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Layman Evidence Counts


Guest Morgan

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APPELLANT’S TESTIMONY MAY PLACE THE EVIDENCE IN EQUIPOISE

§ “The Secretary cannot ignore appellant’s testimony simply because appellant is an interested party. [] Appellant’s sworn statement, then, unless sufficiently rebutted, may serve to place the evidence in equipoise.” Cartright v. Derwinski, 2 Vet.App. 24, 25-26 (1991).

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Guest Namvet6567

I'm dealing w/this now in a claim. My claimant was awarded DM-II but denied hypertension (HTN), secondary to DM-II, due to statements he'd made "that he'd had a few high readings over the past 10 yrs." The VARO has taken this as a diagnosis. We're fighting it and will win.

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Guest terrysturgis

Namvet 6567, I'm just checking to make sure that you are aware of the BVA case Berta posted on the old board, Docket No. 03-37 357 that awarded SC for hypertension as secondary to DMII. I have filed a NOD for my hypertension with copies of that case attached and the decision highlited. It is at DRO so a decision on my case will take a while. Good luck, Terry Sturgis

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Namvet6567,

It sounds like they are using the flip side of this case to try and give undue expertise to the veteran. I bet you will win on appeal.

These laws are never supplied with examples of how to apply them . If you look around you will find other laws that are more applicable. Telling adjudication they cannot ignore a veterans opinion does not equate to the fact that a non combat veterans subjective history of events will be given any significant weight. I would not rely on this type of evidence to win a case or for that matter lose a case. Other types of evidence will be much more applicable.

Using a veterans subjective statments as evidence to disallow a claim is not a new trick. I read several BVA cases where the BVA determined that a disease predated service because the veteran told treating physicians in the military that they had similar symptoms before entering. What was really weird is that the symptoms involved were found in five different diseases that are unrelated and can start at anytime in life. Adjudication just takes liberties until you throw it back in their face.

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