Veteranclaims’s Blog

November 24, 2009

Lay Evidence, PTSD, McClendon v. Nicholson, No. 04-0185

Filed under: Uncategorized — Tags: , — veteranclaims @ 10:08 pm

Came across this informative site which looks at lay evidence, and PTSD.

This case may prove to be very important because it suggests, for example, that a combat veteran who has nightmares and flashbacks of combat would be entitled to a C&P exam to determine if the veteran has PTSD as a result of combat, if there is no PTSD exam in the record and if the veteran filed a claim for service connection for PTSD claiming combat stressors and stating that the symptoms began after service

Full Article at: www.wvajustice.com
Richard Paul Cohen, Esq. Attorney at Law

“In that case, McClendon v Nicholson,04 0185, June 5,2006, the Veterans Court noted that the VA must provide a medical exam if there is 1) evidence of a disability or recurrent symptoms of a disability, and 2) evidence establishing that an event, injury or disease occurred in-service, and 3) an indication that the disability or symptoms may be associated with military service, and 4) insufficient medical evidence to make a decision on the claim.

In listing those things which are sufficient to “indicate” that a current disability “maybe associated” with military service, the Court first observed that vague or equivocal medical evidence (which would not be sufficient to prove that there was a link between a current disability and an in-service event) might be sufficient to indicate an association. Likewise, credible evidence of continuation of symptoms such as pain or other symptoms capable of lay observation might be sufficient.

The Court implied that examples of equivocal medical evidence which might be sufficient to indicate an association between the in-service injury and the current disability could include doctor’s statements with wording such as “it is possible”, or “it is within the realm of medical possibility”.

As examples of sufficient lay evidence, the Court noted that credible testimony of ringing in the ears ever since service during which the veteran was exposed noise from things such as a rifle range, bombing and artillery fire would be sufficient to indicate that a hearing disability may be associated with service. In addition, a veteran is fully competent to testify concerning the pain he may have suffered.

This case may prove to be very important because it suggests, for example, that a combat veteran who has nightmares and flashbacks of combat would be entitled to a C&P exam to determine if the veteran has PTSD as a result of combat, if there is no PTSD exam in the record and if the veteran filed a claim for service connection for PTSD claiming combat stressors and stating that the symptoms began after service

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