Case Law To Use ? Hearing In 2 Weeks

[paulcolrain]

Single Judge Application, Horn v. Shinseki, 25 Vet.App. 231, 235 (2012); Presumption of Soundness

Filed under: Uncategorized — Tags: 235 (2012); Presumption of Soundness; clear and unmistakeable;, 25 Vet.App. 231, Horn v. Shinseki — veteranclaims @ 4:25 pm

Excerpts from decision below:

“To be clear, the aggravation prong of the presumption of soundness requires VA to rely on affirmative evidence that there was no aggravation. Horn v. Shinseki, 25 Vet.App. 231, 235 (2012) (stating that “VA may not rest on the notion that the record contains insufficient evidence of aggravation,” and the Secretary’s failure “to produce clear and unmistakable evidence of lack of aggravation” entitles a claimant to a finding of in-service aggravation of the preexisting condition).”

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“Where, as here, the burden is on the Government to prove by clear and unmistakable evidence lack of aggravation, and VA has had a full opportunity

to develop the record, “the Court’s role is . . . to assess whether the

Secretary has succeeded in carrying his burden.” See Horn, 25 Vet.App. at 243. If, as the Court concludes in this case, for reasons set forth more fully below, the Secretary fails to carry his burden of proving lack of aggravation by clear and unmistakable evidence, “reversal, not remand, is . . . the appropriate remedy.” Id. (holding that reversal is the appropriate remedy where the Secretary has failed to carry his burden of proving lack of aggravation).”

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“In this case, the only affirmative evidence of record relied on by the Board to establish lack of aggravation is the June 2010 VA examiner’s report. See R. at 11-12; see also Douglas v. Shinseki, 23 Vet.App. 19, 24 (2009) (“[T]he Secretary’s authority to develop a claim necessarily

includes the authority to collect and develop evidence that might rebut the presumption of service connection.”). However, a review of the June 2010 examiner’s opinion reveals that the examiner’s opinion does not rise to the level of clear and unmistakable evidence. See Horn, 25 Vet.App. at 242 (Court’s assessment of the sufficiency of a physician’s report concerning lack of aggravation is “a significant part of what the Court does on de novo review”).

First and foremost, the only rationale provided by the June 2010 VA

examiner to support his conclusion that the appellant’s right club foot was not aggravated by service shows that the examiner relied on the absence of objective evidence of aggravation –particularly, the lack of notation in the

service medical records of an injury or event. “As the Court noted in Horn, reliance on the absence of record evidence of worsening is flawed because it “effects an impermissible burden shift” to the veteran to show an increase in disability during service. 25 Vet.App. at 239. In addition, the examiner did not provide a medical explanation for his conclusion, supported by extant medical knowledge and the facts of record. See id. at 240 (indicating in the context of evaluating whether the Secretary’s proof is sufficient to rebut the presumption of soundness that “there is no reason that the Court should not follow its caselaw that … an unexplained conclusory [medical] opinion is entitled to no weight in a service-connection context (citing Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008))).

As a result, the Court concludes that the June 2010 opinion is inadequate and Board erred in relying on the examination.”

My comp and penn Dr. Bader lucas written answer was this “COMPENSATION AND PENSION EXAMINATION MEDICAL OPINION

The service record does not document any high energy injury, such as fracture or dislocation to veteran's left hip. In the abscence of such findings aggrvation the natural course a veteran's pre-existing condition is less likely as not

Edited May 10, 2015 by paulcolrain

[broncovet]

Someone else may have the case law, but I will try to summarize.

Your gonna need to attack the Doctors credentials, not the docs opinion. A medical opinion must be rebutted by a medical opinion, lay evidence can not rebut a medical opinion.

Ask to see the Doc's credentials: Is the doctor experienced in your condition? Or is he just a general doc? Did he review your file, and so state in the C and P exam?

Read Chris Attig's opinion on rebutting a bad C and P exam:

http://www.attiglawfirm.com/communicate/inadequate-c-and-p-exams/

[paulcolrain]

i guess my opinion is that the c & p doc gave no medical evidence just based his opinion that the service treatment records do not provide evidence of. and the horn case states that : As the Court noted in Horn, reliance on the absence of record evidence of worsening is flawed because it “effects an impermissible burden shift” to the veteran to show an increase in disability during service. 25 Vet.App. at 239.

so on the merit they need to have no weight on Dr. opinion.

also this statement is interesting: See Horn, 25 Vet.App. at 243. If, as the Court concludes in this case, for reasons set forth more fully below, the Secretary fails to carry his burden of proving lack of aggravation by clear and unmistakable evidence, “reversal, not remand, is . . . the appropriate remedy.” Id. (holding that reversal is the appropriate remedy where the Secretary has failed to carry his burden of proving lack of aggravation).”

Edited May 10, 2015 by paulcolrain

[Gastone]

You have a BVA hearing in 2 weeks and your worried about case law? This is like cramming for exams, seldom works out. 2 weeks is the old "Blink of an Eye." From your previous post and this is just my negative take on your claim, you need a VA Certified Lawyer. 80% of Retro is better than 100% of no award, continued denial and no Retro. Are you expecting to get 100% SC out of your appeal or what exactly do you think you should be rated at? Are you prepared to wait another couple years for a CAVC hearing where you would be a fool to venture without competent Legal Assistance?

I find it very troubling that 2 weeks prior to your scheduled BVA hearing your not locked and cocked, evidence wise. You're about to argue case law with a VA Attorney without legal assistance. I could be wrong, but I just can't see a favorable outcome on the horizon. Normally I don't think "LUCK" has any part in VA Appeals but I have to make an exception here. I do wish you Good Luck and throw in I "Hope" you prevail.

Semper Fi

Gastone

[paulcolrain]

thank you gastone for your opinion. to answer,,, i have been preparing for months now you could look at past posts of mine. this post was just for generating new views on this part of the horn case.

[broncovet]

Again, read what Christ Attig, the attorney, has to say about bad C and P exams. You can ask for the credentials of the examiner...his CV. Then, if this doc does not have expertise in your area, then you can ask that exam be thrown out and they may get you a new exam.

[paulcolrain]

Service connection should be granted for my disability resulting from disease or injury incurred in or aggravated by my active military service pursuant to 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303

(1) medical evidence of a current disability

a) I have evidence of in service diagnosis and post service diagnosis. As long as a disability existed while claim was filed then this prong is satisfied.

2. medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury,

(a) my statements presented to original claim 1 month after discharge. Lay reports of the rigors of military training causes injuries or aggravation

(b) dr reports stating that the rigors of military training could of course end iin a result of my issues.

© inservice notation on Dr. report stating that I have had issues and pain within my hips during Physical training.

3. medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303

(a) lay testimony in written statements from a nurse describing the nexus

(b) 2 Dr. opinion letter 1 is an imo

© lay medical definitions from books.

My Rebuttal to the RO denials

1) They used the wrong approach when deciding aggravation. They needed to show beyond a degree that NO AGGRAVATION OCCURRED.

2) They shouldn’t have relied on the opinion of the comp and penn Dr. because he stated the STRs didn’t show evidence of a high impact injury and he must then conclude that no aggravation occurred. He did this without any real medical refrences and didn’t theorise that any other way could have occurred.

3) They keep saying that my right sided hip strain was pre-existing service when in real there is no diagnosis before service to allow them to say this infact the reports all say that only left pre-existed service.

4) If they try to state that no level of aggravation occurred as a baseline than I have the judges opinions from the cvac stating that “ rises in phules testing is evidence of aggravation” and yes I have rises in phules from 1 under lower extremities to a permanent 3 under same during service.