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Case Law To Use ? Hearing In 2 Weeks
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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 by paulcolrainLink to comment
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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
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, l
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, th
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