CAVC Case 00-2382: Back

CAVCReal U.S. Court of Appeals for Veterans Claims (CAVC) decision · June 6, 2003 · FARLEY

This is a decision of the U.S. Court of Appeals for Veterans Claims — the federal court that reviews Board of Veterans' Appeals decisions, one level above the Board. Court decisions can vacate, reverse, or affirm what the Board did.

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Rating	Monthly (2026, incl. 2.8% COLA)
10%	$180.42
20%	$356.66
30%	$552.47
40%	$795.84
50%	$1,132.90
60%	$1,435.02
70%	$1,808.45
80%	$2,102.15
90%	$2,362.30
100%	$3,938.58

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Outcome

Reversed

Decision Date

June 6, 2003

Judge

FARLEY

Service Era

Not specified

Conditions Claimed

Back Knee Hip Eye Arthritis Hypertension

Issues on Appeal

BackKneeHipEyeArthritisHypertension

Why It Was Decided This Way

In the August 2000 BVA decision here on appeal denying the veteran's claim for service connection for DJD of the right hip, the Board determined that the veteran's claim for VA service connection for DJD of the right hip was well grounded within the meaning of section 5107(a) as in effect at that time.

§ 7261(a)(4) "clearly erroneous" standard of review is applicable to Board determination under 38 U.

The Board determined that more "weight" should be given to the opinion of the VA examiner, Dr.

First, the Board did not reject as lacking in credibility Dr.

Accordingly, because the Board found that clear and unmistakable evidence demonstrated that the appellant's right-hip disability preexisted service and found also that that disability had increased in severity during service (R.

In reaching the above decision to reverse as to aggravation in this case, we are mindful of the principles so cogently set forth by our recently retired colleague, Judge Holdaway, in Vanerson: Pursuant to the duty to assist, the Secretary is required to assist the claimant "in developing the facts pertinent to the claim"; that duty must be performed without regard to whether the evidence supports or detracts from the claim.

Once the claim has been developed, the Secretary is required to make an impartial decision affording the claimant the benefit of the doubt where the evidence is in equipoise.

and [(3)] of a nexus between the in-service injury or disease and the current disability (medical evidence)"), aff'd per curiam, 78 F.

Authorities Cited

Akins v. DerwinskiBagby v. DerwinskiBernklau v. PrincipiBrannon v. DerwinskiCaluza v. BrownCotant v. PrincipiCottle v. PrincipiDavenport v. BrownDoran v. BrownDyment v. PrincipiFaust v. WestFletcher v. DerwinskiGardner v. DerwinskiGreen v. Bock Laundry MachHampton v. GoberHarris v. WestHattlestad v. DerwinskiHolliday v. PrincipiJordan v. PrincipiJuarez v. PrincipiJunstrom v. BrownKinnaman v. PrincipiKutscherousky v. WestLaposky v. BrownMaggitt v. WestMiller v. WestMyers v. PrincipiRusso v. BrownSavage v. GoberSee Allday v. Brown

Regulations Cited (38 CFR / 38 USC)

38 CFR 3.303(b)38 CFR 3.303(b) (2002)38 CFR 3.30438 CFR 3.304(b)38 CFR 3.304(b) (1982)38 CFR 3.304(b) (1999)38 CFR 3.304(b) (2002)38 CFR 3.30638 CFR 3.306 (1999)38 CFR 3.306(a)38 CFR 3.306(b)38 CFR 3.307(a)(2)38 CFR 3.309(a) (2002)38 CFR 3.322(a)38 CFR 3.6338 CFR 3.63 (1949)38 USC 111038 USC 111138 USC 115338 USC 311

Denial Type

Credibility|No Nexus|Duty To Assist

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