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Tag: statutory

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; The Board cannot avoid adjudicating an issue before it, here the proper rating, simply because it may also arise in a different claim. See Rice, 22 Vet.App. at 450-54 (clarifying that TDIU is not a “claim” but an entitlement to a total disability rating when certain qualifications are met); As appellant notes, the Board’s failure to address entitlement to TDIU based solely on the veteran’s migraine headaches was prejudicial because that entitlement may lead to eligibility for SMC under 38 U.S.C. § 1114(s). See Bradley v. Peake, 22 Vet.App. 280, 293 (2008) (“[S]ection 1114(s) does not limit ‘a service-connected disability rated as total’ to only a schedular rating of 100%, and the Secretary’s current regulation permits a [total disability rating based on individual unemployability] based on a single disability to satisfy the statutory requirement of a total rating.” (quoting 38 U.S.C. § 1114(s))); And VA has had a long-standing policy of considering SMC where it may apply, even if not explicitly raised. See Akles v. Derwinski, 1 Vet.App. 118, 121 (1991);

Single Judge Application; The Board cannot avoid adjudicating an issue before it, here the proper rating, simply because it may also arise in a different claim. See Rice, 22 Vet.App. at 450-54 (clarifying that TDIU is not a “claim” but an entitlement to a total disability rating when certain qualifications are met); As appellant notes, the Board’s failure to address entitlement to TDIU based solely on the veteran’s migraine headaches was prejudicial because that entitlement may lead to eligibility for SMC under 38 U.S.C. § 1114(s). See Bradley v. Peake, 22 Vet.App. 280, 293 (2008) (“[S]ection 1114(s) does not limit ‘a service-connected disability rated as total’ to only a schedular rating of 100%, and the Secretary’s current regulation permits a [total disability rating based on individual unemployability] based on a single disability to satisfy the statutory requirement of a total rating.” (quoting 38 U.S.C. § 1114(s))); And VA has had a long-standing policy of considering SMC where it may apply, even if not explicitly raised. See Akles v. Derwinski, 1 Vet.App. 118, 121 (1991);

by The Editor
October 21, 2021
0

Single Judge Application; The Board cannot avoid adjudicating an issue before it, here the proper rating, simply because it may also arise in a different claim. See Rice, 22 ...

Single Judge Application; writ; The Board’s decision to remand this matter, in order to obtain additional, and impliedly negative evidence, is an exercise of “naked and arbitrary power.” See Yick Wo v. Hopkins, 118 U.S. 356, 366 (1886) (Matthews, J.); In Wolfe v. Wilkie, 32 Vet.App. 1 (2009), we issued a writ even though the petitioner had the ability to appeal the matter to the Court. The circumstances here are similar in that regard and equally as egregious. This is illustrative of systemic legal errors that can be corrected in the context of a petition. See Mathis v. Shulkin, 137 S. Ct. 1994, 1995 (2017)(Sotomayor, J., concurring) (noting the continuing “dialogue over whether the current system for adjudicating veterans disability claims can be squared with VA’s statutory obligations to assist veterans in the development of their disability claims.”); (Gorsuch, J., dissenting)(“Congress imposed on the VA an affirmative duty to assist—not impair—veterans seeking evidence for their disability claims.”). The conduct of VA here is certainly emblematic of a systemic, bureaucratic disorder, which we are uniquely ordained to deal with;

Single Judge Application; writ; The Board’s decision to remand this matter, in order to obtain additional, and impliedly negative evidence, is an exercise of “naked and arbitrary power.” See Yick Wo v. Hopkins, 118 U.S. 356, 366 (1886) (Matthews, J.); In Wolfe v. Wilkie, 32 Vet.App. 1 (2009), we issued a writ even though the petitioner had the ability to appeal the matter to the Court. The circumstances here are similar in that regard and equally as egregious. This is illustrative of systemic legal errors that can be corrected in the context of a petition. See Mathis v. Shulkin, 137 S. Ct. 1994, 1995 (2017)(Sotomayor, J., concurring) (noting the continuing “dialogue over whether the current system for adjudicating veterans disability claims can be squared with VA’s statutory obligations to assist veterans in the development of their disability claims.”); (Gorsuch, J., dissenting)(“Congress imposed on the VA an affirmative duty to assist—not impair—veterans seeking evidence for their disability claims.”). The conduct of VA here is certainly emblematic of a systemic, bureaucratic disorder, which we are uniquely ordained to deal with;

by The Editor
August 23, 2021
0

Single Judge Application; writ; The Board’s decision to remand this matter, in order to obtain additional, and impliedly negative evidence, is an exercise of “naked and arbitrary power.” See Yick ...

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