;

Wise v. Shinseki, 26 Vet.App. 517, 531 (2014)

VA Law

“…apply the correct standard of proof for determining that issue; The examiner rejected the scientific evidence because it did not definitely establish a causal link as a generally accepted principle. However, “Congress has not mandated that a medical principle have reached the level of scientific consensus to support a claim for VA benefits.” Wise v. Shinseki, 26 Vet.App. 517, 531 (2014). Although the examiner rejected the scientific research evidence, “this did not relieve the Board of its obligation to consider and discuss the potentially favorable medical literature of record” that supported Mr. Lardinois’s theory of service connection and “to apply the correct standard of proof for determining that issue.” Id. at 531-32; see R. at 353-37 (scientific literature submitted by Mr. Lardinois). However, the Board did not discuss the scientific research evidence submitted by Mr. Lardinois; instead, it adopted the examiner’s opinion and his rejection of the scientific evidence without addressing or reconciling that opinion with the proper adjudicative standard of proof…”

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 20-0344
RICHARD LARDINOIS, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
BARTLEY, Chief Judge: Veteran Richard Lardinois appeals through counsel an
October 1, 2019, Board of Veterans’ Appeals (Board) decision that denied service connection for
cervical and thoracic spine conditions, bilateral hearing loss, and hypertension. Record (R.) at 5-15. For the reasons that follow, the Court will set aside the October 2019 Board decision and
remand the matters for further development and readjudication consistent with this decision.
I. FACTS
Mr. Lardinois served honorably in the U.S. Army from March 1968 to March 1970,
including service in the Republic of Vietnam. R. at 821.
Prior to service, Mr. Lardinois was injured during a January 1967 car accident resulting in
a whiplash injury. See R. at 847. As of September 1967, Mr. Lardinois was still experiencing
residual cervical pain. See id.
During the January 1968 pre-induction examination, a service physician noted that a neck
examination was negative as Mr. Lardinois demonstrated full range of motion, no spasm or
tenderness, and no crepitation. R. at 843. The physician also noted that Mr. Lardinois demonstrated
2
“defective hearing” and assigned a “2” for hearing on the PULHES scale.1 R. at 844 (reflecting a
hearing acuity threshold of 55 decibels (dB) in the left ear at 4000 Hertz (Hz)).
Service medical records reflect that Mr. Lardinois received treatment for cervical and upper
thoracic pain resulting from the whiplash injury. R. at 841, 850-55. Continue Reading

 


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