“The VA examiner based her negative nexus opinion exclusively on a lack of evidence of treatment for sleep apnea while in service, or for 16 years after service…[r]elying on the absence of evidence in medical records to provide a negative opinion is contrary to established case law, and such opinions are therefore inadequate.”
Understand the difference between "negative evidence" and "lack of evidence".
If your doctor administers tests for, say, diabetes, and the results are negative, then that is "negative evidence". This would go "against your claim" for diabetes. However, if the doctor says your military service is absent a diagnosis of diabetes, then its possible, or even likely you could have still had diabetes because:
1. Maybe you were never tested for diabetes in service but you actually had it.
2. Maybe you were tested, but the doctor failed to enter this into your medical record.
3. Maybe your doctor entered it into your records, but for whatever reason, the rating specialist either could not find it, or, he top sheeted you and never bothered to read it.
Bottom line: Dont let VA deny you and put in the reasons and bases "your SMR's were negative for diabetes", because its a logic error to try to prove a universal negative.
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broncovet
Dont Let VA pull this one on you, but they try it all the time.
https://www.veteranslawblog.org/get-your-va-award-letter/
In pertinet part:
Understand the difference between "negative evidence" and "lack of evidence".
If your doctor administers tests for, say, diabetes, and the results are negative, then that is "negative evidence". This would go "against your claim" for diabetes. However, if the doctor says your military service is absent a diagnosis of diabetes, then its possible, or even likely you could have still had diabetes because:
1. Maybe you were never tested for diabetes in service but you actually had it.
2. Maybe you were tested, but the doctor failed to enter this into your medical record.
3. Maybe your doctor entered it into your records, but for whatever reason, the rating specialist either could not find it, or, he top sheeted you and never bothered to read it.
Bottom line: Dont let VA deny you and put in the reasons and bases "your SMR's were negative for diabetes", because its a logic error to try to prove a universal negative.
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broncovet
Dont Let VA pull this one on you, but they try it all the time. https://www.veteranslawblog.org/get-your-va-award-letter/ In pertinet part: Understand the difference between
MikeHunt
The VA can, and does, use absence of evidence to deny a claim. Every minute of every day. I hope you'd agree It would be equally absurd to claim that absence of evidence makes it likely you had an aff
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