Important Cases to Know About!
The following are excerpts from cases that have been adjudicated over the years, and sections of pertinent code. This list is by no means complete, but look through it and see if there is anything that applies to your situation.
38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2009)
When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990)
The United States Court of Appeals for Veterans Claims (the Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.”
38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009)
In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate claims for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claims. An examination is deemed “necessary” if the record does not contain sufficient medical evidence for VA to make a decision on the claims.
Coburn v. Nicholson, 19 Vet. App. 427 (2006).
A medical opinion cannot be disregarded solely on the rationale that the medical opinion is based on a history provided by the veteran.
Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)
Depending on the evidence and contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis of a condition.
38 C.F.R. § 3.159(a)(2); see also Layno v. Brown, 6 Vet. App. 471 (1994).
Lay persons are competent to provide evidence regarding things they have personally observed, including symptoms that are capable of lay observation and when those symptoms occurred.
Buchanan v. Nicholson, 451 F.3d 1331, 1137 (Fed. Cir. 2006)
The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.
Clemons v. Shinseki, 23 Vet. App. 1 (2009)
The Board notes that the Veteran’s claim constituted a claim for service connection for an acquired sychiatric disability, however diagnosed. As such, the claim must be considered a claim for service connection for any and all psychiatric disabilities clinically indicated.
DON’T LET THEM TELL YOU THAT IF YOU DON’T HAVE ALL THE SYMPTOMS YOU GET THE NEXT LOWEST RATING!!!!!!!!!!!!!!!!!!
“The Board is aware that the Veteran does not have all of the
symptoms listed in the criteria for a 50 percent rating –
namely, circumstantial, circumlocutory or stereotyped speech;
panic attacks more than once a week; difficulty in
understanding complex commands; and impaired judgment. See
38 C.F.R. § 4.130. The Veteran is not required to prove the
presence of all, most, or even some, of the enumerated
symptoms recited under the rating criteria. The use of the
term “such as” in the general rating formula for mental
disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms
after that phrase are not intended to constitute an
exhaustive list, but rather are to serve as examples of the
type and degree of symptoms, or their effects, that would
justify a particular rating.” See Mauerhan v. Principi, 16
Vet. App. 436, 442 (2002).