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.

[Hoppy]

The case you cited does say they do not have to base a decision wholly on your statements. This is true. They have to weigh the evidence for the claim with the evidence against the claim.

Evidence for the claim would be the fact you were treated in the military, you told them the symptoms continued after the military and you have a post service diagnosed back condition. This should be enough to award service connection. They must show your statements are not credible. However they “invented” evidence against the claim. The C&P examiner was the inventor of the bogus evidence.

They are saying the medical evidence does not show a link between the inservice and post service conditions. This is a problem. You need to get a nexus determination. The c&p examiners did not provide a nexus. An IMO should address nexus. However, they need to address continuity of symptoms. Do not quote me on this. However, I think that they do not need a nexus if continuity of symptoms is shown. Unfortunately, the BVA site is down and I can’t research this. In any event try and get a nexus statement. Resting the entire claim on continuity of symptoms without a nexus would be a weaker approach to advancing the claim. Also, I am not sure what to do with new evidence. Whether or not you need to file a new claim or continue this claim would be a consideration for the attorney.

They are attacking continuity of symptoms by saying that your statements are not believable. They must provide a reason your statements are not believable. To do this they cited several attacks on your credibility.

They cannot deny you were treated in the military. They cannot deny you have a current diagnosis. Thus, they are attacking the credibility of your statements based on the lack of notations at the time of discharge, your job at the fence company and the fact that you have a bone condition.

As I stated in the previous post, their attacks are supported by a bogus medical opinion from the C&P examiner who thought the lack of complaints at the time of discharge and the job at the fence company made your comments unbelievable. Additionally, they used this bogus C&P to give relevance to the diagnosis of the bone condition as somehow confusing the claim. As I said before, the relevance of the fact that you did not complain of back pain at the time of discharge and the fact that you worked at a fence company are not supported by my understanding of known chronic back conditions that I am familiar with. You could have both a chronic strain/pain condition dating back to the military supported by credible subjective complaints and a bone condition that was identified after the military that is either not causing pain or not dominating the diagnostic picture.

You need to get an IMO challenging the C&P and the relevance of the bone condition.

[Hoppy]

One last thought,

Does the C&P examiner specifically say that the lack of noted symptoms on the discharge exam and the job at the fence company make the veterans subjective complaints unbelievable or did the C&P examiner merely note these facts in his history. Did the Adjudicators play doctor by reading into the history and make a decison that can be equated to a medical determination? If so this would be a big NO, NO.

Who knows what is going on. I just saw a case on TV where a forensic examiner had been providing false testimony to the court for fiftten years. I have also read cases where the BVA was bashed for playing doctor. If the doctor did not specifically say the veterans claims were not believable and the RO played doctor, would the CAVC bust the BVA for playing doctor if you did not raise the issue or would this be something they CAVC would be obligated to address if discovered by the CAVC.

I once got into argument on the board with a VA adjudicator because I stated that continuity of symptoms was a medical determination that can only be determined by a doctor. The VA adjudicator posted that they are allowed to determine there was no continuity of symptoms based on case law without seeking a medical opinion. I thought that this was pretty marginal and would result in the misapplication of case law due to the fact that there would be medical complexities in a particular case that were not understood by the adjudicators. I equated the practice of using case law rater than a medical opinion to the adjudicators playing doctor. In a system that allows such a practice might not the raters invent a false medical determination that the lack of complaints on a discharge exam and a job at a fence company were relevent even though a doctor did not say they were relevent.

[broncovet]

I agree with Hoppy. There is a difference between "continuity of symptoms" and "continuity of treatment". A Veteran certainly may try different forms of "treatment" which may or may not include medical treatment. He may self medicate with OTC meds, he may "suck it up"...he may even treat it with alcohol. He may also treat his conditions with alternative medicine, such as acupuncture, herbal remedies, magnetic therapy, aroma therapy, chiropractic care, etc.

The Va requires continuity of symptoms, not continuity of treatment. Even a VA doc could prescribe a variety of different treatments for the same ailment..this does not mean the symptoms went away. It meant the treatment was probably ineffective, so the doc tried something else, as he should. Most often, Vets wind up "sucking it up" and living with the pain. "Self treatment" is different than "no treatment". The VA often views the absence of any medical treatments to mean there was no continuity. The absence of evidence is not evidence of absence. There is a big difference, and dont let the VA hornswaggle you into thinking they are the same thing.

Example: You fracture your leg in the military. (I did that, so I am using that example) Years later you develop arthritis in a joint that was the same joint that you fractured. You suffer symptoms for 10 years. You take OTC pain meds...you stay off the leg..pack ice on it when it swells, and drink yourself into a stupor when you cant bear it anymore. You cant afford to go to the doc, because you have no insurance and their is either no ortho ped department at your VA, or, if there is one, like my VAMC they offer appointment times in June, or July, 2013. Yea right. You apply for benefits. The VA denies, based on no continuity of symptoms, noting you had not been to the VA doc about your condition for 10 years. They hornswaggled you. You go to the VA doc for TREATMENT..not for symptoms. You have treated your own symptoms, and, now that they finally have an ortho department where you can get an appointment, you tell the doc of your symptoms. The absence of evidence in your record is not evidence of absence. Instead, it means that your records are incomplete, inaccurate, or you treated it where the treatment was not recorded in the medical record. This is not a crime!

It is certainly plausable, or even likely, that a Veteran would seek alternate treatments especially if the past treatment was ineffective or had too many side effects. The CAVC determined that continuity of symptoms was applicable, not continuity of treatment. Many Vets feel its not continuity of treatment if they did not go to their VA doc for a while. This is not necessarily true. You could well have "given up" on the treatments you got at the VA and sought "something different", such as something that actually worked.

"Evidence of absence" would be if the doc did an X ray and or MRI, and he said your tests showed you were "negative" for arthritis. This would be "evidence of absence" .....far different that just the mere silence of medical records on the issue.

If the Veteran were truly to be given the "benefit of the doubt" then a doc's "silence" should be counted to mean that the Veteran was right..not that the Veteran was a liar. In this example, the Veteran was not a liar because he sought alternative treatment, including self treatment. The med recs showing a lack of medical treatment does not mean the Vet is a liar, like the VA suggests.

Edited September 29, 2012 by broncovet

[Hoppy]

These cases were on my computer. I still would like the BVA to get their site running.

Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

A disorder also may be service connected if the evidence of

record reveals the veteran currently has a disorder that was

chronic in service or, if not chronic, that was seen in

service with continuity of symptomatology demonstrated

thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet.

App. 488, 494-97 (1997).

[mos1833]

In conjunction with the March 2010 remand, NPRC, in April 2010, again forwarded the results of the April 2006 prior search conducted which indicated that NPRC had conducted an extensive and thorough search of the records among their holdings. It noted that it was unable to locate the records identified in the request (personnel file). NPRC concluded that the records either did not exist or the records were not located at NPRC.

this is a joke hoppy, please note my the ro put in quotation marks that they requested my personnel records (file).

well i know my claim, and thats a bunch of crap. in 2006 they sent a request for for a ptsd claim, to prove if i was ever in harms way, thats different than a personnel file which they say they have requested twice, when in fact its never been correctly ask for.

they lie. thanks

[Berta]

In my opinion, if a NRPC search provides the VA with evidence to award the claim , that is Great!

But if the VA says the evidence NPRC sent them does not award the claim,that is when the veteran should prepare for NARA -a SF 180 (they can do this on line at NARA and then print out, copy, sign and send the bar coded Signature form

to where NARA site directs them to and they should request ALL SMRs and ALL Personnel records (often called the 201 file by USMC, USN and maybe by AF and USA too.

Then again maybe the VARO has those records.

Have you ever seen your actual SMRs and 201 files?

I have a friend stuck in appeals for over 10 years until he took my advice and got his 201 file from NARA.

With the info in that file, which VA had never requested, his VA doctor was able to prepare an excellent nexus letter and he finally got his award and mega retro.

I have used that philosophy for all of my claims too.

If I don't like what the VA says about something, I sure check it out on my own.