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Tag: held

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; 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; the Board did not discuss the veteran’s contention that the RO’s request improperly described the contents of the record, constrained the August 2012 VA expert’s view of the file, and thereby essentially tainted the medical opinion; The Board is obligated to ensure that it provides appellants with fair process in the adjudication of their claims. See Smith v. Wilkie, 32 Vet.App. 332, 337 (2020) (citing Thurber v. Brown, 5 Vet.App. 119 (1993); Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993)); In Smith, this Court held that the principle of fair process applies throughout the process of evidentiary development and is implicated when “the Board fails to procure a medical opinion in ‘an impartial, unbiased, and neutral manner’ when the opinion request contains a Board member’s own negative linkage opinion or otherwise suggests that an examiner should reach a predetermined conclusion.” Id. at 337-38 (citing Austin v. Brown, 6 Vet.App. 547, 551-52 (1994));

Single Judge Application; the Board did not discuss the veteran’s contention that the RO’s request improperly described the contents of the record, constrained the August 2012 VA expert’s view of the file, and thereby essentially tainted the medical opinion; The Board is obligated to ensure that it provides appellants with fair process in the adjudication of their claims. See Smith v. Wilkie, 32 Vet.App. 332, 337 (2020) (citing Thurber v. Brown, 5 Vet.App. 119 (1993); Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993)); In Smith, this Court held that the principle of fair process applies throughout the process of evidentiary development and is implicated when “the Board fails to procure a medical opinion in ‘an impartial, unbiased, and neutral manner’ when the opinion request contains a Board member’s own negative linkage opinion or otherwise suggests that an examiner should reach a predetermined conclusion.” Id. at 337-38 (citing Austin v. Brown, 6 Vet.App. 547, 551-52 (1994));

by The Editor
October 27, 2021
0

Single Judge Application; the Board did not discuss the veteran’s contention that the RO’s request improperly described the contents of the record, constrained the August 2012 VA expert’s view ...

(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; 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 ...

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