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").
Question
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.
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