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Tag: Finding

Panel Application; section 1155 directs the Secretary to establish in the rating schedule “ten grades of disability” for evaluating the severity of such conditions, the Secretary has provided less than ten levels of disability for most of the conditions listed in the schedule. See generally 38 C.F.R. §§ 4.71a – 4.150 (1992). Therefore, the schedular ratings established by the Secretary for compensation purposes may not in all cases provide a sufficiently comprehensive basis for determining when a measured worsening of a particular veteran’s condition in service constitutes an “increase in disability” for purposes of establishing service connection through aggravation under section 1153. This would seem to be so where the next higher rating is more than one decile greater. Furthermore, the rating-schedule provisions may not in all cases provide the most accurate or most logical basis for determining whether there has been an “increase in disability” during service. For example, with respect to organic mental disorders and psychoneurotic disorders, the rating schedule provides for disability ratings based on a finding that the condition causes “total”, “severe”, “considerable”, “definite”, or “mild” social and industrial impairment. See 38 C.F.R. § 4.132, Diagnostic Codes 9300-9411 (1992);

Panel Application; section 1155 directs the Secretary to establish in the rating schedule “ten grades of disability” for evaluating the severity of such conditions, the Secretary has provided less than ten levels of disability for most of the conditions listed in the schedule. See generally 38 C.F.R. §§ 4.71a – 4.150 (1992). Therefore, the schedular ratings established by the Secretary for compensation purposes may not in all cases provide a sufficiently comprehensive basis for determining when a measured worsening of a particular veteran’s condition in service constitutes an “increase in disability” for purposes of establishing service connection through aggravation under section 1153. This would seem to be so where the next higher rating is more than one decile greater. Furthermore, the rating-schedule provisions may not in all cases provide the most accurate or most logical basis for determining whether there has been an “increase in disability” during service. For example, with respect to organic mental disorders and psychoneurotic disorders, the rating schedule provides for disability ratings based on a finding that the condition causes “total”, “severe”, “considerable”, “definite”, or “mild” social and industrial impairment. See 38 C.F.R. § 4.132, Diagnostic Codes 9300-9411 (1992);

by The Editor
October 28, 2021
0

Panel Application; section 1155 directs the Secretary to establish in the rating schedule “ten grades of disability” for evaluating the severity of such conditions, the Secretary has provided less ...

Hall v. McDonough, No. 19-8717 (Decided October 18, 2021); The particular form a claimant submits—correct or otherwise—has no bearing on the Board’s jurisdiction to hear an appeal. Although VA can require a claimant to fill out a particular form and can dismiss nonconforming or untimely filings in appropriate circumstances, none of this affects the Board’s jurisdiction to hear appeals of veterans benefits decisions. Only Congress (or the Constitution) can set the parameters for jurisdiction, so an agency can neither expand nor limit its own jurisdiction through regulation. And because there is no indication that Congress intended to limit the Board’s jurisdiction to cases where veterans fill out the correct form, we reverse the Board’s finding that it lacked jurisdiction and remand for further development.;

Hall v. McDonough, No. 19-8717 (Decided October 18, 2021); The particular form a claimant submits—correct or otherwise—has no bearing on the Board’s jurisdiction to hear an appeal. Although VA can require a claimant to fill out a particular form and can dismiss nonconforming or untimely filings in appropriate circumstances, none of this affects the Board’s jurisdiction to hear appeals of veterans benefits decisions. Only Congress (or the Constitution) can set the parameters for jurisdiction, so an agency can neither expand nor limit its own jurisdiction through regulation. And because there is no indication that Congress intended to limit the Board’s jurisdiction to cases where veterans fill out the correct form, we reverse the Board’s finding that it lacked jurisdiction and remand for further development.;

by The Editor
October 20, 2021
0

Hall v. McDonough, No. 19-8717 (Decided October 18, 2021); The particular form a claimant submits—correct or otherwise—has no bearing on the Board’s jurisdiction to hear an appeal. Although VA ...

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 ...

“[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

by The Editor
October 5, 2021
0

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 medical ...

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