Is This Categorical Dismissal Of Lay Evidence

[mos1833]

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.

[mos1833]

thank you very much berta for adding the link,i dont know how thats done.

and hoppy , thank you for chiming in, your reading of my claim along with your comments brings out my objections so that people can understand them better,i think you for that.

the c/p that hurt was the one that said ( it would have been difficult to do fenceing had i been in pain ) what a joke, he dont know how much pain i can take and still do my work, he never gave me any type of test for pain tolerance.

and a nother thing is they pointed out that my seperation exam said i was normal. when in fact it does not. in fact there was no exam,just a unsigned incomplete form.

boy ill tell ye i am confused,i just want to tell them the evidence is there if they would just listen to me.

one mistake after another.

my question is whats next ,do i start again,if so at what point. thinks again

[Berta]

Sorry I didnt have time to read all in the decision until early this AM .I was interrupted by farm business issues.

Then when I read this, I can comment on the fencing part:

“the fact that he worked at a fencing

company after service, which would have been difficult if he had chronic low back pain”

Did VA provide any medical rationale for that?

My Australian High Tensile was installed and then repaired by someone who was a senior citixen by the time it needed repair.

Other types of fencing I installed myself, sometimes with help, I was the family livestock farmer, as my husband worked at VA and also was in Voc Rehab.

I had back pain from the minute I got up until I went to bed.Not unusual for farmers.

My point is how did the VA determine that your job would have been difficult with back pain.

Did they consider how your job would not have been difficult ,chronic with back pain?

Did the fencing job in fact involve heavy lifting etc, or did it involve something like installation of High tensile, done with front end loaders etc, to move the posts and then tap them in.The actual stringing of high tensile takes times for each strand ,that can involve miles, but is not labor intensive.

But the important question you asked is what you can do now.

Can your lawyer advance any evidence to this statement

if you appeal at the federal level?

“their determination that there is no evidence

in medical literature linking soft tissue injuries to the development of arthritis”

and

“Therefore, it did not err in also relying on medical

opinions that did not consider these statements, because the statements do not affect the factual

premise of the medical opinions.” that statement alone is a key issue that can cause denials to some vets with costly IMOs.

The factual premise must be probative to the claim itself.

Ardison link is here.

The VJRA allows the US Court of Appeals for the Federal Circuit to hold jurisdiction over denied CAVC that are appealed to th federal circuit Court of Appeals.

The regulations are within 38 USC 7292.

http://www.law.corne...de/text/38/7292

This is why a lawyer will fight hard for a joint remand at the CAVC if they can,depending on the evidence and the way the BVA decisions is worded, if they can find some loopholes in it.....

A Remand oipens a big door for more evidence.

CAVC denials can only be appealed at the federal circuit level, as far as I know, after reading the above regulation .

PS sorry my font shrunk.

I dont know how to fix that. It was OK in my OffOrg doc that I pasted here.

Edited September 29, 2012 by Berta

[broncovet]

Berta...

Let me make sure I am getting what you are posting. Yes, I understand that attornies try to get a remand, of course, if they cant get an award.

So, if they do get a remand, does that open the door to any "new evidence" or just "new evidence" for the issue remanded? This is important because I feel I almost have a "guarnteed remand".

You see, I think when the BVA fails to address issues the Veteran raised upon appeal, this is an automatic remand. The cavc tells the BVA to address those unaddressed issues.

But what I want to know is if they remand can I also submit more evidence on other issues?

I also know that the CAVC is not a "trier of fact". The "factual determinations" are made at the RO and BVA levels. The cavc does not want to get into whether the Veteran met the criteria for 30% or 50%. This "factual" determination could would rarely, if ever, be overturned at the CAVC or above levels. Instead, the attorney argues the BVA made some sort of legal error and gets a remand. Then, it opens the door for the Veteran to say..."gee, now that it has been remanded, why did you not consider me for 50, or 70 percent, when doc x indicated I met the criteria"...kind of a thing.

[Berta]

A joint remand from the CAVC, is usually negotiated by an attorney, who holds the veteran's POA at the CAVC level.

I dont know if a non represented vet can get a CAVC remand but that is covered in the Rules and Practice stuff at the CAVC web site.

If that negotiation successfully gets the CAVC to remand, then new evidence can be submitted but must be probative only to the claim that was remanded and only specifically to argue against the BVA denial that caused the CAVC filing.

The veteran could have other issues pending at the VA, or even file additional claims.

The CAVC however is only interested in the actual BVA denial that caused the vet to appeal to the CAVC.

[mos1833]

below is what iam up against----did they review the material or just rule against it due to me saying i have had pain since seperation,( lay )

hears a slap in the face

The Board has also considered multiple outpatient treatment

records showing on-going treatment for low back pain since

the late 1990s. While the veteran related his pain to an in-

service injury, the Board is not obligated to accept the

veteran's recitation of the facts. See Godfrey v. Brown, 8

Vet. App. 113 (1995). While recognizing that the veteran has

been diagnosed with a current low back disorder, the Board

places less probative weight on this evidence as the issue of

a causal relationship between his symptoms and current

diagnosis were either not addressed or appeared to be based

wholly upon statements of past medical history provided by

the veteran. The Board, however, is not bound to accept such

statements simply because treating medical providers have

done so. Wilson v. Derwinski, 2 Vet. App. 614 (1992); Wood

v. Derwinski, 1 Vet. App. 190, reconsideration denied, 1 Vet.

App. 406 (1991).

ipb.global.registerReputation( 'rep_post_256871', { domLikeStripId: 'like_post_256871', app: 'forums', type: 'pid', typeid: '256871' }, parseInt('') );

• thanks again berta ,and you too bronco .
  
• so all my medical evidence from my doctors is no good because of wilson v, derwinski .?
  

[Hoppy]

I noticed ther were responses. I am so pissed I am going to post this before I read the responses.

The wheels are still spinning in my head.

The veteran claims that there was no discharge exam. However, even if there was such an exam the fact that the veteran did not complain of pain it totally irrelevant.

I know individuals with chronic back pain that is capable of causing exacerbations that put them flat on their back unable to work for sixty days a year. I can post a case of a VA doctor that is rated at 60% due to the fact he stated he missed over sixty days a year of work. What happens the other three hundred days a year? In many cases there is no pain or not enough pain to even talk about.

So, a veteran does not mention he has back pain on a discharge exam. The veteran is about 20 years old had two exacerbations that resolved while in the military. Does the veteran plan on having a back condition the rest of his life or does he have a clue that he will continue to have this back problem. NO.

The evidence against the claim is so weak it does not outweigh subjective history. They are claiming there is evidence of a post service “injury” and bone condition 9 years after discharge. How does that rule out the possibility that the veteran has both a bone problem that may or may not be causing the pain and a history of pain going back to the military. It is not impossible to have both. Usually veteran’s credibility is challenged by the raters citing inconsistent statements or doctors saying the veteran’s complaints do not have a medical foundation.

The fact that the veteran did not see a doctor for nine years is also irrelevant in a back condition case. The veteran already saw doctors two times in the military and they gave him some treatment such as telling him to take some aspirin or don’t lift for a couple days or they could have just been rude and told him to quit complaining. Either of these patterns of treatment would make it likely that the veteran would be reluctant to spend money on a doctor just to get the same type of treatment. The fact that the veteran only went to sick call twice is evidence he is the type of person to be believed. People who are malingering go to sick call on a regular basis the rest of their career. Malingerers have what doctors call fat file syndrome.

There are VA adjudicators who just hate to award service connection or an increase in the types of claims where they need to rely on subjective complaints. Headaches, pain of different types etc. They need to get a medical opinion saying the veteran’s subjective complaints are not believable. A bare conclusion from a C&P examiner that a link is speculative or the fact that the veteran worked for a fence company does not make his complaints unbelievable. The fact that the veteran has a bone condition discovered nine years after service does not change the fact the veteran has a chronic pain condition in the military as demonstrated by post service complaints of pain.