Absence Of Evidence Is Not Evidence Of Absence!

[broncovet]

The VA pulls this ploy rather frequently. They deny you based on "evidence of absence". (The record is negative for any Treatment by the Veteran for xxx disease) They count that as "proof" you dont have the disease, when it probably means the VA lost your records, or put them in another Veterans file, or never bothered to order them all in the first place.

This is error.

Moreover, in Jandreau v. Nicholson, the U.S. Court of Appeals for the Federal Circuit noted

that identifying a form of cancer was an example of when a lay person—in this case, the

Board—would not be competent to identify a condition. 492 F.3d 1372, 1377 fn 4 (Fed. Cir. 2007).

Therefore, the only competent opinion as to the onset of the appellant's prostate cancer is Dr.

Tinetti's August 31, 2009, letter, which dates the onset of the appellant's prostate cancer in 1995-96.

Cf. Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) ("[T]he Board may not consider the absence

of evidence as substantive negative evidence.) Accordingly, the Board's requirement of a "definitive

diagnosis" and its determination that the presence of cancer earlier than 1998 was not indicated is

simply untenable. See DeLisio v. Shinseki, 25 Vet.App. 45, 56 (2011) ("entitlement to benefits for

a disability or disease does not arise with a medical diagnosis of the condition, but with the

manifestation of the condition . . .").

3Based on the foregoing, the Court holds that the Board clearly erred when it determined that

the preponderance of the evidence was not at least in equipoise as to an onset of the appellant's

prostate cancer earlier than 1998. See Hood v. Shinseki, 23 Vet.App. 295, 299 (2009) ("The Court

reviews factual findings under the 'clearly erroneous' standard such that it will not disturb a Board

finding unless, based on the record as a whole, the Court is convinced that the finding is incorrect.");

Mariano v. Principi, 17 Vet.App. 305, 313 (2003) (applying the "clearly erroneous" standard to

assess the Board's application of the "equipoise standard" under 38 U.S.C. § 5107(b)); see also

38 U.S.C. § 5107(b) ("When there is an approximate balance of positive and negative evidence

regarding any issue material to the determination of a matter, the Secretary shall give the benefit of

the doubt to the claimant."). Thus, the Court will reverse and remand the Board's decision for it to

assign an effective date of October 10, 2005. See Gutierrez v. Principi, 19 Vet.App. 1, 10 (2004)

(holding that reversal is the appropriate remedy when the Board's decision is clearly erroneous

because the "only permissible view of the evidence is contrary to the Board's decision").

Source: Walker vs McDonald

https://asknod.wordpress.com/

[Mikemmlj]

I saved my military records after I got out, that is the only thing that saved me in my claim. My service records were no where to be found according to DOD.

[Buck52]

If VA can't find Records don't they have to go on ''presumption? as long as he as A DD214 & Honorable Discharge any doubt goes to the veteran?

[Chuck75]

That's what you might think, and what the laws say, particularly when a "combat" veteran's claims are made.

The VA has traditionally thought and acted otherwise. Too many denied claims really don't comply with the law.

The VA has taken the attitude that it's necessary to fight many claims in court, even when it's obvious that they were wrong.

Often, the last resort defense has been to hide behind various laws limiting the government's liability.

Sometimes veterans win in court, sometimes they don't. Many of the wins cannot be used as a precedent, and are basically ignored by the VA, forcing

yet another and another similar court case for different veterans.

[john999]

The VA's favorite statement is that "Veteran's Records are silent regarding such and such". This is death toll ringing for your claim usually. I was examined by a VA dentist for TMJ. The doctor told me that there was nothing he could do about it. Much later when I looked at my SMC's the dentist had just written in " exam" and no DX, so the VA said my records were silent on TMJ and I lost. I got serious after that and got IME's for SC mental condition since VA drove me nuts .

John