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Does a Citation set a precedent?


dwbell99
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  • HadIt.com Elder

A citation in what context?

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ie.

Citation Nr: 0720781	

Wondering how much 'weight' using Citation(s) as references in a Supplemental Claim or HLR

Edited by dwbell99
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Citations are normally issued by the BVA.  They are not precedent setting decisions.   Only 3 judge CAVC decisions are precedent setting. 

Edited by JKWilliamsSr
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  • HadIt.com Elder

Yeah, they are only relevant in the context of that decision.

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However , when BVA 'cites regulations- as they do in every decision they make, those regulations could help a vet succeed in some cases. Also BVA 'cites" Precedent Opinions from the CAVC.

This veteran , under the Citation Number won on a re open:

ORDER

New and material evidence having been received, the claim for 
service connection for a low back disability is reopened.

Service connection for degenerative disc disease of the 
lumbar spine on a secondary basis is granted.

https://www.va.gov/vetapp07/files3/0720781.txt

The claim was remanded for an additional disability:

"The veteran also asserts that service connection is warranted for a right ankle disability secondary to his service connected residuals of a fracture of the left ankle."

For my current CUE claims I cited a Precedent Office of General Counsel Opinion. ..and sent it to them.The VA violated 38 CFR 4.6 by not applying that OGC decision to two of my claims.

 

Edited by Berta
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I submitted everything that pertained to my claim.

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I am looking at using Citations as follows:

VA examiner's undocumented statement that "In order for the ankle pain to have contributed to the development of the lumbar Degenerative Disc Disease, Degenerative Joint Disease, stenosis, neuropathy/radiculopathy the gait would have to be significantly antalgic and even then it would be unlikely to cause the conditions above" is of questionable probative value because of the following:

    1. “If a patient has a condition (i.e. a painful lower back) proximal to the foot and it is aggravated during or after walking or standing, that may be a good indicator that foot dysfunction is the cause or a contributor to the problem”, as stated in PEER REVIEW SUPPORTING THIS MEDICAL OPINION (When Lower Extremity Dysfunction Contributes to Back Pain) Dr. George C Tractable DPM listed in the REMARKS of supplemental claim for Back (Thoracolumbar Spine) Conditions DBQ, by Dr SB, dated 10/18/2017 contradicts the VA examiner's rationale as follows:

    2. Citation Nr: 0720781 Decision Date: 07/12/07 states that competent medical evidence establishes that the veteran's left ankle disability contributed to the development of degenerative disc disease of the lumbar spine.

    3. Citation Nr: 1309805 Decision Date: 03/22/13 states a low back disability, diagnosed as degenerative joint disease and mechanical chronic low back pain, is proximately due to or the result of the Veteran's service-connected bilateral foot and knee disabilities. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. § 3.102 (2012).
    
    4. Citation Nr: 1522367 Decision Date: 05/27/15 states that evidence is in equipoise as to whether the Veteran's low back, bilateral knee and left ankle disabilities have been caused by his service-connected post-traumatic arthritis of the right ankle.

    5. Citation Nr: 18132287 Decision Date: 09/06/18 states service connection for a low back disability, claimed as secondary to a service-connected left ankle disability, is granted.

 

Edited by dwbell99
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Berta and the others have given you good correct info about citations and 3 judge panel court decisions.

However at the very end of my claims and appeals I do use none precedent setting BVA and court decisions as a next to last argument for my claim if the details of the BVA/court decision exactly match my own claim or appeal in order to let the VA dudes know that my claim and appeal is more than justified and it frankly makes me feel better that they know I have a valid claim

I of course also use any 3 judge panel Fed Court or CAVC court decisions that also bolster my claim and appeals.

None of this matters with the initial VARO raters as they have already decided to deny my claim regardless of the strong evidence I submitted on my behalf even if they list the evidence I submitted then the ****** raters say in one brief ending sentence say that there is no evidence to support my claim.  A liar is a liar is a liar.

I believe I gave you this same answer on another forum I use to visit until recently. 

 

Edited by Dustoff 11
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Many vets have tried to succeed at the BVA ,over the years,  by using other BVA decisions for a similar or even same disability issue.

But each BVA decision only applies to the veteran it is rendered to. Often a very  limited amount of the veterans' evidence is mentioned,so we rally do not have all the facts of each BVA decisions.

The BVA has started recently to post this info at the end of their decisions:

"The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303."

I did use a BVA decision link and qtoe from it however for my  recent AO HBP claim....as it supported what the VA web site stated:

The BVA decisiion stated:

  This opinion is notable because it cites to a National Academy of Sciences recent Agent Orange Update, which concluded from a review of pertinent studies that there was no longer “limited or suggestive” evidence, but there was now “sufficient” epidemiologic evidence, of a positive association between hypertension and herbicide exposure.  See Veterans and Agent Orange: Update 11 (2018).  After reliance on such public

  "This opinion is notable because it cites to a National Academy of Sciences recent Agent Orange Update, which concluded from a review of pertinent studies that there was no longer “limited or suggestive” evidence, but there was now “sufficient” epidemiologic evidence, of a positive association between hypertension and herbicide exposure.  See Veterans and Agent Orange: Update 11 (2018).  "

The veteran's IME doctor cited this study.I cited and enclosed part of this  same study. I also had an IMO.

The VA's upgraded there web site the same month this decision was rendered:

"If you have an illness you believe is caused by contact with Agent Orange—and you don’t see it listed above

You can still file a claim for disability compensation.

You’ll need to:

  • Provide scientific and medical evidence that the condition is related to exposure to Agent Orange, or
  • Show that the problem started during—or got worse because of—your military service

Scientific proof may include an article from a medical journal or a published research study."

https://www.va.gov/disability/eligibility/hazardous-materials-exposure/agent-orange/related-diseases/

I wrote to  the Secretary Wilkie with a strong argument as to why, due to this study, that Hypertension, in any Vietnam veteran, with no known cause, should be granted as service connected , based on the NAS scientific findings.

It could potentially become a presumptive but vets can file now....particularly if the VA has deemed their HBP "Essential" meaning no known cause.

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  • Content Curator/HadIt.com Elder
7 hours ago, dwbell99 said:

    3. Citation Nr: 1309805 Decision Date: 03/22/13 states a low back disability, diagnosed as degenerative joint disease and mechanical chronic low back pain, is proximately due to or the result of the Veteran's service-connected bilateral foot and knee disabilities. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. § 3.102 (2012).

There are different types of citations. At the start of the paragraph is a BVA citation.

The citation I highlighted in bold cites the laws and/or court precedent rulings which are essentially the law.

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