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Case Law To Use ? Hearing In 2 Weeks

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paulcolrain

Question

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 paulcolrain
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Bronco. the Dr. that did my exam is an orthopedic. this means that his credentials are good. it doesnt mean that he was able to write such a limited opinion. the law doesnt allow him to write the limited opinion yet he did.

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A nexus letter is a well-constructed building. It has no cracks. No weakness. It's sound legally both in case and controversy. Run it through this metric and see where you stand.https://asknod.wordpress.com/6051-2/

You have two weeks to cram in a lot of evidence. Once you lose, you can not submit more info or an IMO at the CAVC.

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  • HadIt.com Elder

Holey Moley two weeks eh!

Good Luck

...............................Buck

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