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Single Judge Application; 38 C.F.R. § 3.156(a) (2020); In general, evidence is “new” if it was not already submitted to agency adjudicators, and it is “material” if it “relates to an unestablished fact necessary to substantiate the claim.” 38 C.F.R. § 3.156(a); In Shade v. Shinseki, we explained that the “material evidence” requirement sets a “low threshold” that does “not require new and material evidence as to each previously unproven element of a claim.” 24 Vet.App. 110, 121 (2010); Instead, the Board must evaluate whether the “newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim.” Id. at 117;

Designated for electronic publication onlyUNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNo. 20-0496BRADLEY J. DONAGHUE, APPELLANT,V.DENIS MCDONOUGH,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before FALVEY, Judge.MEMORANDUM DECISIONNote: Pursuant...

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Single Judge Application; Claims for service connection for PTSD based on an in-service personal assault are governed by 38 C.F.R. § 3.304(f)(5),5 which lowers the evidentiary burden for corroborating the occurrence of an in-service personal assault stressor. See VA ADJUDICATION PROCEDURES MANUAL REWRITE (M21-1MR), pt. IV, subpt. ii, ch. 1, § D(17)(a), (m) (recognizing that veterans seeking service connection for PTSD based on personal assault “face unique problems documenting their claims,” including difficulty producing evidence to support the occurrence of a stressor, because “many incidents of personal trauma are not officially reported”);

Single Judge Application; Claims for service connection for PTSD based on an in-service personal assault are governed by 38 C.F.R. § 3.304(f)(5),5 which lowers the evidentiary burden for corroborating the occurrence of an in-service personal assault stressor. See VA ADJUDICATION PROCEDURES MANUAL REWRITE (M21-1MR), pt. IV, subpt. ii, ch. 1, § D(17)(a), (m) (recognizing that veterans seeking service connection for PTSD based on personal assault “face unique problems documenting their claims,” including difficulty producing evidence to support the occurrence of a stressor, because “many incidents of personal trauma are not officially reported”);

Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 13-0504 BD, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before BARTLEY, Judge. MEMORANDUM DECISION Note: Pursuant to U.S....

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Panel Application; CUE; Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012); section 1154(b)’s combat presumption; In his reply brief, appellant cites Reeves v. Shinseki, stating that in that decision the Federal Circuit held that failure to apply the combat presumption was clear and unmistakable error. Although that is true, appellant fails to provide the context of that holding. The Federal Circuit in Reeves held that the Board must apply section 1154(b)’s combat presumption to a veteran’s claimed disability even if he establishes an in-service incident or injury. In other words, it was error in that case for the Board not to consider whether Mr. Reeves had hearing loss while in service, despite the evidence that he had suffered from acoustic trauma in service;

Panel Application; CUE; Reeves v. Shinseki, 682 F.3d 988 (Fed. Cir. 2012); section 1154(b)’s combat presumption; In his reply brief, appellant cites Reeves v. Shinseki, stating that in that decision the Federal Circuit held that failure to apply the combat presumption was clear and unmistakable error. Although that is true, appellant fails to provide the context of that holding. The Federal Circuit in Reeves held that the Board must apply section 1154(b)’s combat presumption to a veteran’s claimed disability even if he establishes an in-service incident or injury. In other words, it was error in that case for the Board not to consider whether Mr. Reeves had hearing loss while in service, despite the evidence that he had suffered from acoustic trauma in service;

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 19-5212 LARRY W. MATTOX, APPELLANT, V. DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, APPELLEE. On Appeal from the Board of Veterans’ Appeals (Decided April 26, 2021) Kenneth M. Carpenter, of...

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Single Judge Application; acoustic trauma; Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012); In cases where noise exposure has been conceded, the Board must still determine whether a veteran is entitled to the combat presumption afforded under section 1154(b), because a failure to do so results in an analysis that “conflates the question of whether [a veteran] was exposed to acoustic trauma with the issue of whether he suffered permanent hearing loss while on active duty.”; Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). In Reeves, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) concluded that “although the record contained evidence of the cause of [the veteran’s] disability–acoustic trauma mortar blasts . . . –he still had the right to invoke the section 1154(b) presumption in order to show that he incurred the disability itself while in service.” Id. at 999 (emphasis in original);

Single Judge Application; acoustic trauma; Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012); In cases where noise exposure has been conceded, the Board must still determine whether a veteran is entitled to the combat presumption afforded under section 1154(b), because a failure to do so results in an analysis that “conflates the question of whether [a veteran] was exposed to acoustic trauma with the issue of whether he suffered permanent hearing loss while on active duty.”; Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). In Reeves, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) concluded that “although the record contained evidence of the cause of [the veteran’s] disability–acoustic trauma mortar blasts . . . –he still had the right to invoke the section 1154(b) presumption in order to show that he incurred the disability itself while in service.” Id. at 999 (emphasis in original);

Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 18-2097 VICTOR M. NORIEGA, APPELLANT, V. ROBERT L. WILKIE, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before GREENBERG, Judge. MEMORANDUM DECISION Note:...

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Single Judge Application; overlapping symptoms or signs; 38 C.F.R. § 3.317(a)(2)(i)(B); Tadlock v. McDonough;  the Board made a legal error in failing to fully consider § 3.317(a)(1). Tadlock, 2021 WL 2964328, at *7. “Neither the Board nor the VA” in this case considered whether the appellant’s conditions were characterized by overlapping symptoms or signs or whether either the etiology or pathophysiology of those conditions was partially understood. Id.; see R. at 11-26;  Tadlock, the Federal Circuit concluded that, where the Board failed to make relevant factual findings on matters open to debate because of a similar legal error, “[t]he proper course” was for the Court to remand for the Board to consider in the first instance whether the appellant’s illness “might be ‘defined by a cluster of signs or symptoms.’” 2021 WL 2964328, *8 (quoting 38 C.F.R. § 3.317(a)(2)(i)(B)). Accordingly, pursuant to Tadlock, the Court concludes that remand is required for the Board to make the relevant factual findings in the first instance. Id. at *7 (“Where additional findings of fact are necessary regarding matters open to debate, the proper action for the Veterans Court is to remand to the Board for consideration of those facts in the first instance.”);

Single Judge Application; overlapping symptoms or signs; 38 C.F.R. § 3.317(a)(2)(i)(B); Tadlock v. McDonough; the Board made a legal error in failing to fully consider § 3.317(a)(1). Tadlock, 2021 WL 2964328, at *7. “Neither the Board nor the VA” in this case considered whether the appellant’s conditions were characterized by overlapping symptoms or signs or whether either the etiology or pathophysiology of those conditions was partially understood. Id.; see R. at 11-26; Tadlock, the Federal Circuit concluded that, where the Board failed to make relevant factual findings on matters open to debate because of a similar legal error, “[t]he proper course” was for the Court to remand for the Board to consider in the first instance whether the appellant’s illness “might be ‘defined by a cluster of signs or symptoms.’” 2021 WL 2964328, *8 (quoting 38 C.F.R. § 3.317(a)(2)(i)(B)). Accordingly, pursuant to Tadlock, the Court concludes that remand is required for the Board to make the relevant factual findings in the first instance. Id. at *7 (“Where additional findings of fact are necessary regarding matters open to debate, the proper action for the Veterans Court is to remand to the Board for consideration of those facts in the first instance.”);

Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 20-2679 MICKIE J. HUDSON, APPELLANT, V. DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before MEREDITH, Judge. MEMORANDUM DECISION Note:...

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Single Judge Application;  Tadlock v. McDonough is potentially pertinent and significant authority. _ F.4th _, No. 2020-1762, 2021 WL 2964328 (Fed. Cir. July 15, 2021) (“Affirmance in the face of an error may be made by the Veterans Court only if the record already contains findings made previously by VA or the Board that support affirmance or the entire record makes evident that the Board could not have reached any other decision.”);

Single Judge Application; Tadlock v. McDonough is potentially pertinent and significant authority. _ F.4th _, No. 2020-1762, 2021 WL 2964328 (Fed. Cir. July 15, 2021) (“Affirmance in the face of an error may be made by the Veterans Court only if the record already contains findings made previously by VA or the Board that support affirmance or the entire record makes evident that the Board could not have reached any other decision.”);

Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 20-1483 THOMAS E. HOGLAND, APPELLANT, V. DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before MOORMAN, Senior Judge.1 MEMORANDUM DECISION...

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Single Judge Application; Tadlock v. McDonough, F.4th, 2021 WL 2964328 at *7 (Fed. Cir. July 15, 2021)(holding that the Court’s statutory duty to consider prejudicial error “does not give it the right to make de novo findings of fact or otherwise resolve matters that are open to debate”); Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (“[A]ppellate tribunals are not appropriate fora for initial fact finding.”);

Designated for electronic publication onlyUNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNo. 20-3581HENRY L. SHATTEEN, APPELLANT,V.DENIS MCDONOUGH,SECRETARY OF VETERANS AFFAIRS, APPELLEE.Before BARTLEY, Chief Judge.MEMORANDUM DECISIONNote:...

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Nailos v. McDonough, No. 19-0517  (Argued June 17, 2021 Decided August 10, 2021);  under what circumstances 38 C.F.R. § 3.402(c)(1) permits an effective date for the award of increased dependency and indemnity compensation (DIC) based on the need for aid and attendance earlier than the date of receipt of the claim for aid  and attendance benefits; Court concludes that § 3.402(c)(1) does not permit an effective date earlier than the date of the aid and attendance claim unless DIC is in effect for a period prior to the date of the DIC claim;

Nailos v. McDonough, No. 19-0517 (Argued June 17, 2021 Decided August 10, 2021); under what circumstances 38 C.F.R. § 3.402(c)(1) permits an effective date for the award of increased dependency and indemnity compensation (DIC) based on the need for aid and attendance earlier than the date of receipt of the claim for aid and attendance benefits; Court concludes that § 3.402(c)(1) does not permit an effective date earlier than the date of the aid and attendance claim unless DIC is in effect for a period prior to the date of the DIC claim;

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMSNo. 19-0517JOAN NAILOS, APPELLANT,V.DENIS MCDONOUGH,SECRETARY OF VETERANS AFFAIRS, APPELLEE.On Appeal from the Board of Veterans’ Appeals(Argued June 17, 2021 Decided August 10,...

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Single Judge Application; Wait v. Wilkie, 33 Vet.App. 8, 17 (2020);  The Court held in Wait v. Wilkie, 33 Vet.App. 8, 17 (2020), that “[t]o establish the presence of a disability . . . there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity, which may include showing manifestations of a similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person.” In this respect, the veteran’s statement does not suggest, even remotely, that he has a left shoulder disability that caused functional impairment or affected his earning capacity. R. at 1199;

Single Judge Application; Wait v. Wilkie, 33 Vet.App. 8, 17 (2020); The Court held in Wait v. Wilkie, 33 Vet.App. 8, 17 (2020), that “[t]o establish the presence of a disability . . . there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity, which may include showing manifestations of a similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person.” In this respect, the veteran’s statement does not suggest, even remotely, that he has a left shoulder disability that caused functional impairment or affected his earning capacity. R. at 1199;

Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 19-9062 ANDREW M. THORPE, APPELLANT, V. DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before TOTH, Judge. MEMORANDUM DECISION Note:...

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Single Judge Application; “[e]ven though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection.” Polovick v. Shinseki, 23 Vet.App. 48, 52–53 (2009); factors such as “whether a medical professional finds studies persuasive, whether there are other risk factors that might be the cause of the condition for which benefits are sought, and whether the condition has manifested itself in an unusual manner” may affect the analysis. Polovick, 23 Vet.App. at 53;

Single Judge Application; “[e]ven though a disease is not included on the list of presumptive diseases, a nexus between the disease and service may nevertheless be established on the basis of direct service connection.” Polovick v. Shinseki, 23 Vet.App. 48, 52–53 (2009); factors such as “whether a medical professional finds studies persuasive, whether there are other risk factors that might be the cause of the condition for which benefits are sought, and whether the condition has manifested itself in an unusual manner” may affect the analysis. Polovick, 23 Vet.App. at 53;

Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 20-4275 REUBEN D. HINOJOSA , APPELLANT, V. DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before BARTLEY, Chief Judge. MEMORANDUM DECISION...

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Panel Application; Delrio v. Wilkie, 32 Vet.App. 232, 243 (2019); Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994); context for subjective terms contained in the DC; the Board simply relied on the November 2017 examiner’s assessment that Mr. Chavis’s radiculopathy was moderate in severity, R. at 11-12; however, “the Board cannot uncritically adopt an examiner’s assessment of the veteran’s level of disability as its own without reconciling that assessment with the other evidence of record,” Delrio v. Wilkie, 32 Vet.App. 232, 243 (2019) (citing Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994) (noting that a medical opinion is “only that, an opinion” providing medical evidence)). As the Board failed to provide context for subjective terms contained in the DC, the Court agrees with the parties and concludes that the Board failed to provide adequate reasons or bases for its decision. See Caluza, 7 Vet.App. at 506;

Panel Application; Delrio v. Wilkie, 32 Vet.App. 232, 243 (2019); Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994); context for subjective terms contained in the DC; the Board simply relied on the November 2017 examiner’s assessment that Mr. Chavis’s radiculopathy was moderate in severity, R. at 11-12; however, “the Board cannot uncritically adopt an examiner’s assessment of the veteran’s level of disability as its own without reconciling that assessment with the other evidence of record,” Delrio v. Wilkie, 32 Vet.App. 232, 243 (2019) (citing Gabrielson v. Brown, 7 Vet.App. 36, 40 (1994) (noting that a medical opinion is “only that, an opinion” providing medical evidence)). As the Board failed to provide context for subjective terms contained in the DC, the Court agrees with the parties and concludes that the Board failed to provide adequate reasons or bases for its decision. See Caluza, 7 Vet.App. at 506;

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 18-2928 MICHAEL L. CHAVIS, APPELLANT, V. DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, APPELLEE. On Appeal from the Board of Veterans’ Appeals (Argued November 20, 2019 Decided April 16,...

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Buffington v. McDonough, No. 2020-1479( Decided: August 6, 2021 ); “statutory gap” and Chevron step one; we hold § 3.654(b)(2) reasonably fills a statutory gap; 38 C.F.R. § 3.654(b)(2) (setting effective date for recommencement of compensation, at the earliest, one year before filing);

United States Court of Appeals for the Federal Circuit THOMAS H. BUFFINGTON,Claimant-Appellantv.DENIS MCDONOUGH, SECRETARY OFVETERANS AFFAIRS,Respondent-Appellee 2020-1479 Appeal from the United States Court of Appeals forVeterans Claims in No....

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Single Judge Application;  Chavis v. McDonough, which issued after the Board’s decision, the Court found that the Board had jurisdiction to consider the proper initial rating for the appellant’s radiculopathy in connection with his appeal of an increased rating for his low back disability rating, reaffirming that “VA’s consideration of . . . neurologic manifestations as part of the claim seeking higher compensation for the lumbar spine disability is . . . consistent with VA’s duty to sympathetically read pro se pleadings.” No. 18-2928, 2021 WL 1432578, at *12 (Vet. App. Apr. 16, 2021); VA’s duty to sympathetically read a claimant’s filings, but also with the VA Adjudication Procedures Manual, M21-1, which the Court noted directs adjudicators to consider a claimant’s request for benefits for “a new neurological complication” as a request for an increased rating for the underlying spine disability. Id. (citing VA ADJUDICATION PROCEDURES MANUAL, M21-1, pt. III, subpt. iv, ch. 4, § A.5);

Single Judge Application; Chavis v. McDonough, which issued after the Board’s decision, the Court found that the Board had jurisdiction to consider the proper initial rating for the appellant’s radiculopathy in connection with his appeal of an increased rating for his low back disability rating, reaffirming that “VA’s consideration of . . . neurologic manifestations as part of the claim seeking higher compensation for the lumbar spine disability is . . . consistent with VA’s duty to sympathetically read pro se pleadings.” No. 18-2928, 2021 WL 1432578, at *12 (Vet. App. Apr. 16, 2021); VA’s duty to sympathetically read a claimant’s filings, but also with the VA Adjudication Procedures Manual, M21-1, which the Court noted directs adjudicators to consider a claimant’s request for benefits for “a new neurological complication” as a request for an increased rating for the underlying spine disability. Id. (citing VA ADJUDICATION PROCEDURES MANUAL, M21-1, pt. III, subpt. iv, ch. 4, § A.5);

Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 19-4445 BERNARD A. STEGMUELLER, APPELLANT, V. DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before SCHOELEN, Senior Judge.1 MEMORANDUM...

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Single Judge Application; Walsh v. Wilkie, 32 Vet.App. 300, 306-07 (2020) (holding that, when using obesity as an “intermediate step” in a secondary-service-connection analysis, such analysis may include linkage through secondary aggravation);

Single Judge Application; Walsh v. Wilkie, 32 Vet.App. 300, 306-07 (2020) (holding that, when using obesity as an “intermediate step” in a secondary-service-connection analysis, such analysis may include linkage through secondary aggravation);

Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 20-0591 TYRONE S. FREELAND, APPELLANT, V. DAT P. TRAN, ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before BARTLEY, Chief Judge. MEMORANDUM...

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