Veteranclaims’s Blog

March 21, 2009

Neative evidence, Quotes, NoN-attorney,

Filed under: Uncategorized — veteranclaims @ 9:00 pm

NoN-attorney found quotes on negative evidence:

See Amin v. Merit Sys. Prot. Bd., 951 F.2d 1247, 1254 (Fed. Cir. 1991) (Negative evidence, actual evidence which weighs against a party, must not be equated with the absence of substantive evidence. Rebutting a presumption requires affirmative proof.).
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Morgan v. Principi, 327 F.3d 1357, 1358-59 (Fed. Cir. 2003) (“Negative evidence, actual evidence which weighs against a party, must not be equated with the absence of substantive evidence.”).
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Pursuant to 38 U.S.C. _ 5107(b), “when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.” The benefit-of-the-doubt standard in section 5107(b) is only applicable when the requirement of an “approximate balance of positive and negative evidence” is met. Ferguson v. Principi, 273 F.3d 1072, 1076 (Fed. Cir. 2001).
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See Forshey v. Principi, 284 F.3d 1335, 1363 (Fed. Cir. 2002) (the “absence of actual evidence is not substantive ‘negative evidence'”); see also McLendon, ___ Vet.App. at ___, No. 04-0185, slip op. at 8-9 (citing Forshey, supra).
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The Board’s reliance on in-service and post-service blood pressure readings that do not reflect high blood pressure suffers the same fate because, in the absence of independent medical evidence for a conclusion that normal blood pressure readings over an extended period of time establish that one does not have hypertension, these readings amount only to negative evidence. See id.; see also Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991) (holding Board may only consider independent medical evidence and may not substitute its own medical opinion). Thus, although the Board correctly found no medical evidence of Mr. Wright having been diagnosed with hypertension while in service, there also was no substantive medical evidence that he did not suffer from hypertension while in service. Thus, there is insufficient medical evidence of record to decide the claim without assessing whether a medical examination or opinion otherwise was required by section 5103A(d). See McLendon, ___ Vet. App. at ___, No. 04-0185, slip op. at 8-10.
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The DTRA letter can serve as no more than confirmation that he was with his unit, which was assigned about 50 miles from Hiroshima; beyond that, it amounts only to non-substantive negative evidence. See McLendon v. Nicholson, ___ Vet.App. ___, ___, No. 04-0185, slip op. at 8-9 (June 5, 2006); cf. Forshey v. Principi, 284 F.3d 1335, 1363 (Fed. Cir. 2002) (en banc) (Mayer, C.J., and Newman, J., dissenting on grounds not relevant here) (distinguishing between the existence of negative evidence and the absence of actual evidence, and noting that the “absence of actual evidence is not substantive ‘negative evidence'”).

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When there is evidence of a current disability and evidence indicating a possible nexus to service, a medical exam or opinion is needed, unless there is sufficient medical evidence of record to decide the claim. See 38 U.S.C. _ 5103A(d); McLendon v. Nicholson, ___ Vet.App. ___, ___, No. 04-0185, slip op. at 10, 2006 U.S. App. Vet. Claims LEXIS 355, at *22 (June 5, 2006). Here, the Board found that there “is no competent medical evidence which would indicate that [the] current [ diagnosis of] pancreatitis is the result of an event, injury, or diseases occurring in service, or that it could be related to the service-connected psychiatric condition” and that there “are no proven predicate facts upon which a doctor could give a competent nexus opinion.” R. at 4. The Board’s assessment, however, is derived from the absence of evidence and such evidence does not constitute substantive medical evidence that Mr. Moore’s current disability did not arise in service. See McLendon, ___ Vet.App. at ___, No. 04-0185, slip op. at 8-9, 2006 U.S. App. Vet. Claims LEXIS 355, at *17; cf. Forshey v. Principi, 284 F.3d 1335, 1363 (Fed. Cir. 2002) (en banc) (Mayer, C.J., and Newman, J., dissenting on grounds not relevant here) (distinguishing between the existence of negative evidence and the absence of actual evidence, and noting that “[t]he absence of actual evidence is not substantive ‘negative evidence'”). Thus, there is insufficient medical evidence of
record to decide the claim, necessitating an assessment whether a medical examination or opinion otherwise was required by section 5103A(d). See McLendon, ___ Vet.App. at ___, No. 04-0185, slip op. at 8-10, 2006 U.S. App. Vet. Claims LEXIS 355, at *17-20.
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from BUCHANAN v. NICHOLSON, No. 05-7174, DECIDED: June 14, 2006
“We also note that the Board found the opinion of the 2002 DVA examiner to be “the most persuasive evidence of record because it relies on the objective medical documents in the record rather that [sic] the slight probative recollections of the veteran, his relatives, acquaintances, and a service comrade.” (Appellant App. 22.) The examiner, however, ultimately relies not on the objective medical evidence, but rather the absence of such in reaching her opinion that the onset of Mr. Buchanan’s psychiatric symptoms did not occur during his first period of service or within one year following that service.[1] As the opinion summary states: “Thus, given the absence of any medical documentation from the veteran’s [first] period of active duty service . . . and given the absence of any medical documentation of psychiatric symptoms or treatment within the one-year presumptive period, . . . the veteran’s onset of symptoms of schizophrenia did not occur during his first period of active service or during the one year presumptive period.” (Appellant App. 52.)”

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