Don't Let VA Doctors Overstep
In a recent case, a VA doctor questioned the extent to which a veteran had a service-related back disability because there were no treatment records in service. The veteran served in the U.S. Army in the 1950s and filed his claim for a back disability in the 2000s. The Board of Veterans' Affairs (BVA) denied the claim based on the VA doctor examination. The court overturned the BVA decision. The doctor was ordered to do a new examination that took into account the veteran's testimony of treatment and x-rays of the back while in service.
VA Doctor Improperly Relies on Lack of Treatment Records - Finds Injury Resulted from Age Rather than Service
The same doctor reviewed his previous opinion. This time, he said he accepted the veteran's testimony of treatment and x-rays in service, but held that because there was no record of treatment and diagnosis of the back condition until 1970--a twelve year gap in records according to the doctor--he found that the back condition was most likely related to age.
Doctor is Legally Bound to Consider Lay Testimony
Of course, the doctor ignored the veteran's and his wife's testmony that he was treated for a back injury by three different doctors during the 12 year gap in records. Under a reasonable interpretation of the Buchanan and Jandreau cases, the VA is not permitted to ignore lay testimony of post-service treatment. The fact that the post-service treatment records are missing should make no more difference than missing service records.
The VA Doctor Must Write a New Opinion
Thus, it is my opinion that the VA doctor opinion is going to be thrown out again. The VA doctor is going to have to provide a new opinion, one that takes into account that the veteran continuously sought treatment for his back during the 12 year gap. The fact that the medical records are missing should have no bearing on the doctor's opinion, and he should accept the veteran's testimony of treatment after service. Given that the veteran can show continuous treatment through his testimony, the VA doctor should change his medical opinion and show that it is related to service.
For further reading, see the case of Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007).
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