (2017). Further, a veteran with a musculoskeletal disability, such as Mr. Wilson’s left knee disability, may be entitled to a higher disability evaluation than that supported by mechanical application of the schedule where there is evidence that the disability causes “additional functional loss—i.e., ‘the inability . . . to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance’— including as due to pain and/or other factors” or “reduction of a joint’s normal excursion of movement in different planes, including changes in the joint’s range of movement, strength, fatigability, or coordination.” Id. at 117-18 (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); see Sharp v. Shulkin, 29 Vet.App. 26, 32 (2017) (“Flare-ups . . . must be factored into an examiner’s assessment of functional loss”); Mitchell v. Shinseki, 25 Vet.App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet.App. 202, 205-07(1995).;

by The Editor
October 18, 2021
0

Single Judge Application; Lyles v. Shulkin, 29 Vet.App. 107, 109 (2017); “entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which ...

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