Jump to content
VA Disability Community via Hadit.com

VA Disability Claims Articles

Ask Your VA Claims Question | Current Forum Posts Search | Rules | View All Forums
VA Disability Articles | Chats and Other Events | Donate | Blogs | New Users

  • hohomepage-banner-2024-2.png

  • 27-year-anniversary-leaderboard.png

    advice-disclaimer.jpg

  • donate-be-a-hero.png

  • 0

Is This Categorical Dismissal Of Lay Evidence

Rate this question


mos1833

Question

below is what i think is a true injustic

this claim is back at the court again after being denied using this as evidence against my claim, i keep asking my self (can they do this)

from what i know and read about lay evidence, this is just wrong,the medical opinions never considered the lay evidence either.

what do you think ?

The mere contentions of the Veteran, no matter how well-meaning, without supporting medical evidence that would etiologically relate his current complaints with an event or incurrence while in service, are not of sufficient probative value to rebut the February 2002, January 2009, and July 2010 medical opinions. Caluza v. Brown, 7 Vet. App. 498 (1995); Lathan v. Brown, 7 Vet. App. 359 (1995); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1994); King v. Brown, 5 Vet. App. 19 (1993). In this case, there is no evidence that the Veteran, his family, or friend have any medical expertise, or are otherwise qualified to render a medical opinion. Consequently, his statements and the statements of his family and a friend, without some form of objective medical corroboration, are not deemed to be of significant probative value.

Link to comment
Share on other sites

  • Answers 86
  • Created
  • Last Reply

Top Posters For This Question

Recommended Posts

  • 0

All I could find at CAVC was what appears to be the remand:


  1. . 02-2299 (Quick View | Details | Similar)
    No. 02-2299 Mark R. Nunley, Appellant , Veteran Mark R. Nunley appeals, through counsel,

Not sure if this is your case

Do you have the docket number and any hyperlink to the current decision?

I tried the current stuff at CAVC with no success.

The above remand says:

"a congenital

transitional vertebra at L5, with incomplete bony bridging to S1

demonstrating degenerative sclerosis at this articulation on the left “

and

<a name="term2_1"> “The Court will not at this time address the other arguments and

issues raised on appeal by Mr. Nunley. See Best v. Principi, 15 Vet.App.

18, 20 (2001) ("A narrow decision preserves for the appellant an

opportunity to argue those claimed errors before the Board at the

readjudication, and, of course, before this Court in an appeal, should the

Board rule against him."). On remand, he is free to submit additional

evidence and raise his arguments to the Board and the Board must address

them. See Kay v. Principi, 16 Vet.App. 529, 535 (2002). “

Did you obtain an IMO ,during the remand process ,that overcame that statement they used to deny?

A CAVC remand opens the door for additional evidence.

Have you contacted the attorney you had yet if one represented you at the CAVC to see maybe if they could get another CAVC remand? I dont know if they could.

Link to comment
Share on other sites

  • 0
  • In Memoriam

Judge William Greene Jr..

http://www.allgov.co...fficialid=28578

I listened to his testimony with the Veterans Committee years ago. Judge Greene was nod and a wink To Larry Craig, former Chairman of the Vets Committee before he was flushed, during all of the hearings that Larry was chairman of.

At that time they were concerned that Veterans were getting into computers and that this would increase their load on the system. Seemed like they were having to reconsider their strategy for decreasing the Veterans Claims. That is where the nodding and winking began.

It was disgusting to watch the things that they were talking about tongue in cheek.

It is good to know what you are up against.

Edited by Stretch
Link to comment
Share on other sites

  • 0

thank berta,and stretch

the docket number is 11-2847

i wanted to raise the fact that there was no exam at seperation of service.

the way they worded it made it sound like i had one and nothing was found , by saying the sepration exam was normal. i told them to point to it any where in the record ,but they could not. that was one issue i wanted to raise on remand { and did } but nothing happened.

any way judge green just talks about the boards decesion, and never shows how i replied.

he totally was wrong when he explained how my lay testimony was treated by the board.

i wish i could just sit down with the judge and explain it , with out all the leagel mobo jubo.

can i apeal this or what, my lawyer wont call me back, its been a 3 days since i called him,nothing

sorry again for bitching ,thanks

Link to comment
Share on other sites

  • 0

I only read the decision to this point:

"In this case, the only evidence of continuous back symptoms are the statements of Mr.

Nunley and his family, asserting that he has experienced back pain since his military service. R. at

1139-50, 1495-96, 1499"

I know the lay statement -symptomatology stuff in the regulations , but cases like this require an independent medical opinion or at least some documented medical treatment records,prior to filing at CAVC.

I see no evidence here of continuous documentation of medical treatment , even if sparse, that even a IMO doctor could base any medical nexus and rationale on.

I didnt read the whole case, others can here:

https://efiling.uscourts.cavc.gov/cmecf/servlet/TransportRoom?servlet=ShowDoc&dls_id=01202159232&caseId=70902&dktType=dktPublic

They might have a different opinion than I do.

Link to comment
Share on other sites

  • 0
  • HadIt.com Elder

MOS1833, Berta and others

I am not sure if this is a claim I did some research on some time ago. However, here are some of my thoughts.

I am not sure what the appeal rights are at this stage of the game. deanbrt had a remand from CAVC and we submitted evidence before the remand was decided. The case was awarded based on the new evidence. It appears no new evidence was submitted by MOS 1833.

As far as I am concerned based on my experience in workmans compensation there could be evidence to back up this claim. Reading the CAVC decision gives me the impression that there are some holes.

Let me start by saying that many doctors who did workmans comp. would place someone on permanent disability if they had symptoms of a strain that lasted several weeks. Individuals who I have talked to years after being rated for a workmans comp back injury with only a diagnosis of a strain had continued symptoms for the rest of their lives. Basically my point is that there is validity to determining that someone has a permanent back disability based on an initial flare up. Many of these back patients do not seek treatment after the initial flare and doctors will even tell the patients not to waste their money seeing doctors and provide the patients with exercises and tell them to use over the counter pain relievers.

Will the military do this? No way. Will a C&P doctor explain that this is typical lending credibility to the veteran’s subjective history in a C&P exam? No way.

I think the fact that a veterans has any diagnosis of a back condition while in the military should be awarded based on their subjective history unless it is clear there was an inter current injury.

I would seek a medical opinion that the veteran’s subjective history is credible. The CAVC did not cite any medical opinion that the subjective history was not credible. The CAVC played doctor. Credibility is should not be interpretative by the court. It should be specifically addressed in a medical opinion.

The CAVC brought up the issue of his working at a fence company. The opinion stated that if he had worked at a fence company he would have reported back problems earlier

Initial reported symptoms was determined to be nine years after discharge. Are they saying that the subjective history provided by the veteran stated he had no symptoms for 9 years. If so, this would need to be corrected if in fact the symptoms did continue immediately after the military. If they are relying solely on symptoms noted in the medical records for the first time 9 years after service this would arbitrary. The veteran stated that the C&P examiners did not mention or give consideration to the subjective history. This would be a significant error. The subjective history should have been addressed by a medical profession as to it’s credibility.

Finally, the three C&P exams relied on the lack of symptoms on the separation exam and the fact that he worked at a fence company. I have not seen the C&P’s to see how thorough the exam was. Did he specifically deny missing any workdays or having any pain while working at the fence company? Did they even do a job duties assessment? What if he was a driver who only did short deliveries which resulted in semi sedentary work with no lifting or repetitious motion? These are the types of activities that would aggravate a back.

Even though the CAVC talked about the 3 C&P’s they did not identify any logic provided by the C&P examiners that would be considered as evidence against the claim. Things like falling at work, heavy lifting, repetitious motion etc. Even though the C&P were considered as evidence against the claim, why are there no details? They mention that the bone injury was mentioned for the first time after service as evidence against the claim. Yet, they call the bone condition congenital. Did they do the same tests in the military as they did post service ruling out the congenital condition. This makes me wonder if there really is a congenital condition. Or can it be determined that he had the congenital condition in the military and would the military have aggravated the congenital and the symptoms noted in the military be evidence of such aggravation.

The CAVC stated that there was sufficient evidence against the claim as to make the fact that the doctors did not address the subjective history irrelevant. What kind of pretzel logic is this? Whether or not the subjective history is relevant is a medical determination. Without weighing the subjective history the doctors could not make an assessment as to whether or not there was credible evidence of significant symptoms prior to what they are calling a bone injury 9 years after service. Is it an injury or a congenital condition? If it is not an injury and it would have been an underlying potential for aggravation while in the military and there was a credible subjective history of symptoms prior to the discover of this bone condition, would this not be something that a medical opinion should address?

An IMO giving credibility to this claim based on the subjective history and showing any flaws in the C&P would be the way I would go.

Edited by Hoppy
Link to comment
Share on other sites

  • 0
  • HadIt.com Elder

One thing i wanted to add to the bottom of my previous post, so read it first. the C&P examiners addressed that there was no connection between soft tissue injuries and arthritis. Had the C&P examiners known your subjective history would this raise a possible diagnosis of chronic mechanic strain. I am pretty sure I have heard that congenital conditions do become chronic mechanical strains when aggravated.

Link to comment
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
×
×
  • Create New...

Important Information

Guidelines and Terms of Use