Another Federal Court Case Concerning Lay Evidence

[free_spirit_etc]

Here is another Federal Court Decision (2007) that says they can't just blow off lay evidence - even of medical conditions. The vet STILL can't diagnose himself. BUT - the VA can't ignore lay statements merely because the medical records didn't document the same thing.

This probably won't result in the VA NOT ignoring lay evidence - They will probably just get more skilled in how the WORD why they are ignoring the evidence.

Can hardly wait until the Federal Courts make a decision on "Internet print-outs"

http://www.cafc.uscourts.gov/opinions/07-7029.pdf

United States Court of Appeals for the Federal Circuit

2007-7029

ALVA JANDREAU,

Claimant-Appellant,

v.

R. JAMES NICHOLSON, Secretary of Veterans Affairs,

Respondent-Appellee.

Ronald L. Smith, Disabled American Veterans, of Washington, DC, argued for claimant-appellant. With him on brief was Zachary M. Stolz.

Leslie Cayer Ohta, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Peter D. Keisler, Assistant Attorney General; Jeanne E. Davidson, Director; and Mark A. Melnick, Assistant Director. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel; and Y. Ken Lee, Attorney, United States Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Chief Judge William P. Greene, Jr.

United States Court of Appeals for the Federal Circuit

2007-7029

ALVA JANDREAU,

Claimant-Appellant,

v.

R. JAMES NICHOLSON, Secretary of Veterans Affairs,

Respondent-Appellee.

___________________________

DECIDED: July 3, 2007

___________________________

Before MICHEL, Chief Judge, and BRYSON and DYK, Circuit Judges.

DYK, Circuit Judge.

Alva Jandreau (“Jandreau”) appeals the judgment of the United States Court of Appeals for Veterans Claims (“Veterans’ Court”). That court affirmed an earlier decision of the Board of Veterans’ Appeals (“Board”) that denied service connection for residuals of a right-shoulder dislocation. We reject appellant’s argument that the evidentiary standard should be relaxed, but hold that the Veterans’ Court improperly held that lay evidence cannot be used to establish a medical diagnosis. We remand for further proceedings consistent with this opinion.

BACKGROUND

Jandreau served honorably in the U.S. Army from May 1957 to May 1959. In

May 1997, Jandreau filed a claim with the Veterans Administration (“VA”) for residuals of a right shoulder injury. He asserted that the injury to his shoulder had occurred during basic training at Fort Dix, when he had dislocated his shoulder and had been treated for his injury on the base. The VA attempted to obtain Jandreau’s service medical records, but was unable to do so because those records had been destroyed in a 1973 fire at the National Personnel Records Center in St. Louis.

In an effort to provide the necessary evidence as support for his claim of service connection despite the destruction of the records, Jandreau submitted a number of documents to the VA. He submitted a statement from a fellow serviceman, Frederick Burnham, averring: “I remember Alva [Jandreau] being in great pain after dislocating his shoulder while in training.”1 J.A. at 35. Jandreau also submitted multiple medical reports, detailing medical examinations conducted in 2000. Those reports stated that Jandreau suffered pain, arthritis and rotator cuff impingement in his right shoulder. In particular, one report by Dr. Timothy Snell, M.D., assesses Jandreau’s condition as “[r]ight shoulder pain, most likely sequelae of his dislocation of the shoulder.” Id. at 7. Jandreau also submitted a radiology report indicating a history of right-shoulder dislocation and pain and documents indicating treatment for that condition.

The VA denied service connection because “no medical evidence was received showing continuity of treatment for the right shoulder since discharge from military service.” J.A. at 78. Jandreau appealed to the Board, which issued its decision on May

1 The VA specifically allows veterans to introduce into evidence statements of fellow service members when records were destroyed in the 1973 fire. See Veterans Benefits Administration Adjudication Procedures Manual M21-1MR, part III, subpart iii, ch. 2, § E.27.b (2005), available at http://www.warms.vba.va.gov/admin21/ m21_1/mr/part3/subptiii/ch02/ch02_sece.doc, page 2-E-5.

2007-7029 2

27, 2004. The Board denied service connection for Jandreau’s injury, reasoning that Dr. Snell’s report merely recorded Jandreau’s assertion that he had suffered a dislocation but did not diagnose a dislocation when it occurred. The Board stated that “the Board is not required to accept evidence that is simply information recorded by a medical examiner, unenhanced by medical opinion.” J.A. at 13. It further concluded that “[m]edical diagnosis and causation involve questions that are beyond the range of common experience and common knowledge, and require the special knowledge and experience of a trained physician.” Id. The Board rejected the testimony of both Jandreau and his fellow serviceman, because “[w]hile the veteran and his buddy are arguably competent to present evidence concerning the occurrence of an injury, they are not competent to present evidence to establish the etiology of a current disability.” Id. The Board thus found that “there is no competent evidence on file linking the veteran’s current right shoulder disabilities to service or to any incident therein.” Id.

Jandreau appealed to the Veterans’ Court, which affirmed the Board’s decision. The court concluded that the Board did not err in rejecting lay evidence that Jandreau suffered a dislocation during service and “did not err in discounting Dr. Snell’s medical opinion because it was premised on a fact that Mr. Jandreau was not competent to establish—that he had dislocated his shoulder during service.” Jandreau v. Nicholson, No. 04-1254, slip op. at *3 (Vet. App. Aug. 24, 2006). The court held that “[w]here the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required; however, lay assertions of symptomatology or injury may suffice where the determinative issue is not medical in nature.” Id. Thus the court held that “whether [Jandreau] experienced a dislocation of his shoulder requires a medical

2007-7029 3

diagnosis.” Id.

Jandreau timely appealed the decision of the Veterans’ Court to this court. We have jurisdiction pursuant to 38 U.S.C. § 7292(a). Cromer v. Nicholson, 455 F.3d 1346, 134-49 (Fed. Cir. 2006).

DISCUSSION

I

On appeal Jandreau first argues that the destruction of records while in the government’s custody should result in a relaxed evidentiary standard for veterans. We reject this argument.

The statute provides that “a claimant has the responsibility to present and support a claim for [VA] benefits.” 38 U.S.C. § 5107(a). In our decision in Cromer, 455 F.3d 1346, we considered and rejected the argument that service connection should be presumed when a veteran’s medical records are destroyed while in the government’s custody. 455 F.3d at 1350-51. In Cromer, the medical records were destroyed in the same 1973 fire at the National Personnel Records Center that resulted in the presumed destruction of Jandreau’s records. See id. at 1347. We reasoned that the veteran has the evidentiary burden of establishing his claim in veterans’ benefits cases and that Congress and the VA have specifically shifted that burden in particular cases, but have not done so here. Id. at 1350-51. We further noted that the VA has eased the evidentiary burden on veterans whose records were lost in the 1973 fire, but has not provided for an adverse presumption of service connection. Id. at 1351. 2

2 See Veterans Benefits Administration Adjudication Procedures Manual M21-1MR, part III, subpart iii, ch. 2, § E.27.b (2005), available at http://www.warms.vba.va.gov/admin21/m21_1/...2/ch02_sece.doc,

2007-7029 4

Jandreau on appeal does not deny that our decision in Cromer is controlling on the issue of burden shifting, but asserts that his claim is different because he asserts only that his burden of proof should be “somewhat relaxed.” Reply Br. at 1. To the extent Jandreau seeks a modification of his burden of proof, we see no material difference between his argument and the argument we rejected in Cromer. To the extent that Jandreau seeks to invoke traditional evidentiary adverse inference rules, we find those rules to be inapplicable, even if we were to agree that they apply in the context of VA proceedings. The general rules of evidence law create an adverse inference when evidence has been destroyed and “(1) . . . the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) . . . the records were destroyed with a culpable state of mind; and (3) . . . the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.” Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002) (internal citation and quotation marks omitted); see also 31A C.J.S. Evidence § 168 (2007); 2 Kenneth S. Brown, McCormick On Evidence § 264 (6th ed. 2006). The burden is on the party seeking to use the evidence to show the existence of each criterion. Residential Funding, 306 F.3d at 107. There is no claim here that the records were willfully or recklessly destroyed. While some circuits have held that a showing that a party was negligent in

page 2-E-5 (listing alternate documents, such as statements from service medical personnel, statements of fellow service members, letters, photographs or prescription records, state or local accident and police reports, that the veteran can provide to substitute for documents destroyed in the 1973 fire).

2007-7029 5

the destruction of records creates an adverse inference,3 we need not decide whether that is the correct rule because Jandreau conceded at oral argument that there was no evidence of government negligence leading to the destruction of the records.

II

Jandreau’s second argument on appeal is that the Veterans’ Court erred in holding that that lay evidence is insufficient “where the determinative issue involves either medical etiology or a medical diagnosis,” and that accordingly, “whether [Jandreau] experienced a dislocation of his shoulder requires a medical diagnosis.” Jandreau, No. 04-1254, slip op. at *3. We agree. The holding of the Veterans’ Court is inconsistent with our decision in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), which was decided shortly before the decision of the Veterans’ Court in this case.

Buchanan involved a situation where the veteran claimed service connection resulting from schizophrenia that allegedly began during his service. The veteran sought to establish service connection by submitting affidavits of relatives and his commanding officer testifying that his symptoms of paranoid schizophrenia first manifested themselves during service, as well as a medical opinion from 2001, almost twenty years after the conclusion of his service, that stated that his symptoms first

3 See Residential Funding, 306 F.3d at 108; Rogers v. T.J. Samson Cmty. Hosp., 276 F.3d 228, 232 (6th Cir. 2002). Other circuits have held mere negligence insufficient to apply an adverse presumption. See, e.g., Aramburu v. The Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997); Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997); Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir. 1995); Vick v. Texas Employment Comm'n, 514 F.2d 734, 737 (5th Cir. 1975); see also Med. Lab. Mgmt. Consultants v. Am. Broad. Co., 306 F.3d 806, 824 (9th Cir. 2002); Jackson v. Harvard University, 900 F.2d 464, 469 (1st Cir. 1990).

2007-7029 6

appeared during service. Id. at 1333. The Board determined that lay evidence without confirmatory documentary evidence cannot be credible, and the Veterans’ Court affirmed. Id. at 1337. We reversed, holding that numerous veterans’ statutes and regulations require consideration of lay evidence. Id. at 1334-35; see also 38 U.S.C. §§ 1154(a), 5107(; 38 C.F.R. §§ 3.303(a), 3.307(. In other words we found that the statute makes clear that, in the veterans’ context, traditional requirements for admissibility have been relaxed. See 38 U.S.C. § 5107(B) (“The Secretary shall consider all . . . lay and medical evidence of record in a case . . . with respect to benefits.”). We concluded that “lay evidence is one type of evidence that must be considered” and that “competent lay evidence can be sufficient in and of itself.” Buchanan, 451 F.3d at 1335. We noted that the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Id. at 1336-37. The rule announced in Buchanan is particularly important when veterans’ service medical records have been destroyed. Unless lay evidence were allowed, it would be virtually impossible for a veteran to establish his claim to service connection in light of the destruction of the service medical records.

Under Buchanan the conclusion of the Veterans’ Court that “competent medical evidence is required . . . [when] the determinative issue involves either medical etiology or a medical diagnosis” is too broad. Jandreau, No. 04-1254, slip op. at *3. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition,4 (2) the layperson is

4 Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer.

2007-7029 7

2007-7029 8

reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Contrary to the Veterans’ Court, the relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans’ Court. We do not reach the question whether in the present case the lay evidence is competent and sufficient to establish shoulder dislocation, a matter beyond our jurisdiction. We remand to the Veterans’ Court so that it may remand to the Board for further consideration under the correct legal standard.

CONCLUSION

For the foregoing reasons, the decision below is

REVERSED AND REMANDED

COSTS

No costs.

[free_spirit_etc]

We didn't go get the printed article - but instead of saying we got the article at www.com - we reported it as:

In fact the article Rapidly growing small peripheral lung cancers detected by screening CT: correlation between radiological appearance and pathological features (The British Journal of Radiology, 73 (2000), 930±937, Wang, et. al) reports:

Of course - we haven't won the case yet either - ACK!

We also did not use the WHOLE article - but gave enough of an EXCERPT to prove the point. But of course, we were proving pretty simple points. For instance - one point is that lung cancer is most often asymptomatic until it's later stages. That is SO well known - and reported in SO many places - we gave them several reputable sources that said it - and a BIT of the article - rather than gave them the WHOLE articles.

Another word of warning is to read the WHOLE article - don't just take a little part out of context.

I've seen quite a few cases where people's own articles were held AGAINST them at the BVA. The BVA would say - THey submitted an article that said blah, blah, blah. And at first look it would seem the article supports their claim. But on further reading the article also says ___ and ____ and blank___ - and dang if the BVA doesn't use the claimant's OWN article AGAINST them.

So I would read EVERYTHING in the article we were sending - and if ANYTHING was IN that article that looked like it could be TWISTED BACK AROUND AGAINST my husband's claim - we didn't use the article. We just searched until we found enough info that supported the claim - that didn't include something that could be twisted.

Our problem was my husband having lung cancer and being a smoker. SO MANY articles have that line that says MOST cancer is caused by smoking.

We weren't about to send them tons of articles where they could disregard the point we were making - and focus on the ONE LINE about smoking.

Gotta watch your back - real careful like...

Free

For right now, there are ways to improve receptivity of some internet info. Though in my case, internet source material were noted in deciding an increase.

But many times you can find medical journal articals on-line. Call your library and have them get you a copy from the printed document. Unfortunately, these days many journals are getting away from printed matter altogether and the internet is becoming the only source for some such.

You might contact a firm, such as a phys therapy office, who's web page has appropriate info. Ask them to mail you, offering to send a self addressed/stamped envelope, the information. Sometimes they will.

Another thought I've had, but not followed up on yet, is to see if I can get access to a medical library and dig through their books. Wouldn't think it'd hurt to be able to quote 'chapter & verse,' so to speak.

[tssnave]

Free,

Have you ever taken a list of your articles and gone to your local library and had them get the actual articles for you through their, great, I'm having a brain fade and can't think of the name of the service that libraries subscribe to that an everyday person can't afford - since it's too late to call my library and ask them and I'll most likely crash soon let me hope that someone will fill in the holes of my Swiss cheese brain and suggest that you take your list of articles and go to your local public library (or college if you have one close by and have access to their systems) and ask them to get copies of the actual journal articles. That way, if you have to provide the actual article you are referring to it may not be as easily dismissed as "internet print outs".

As I understand the problem, part of the issue with internet printouts is that you still need a medical person to opinion on the information AS IT PERTAINS TO YOUR CLAIM. Even if it is common medical knowledge and especially if it is newly documented evidence that x causes y you have to have a doctor who has read your C-file and ideally examined you (providing the vet is alive, of course) write an opinion that the x and the y pertain to your situation. That way, you have medical evidence and, if the VA reads their regs then they won't supplant their opinion over the opinion of a medical expert.

BTW, in regards to a comment you made in another thread - yes, it's a crying shame that many of us have to fight for the proper percentage, effective dates, IU, P&T, secondary issues, A&A, Voc Rehab and a slew of other things I've read about on the board after we get service connected because our evidence is either not read, not listed, not put in the C-file, or not weighed properly. It's even worse when the VA ignores their own C&P examiners as they did in my case where the examiner said I was "totally socially and occupationally impaired due to my sc disorder which rendered me unable to maintain employment" and from that they rated me 50% rather than see the very clear claim, raised in my initial C&P exam and clearly noted by their own VA C&P examiner, for an IU claim. So, after having to NOD their initial Decision denying me service connection (they didn't bother to read the letters from the shrinks who treated me while I was on active duty over 20 years ago even though one of the shrins was still on active duty when I submitted my claim with his letter attesting I was treated while on active duty) and getting the service connection and 50% I had to NOD the rating percentage so yea, I agree with you, it's a real pity that this is how it plays out for many veterans.

However, having said that, my prayer for Betty is that the RO will see that the BVA has a handle on her claim and they will rate her 100% IU, P&T with an effective date of 1978. That's my prayer for Betty because based on my understanding of her claim, that's what's accurate.

My prayer for all hadit members is that their claims will be properly adjudicated in a timely manner.

But, I digress. I just wanted to ask if you've ever gone to the library to get the actual articles if printing them out from the internet is a potential sticking point with the VA.

Thanks for all you posts. I learn a lot from reading them.

Thanks,

TS

Edited March 10, 2008 by tssnave

[free_spirit_etc]

Thanks TS. I will keep that in mind.

In my mind - Internet sources are kind of the generic term used for not so much "unreputable" websites - but sites that do not fall into the realm of academic, scientific journals, etc.

Personally, I think there is much misunderstanding about this right now. Not so much with the VA - but with most people.

For instance, I teach. And many teachers get aggravated when the only research students do it online. But I think that the idea comes from a time when you DID "real" research at the library - and looked up whatever kind of information online.

But that time is rapidly fading. Student no longer need to be taught that the information they find on the internet is not valid. They need to be taught to discern the valid information from the not-so-reliable information - how to look for the source of the information - and if it is a typical internet webpage - how to look for the source of where THAT information come from - and to go back to the source before deciding:

1. If the information is being presented accurately.

2. If the information is reliable.

(If you get information on smoking from "IWANTTOSMOKEDANGIT.COM" - it MIGHT not be as accurate and reliable as information from a more reputable source. But it MIGHT be -- track it to the original source.)

But most teachers still restrict the students to only being able to use one or two internet sources for information. I don't think that this is, in itself, bad. As students do need to get familiar with other sources.

However, the time has come that the Internet has TONS of reliable information. And the time is approachig (if it is not already here) that the Internet will be THE place to FIND that information.

So instead of passing on our archaic belief that information may not be reliable ONLY BECAUSE it was found on the internet - we need to start teaching students how to DISCERN how reliable the information is REGARDLESS of the source. (ALL internet info is NOT UNreliable - and ALL NON-internet sources are not necessarily reliable.

But instead, many professors still express outrage at students doing research on the Net.

I laugh at that one - because my husband did probably over 90% of his research for his Master's Thesis on the Internet. He mostly just needed to use his books to aply some of the theories. But we used the heck out of google scholar to find journal articles.

His Thesis, by the way, was called :

A Personal Journey Through a Bureaucratic Maze: The Department of Veterans' Affairs. Or: How Words and Actions are Often at Odds,"

Hadit, by the way, made it into his Thesis.

"The idea of a routinized front, impression management, and a possible failure to perform the tasks at hand in order to maintain that impression, may apply to the VA. While the motto of the VA may be “to care,” the impression left with the author and other veterans (see “hadit.com” for examples) is that the personnel within the VA are unwilling or unable to perform the tasks they purport to perform."

Anyway - the whole idea of internet sources being unreliable - is a mistaken belief - shared by many, apparently the VA.

On the question of a case about internet printouts going through court - I do believe that if the BVA dismissed evidence because it was an "internet printout" - AND that case was taken to court - the veteran would prevail.

Peer reviewed journal articles are peer reviewed journal articles - regardless of whether you print them at the library of off the internet. The information doesn't change with the medium.

Any information that would have been found reliable had it been printed at the library would have to be reliable if printed elsewhere.

§3.159 Department of Veterans Affairs assistance in developing claims:

(a) Definitions. For purposes of this section, the following definitions apply:

(1) Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.

Regardless of the medium where these were found - the medium shouldn't matter.

The Court would not make a ruling as to whether the specific article was competent - or whether it applied to the veteran's specific case - But I believe the Federal Court would rule that the BVA could not merely dismiss an article because the vet printed it on the Internet, instead of running to the library to get a hard copy of a hard copy. Then they would remand it back for the VA to find a different reason and basis for finding it unreliable.

With that said - I DO agree that I would much rather have the VA accept my evidence - and let someone else have the job of taking it through the courts.

However, the VA did not call our evidence Internet Printouts. They called our evidence medical treatises. I think that might be because we used lots of journal articles (peer reviewed) - and because they were each making small points and reporting common knowledge.

They will NOT "Make" our case - they merely SUPPORT it. Now when we get the IMO that bases their opinion on actual MEDICALLY ACCEPTED standards - about the known growth rates of different types of cancers - it will be hard for their paid doc to rebut that - with the standard "we do don't for sure how fast any specific person's cancer grows..."

Yes. You can't know the DAY it started - but there is enough known - and published in article after article - ALL of them reporting the SAME medically established standards - that you can state without speculating - that it is not very likely that a cancer that typically would have taken 15 - 17 years to grow to a certain size would have grown to that size in TWO years.

The journal articles will back our IMO - and rebut their rebuttal.

And I actually submitted them in anticipation of the appeal. If the VA doctor read the entire C-file - they SHOULD reconcile their opinion that there is no way to know without speculating - with all the treatesis info that says there IS a way to be reasonably assured.

Their experts - even after reading the C-file - which has article after article ALL agreeing that lung cancer is MOST OFTEN asymptomatic (has NO symptoms) until it is in the LATE stages. (That is one reason it is so deadly - because by the time you know you have it - it has a LONG head start on you) - but their experts tend to IGNORE the question of when it most likely STARTED - and choose to focus on the idea that it can't be service connected because there were no symptoms experienced in the service.

My husband, like MOST people, still didn't have ANY symptoms when the tumor was discovered - at 3 cm. two years post retirement.

Okay. Yeah. Their doctor gives an opinion that my husband didn't have any symptoms in the service. Big deal. The VERY NATURE of lung cancer is that you will NOT have symptoms until the very end. So the lack of symptoms proves nothing. And to require someone to have symptoms for a disease that is known to be asymptomatic is AGAINST medically established standards.

So if we have our IMO stating it most likely DID start in service - and their IMO that says he had no symptoms - and lots of journal articles pointing out that it is COMMON KNOWLEDGE that it is asymptomatic -- how much credibility should THEIR opinion be given?

The RO might buy into it - but I don't think the BVA will. And I want to have this set up where it is granted AT LEAST on the first appeal.

The reason we used so many articles was to point out the fact that this is not some obscure idea that you might find somewhere. Every peer reviewed journal article says the same thing. It is taught in medical schools. It is on traning sites. It is on the government sites.

ANYONE with ANY knowledge of cancer SHOULD know the information. It is THE STANDARD for lung cancer.

So if their doc issues their flimsy opinions - without so much as giving any reasons for why they are going AGAINST everything that IS KNOWN about cancer - I am HOPING the journal articles will be what pushes the case over to my favor.

My doctor vs. their doctor = remand.

My doctor and his PEERS (through the treatises) vs. their doctor SHOULD = granted (unless their doctor is pretty dang good at explaining away all the established medical standards.)

And again - on both sides of the fence - just because you can find a couple articles to support you does NOT mean you are using ESTABLISHED medical standards. You may be using information that, though researched, has NOT been established.

Just trying to set myself up for the ultimate win.

Free

Free,

Have you ever taken a list of your articles and gone to your local library and had them get the actual articles for you through their, great, I'm having a brain fade and can't think of the name of the service that libraries subscribe to that an everyday person can't afford - since it's too late to call my library and ask them and I'll most likely crash soon let me hope that someone will fill in the holes of my Swiss cheese brain and suggest that you take your list of articles and go to your local public library (or college if you have one close by and have access to their systems) and ask them to get copies of the actual journal articles. That way, if you have to provide the actual article you are referring to it may not be as easily dismissed as "internet print outs".

As I understand the problem, part of the issue with internet printouts is that you still need a medical person to opinion on the information AS IT PERTAINS TO YOUR CLAIM. Even if it is common medical knowledge and especially if it is newly documented evidence that x causes y you have to have a doctor who has read your C-file and ideally examined you (providing the vet is alive, of course) write an opinion that the x and the y pertain to your situation. That way, you have medical evidence and, if the VA reads their regs then they won't supplant their opinion over the opinion of a medical expert.

BTW, in regards to a comment you made in another thread - yes, it's a crying shame that many of us have to fight for the proper percentage, effective dates, IU, P&T, secondary issues, A&A, Voc Rehab and a slew of other things I've read about on the board after we get service connected because our evidence is either not read, not listed, not put in the C-file, or not weighed properly. It's even worse when the VA ignores their own C&P examiners as they did in my case where the examiner said I was "totally socially and occupationally impaired due to my sc disorder which rendered me unable to maintain employment" and from that they rated me 50% rather than see the very clear claim, raised in my initial C&P exam and clearly noted by their own VA C&P examiner, for an IU claim. So, after having to NOD their initial Decision denying me service connection (they didn't bother to read the letters from the shrinks who treated me while I was on active duty over 20 years ago even though one of the shrins was still on active duty when I submitted my claim with his letter attesting I was treated while on active duty) and getting the service connection and 50% I had to NOD the rating percentage so yea, I agree with you, it's a real pity that this is how it plays out for many veterans.

However, having said that, my prayer for Betty is that the RO will see that the BVA has a handle on her claim and they will rate her 100% IU, P&T with an effective date of 1978. That's my prayer for Betty because based on my understanding of her claim, that's what's accurate.

My prayer for all hadit members is that their claims will be properly adjudicated in a timely manner.

But, I digress. I just wanted to ask if you've ever gone to the library to get the actual articles if printing them out from the internet is a potential sticking point with the VA.

Thanks for all you posts. I learn a lot from reading them.

Thanks,

TS

[tssnave]

Free,

Sounds like you have your head on straight and are ready to fight the VA in accordance with their rules which is ultimately the best way to fight to win.

I am so sorry about the loss of your husband. I admire you and Berta hanging in there not just with your own widow's claims but hanging out to help the rest of us. Berta said something one time about widow's being a tenacious lot and I have to add a generously giving group of gals with their time and talents.

I also agree with your assessment of the VA situation and given my love of math and numbers enjoyed your equations.

Please keep us posted on the progress of your claim.

Thanks,

TS Snave