stating that a medical opinion, expressed in terms of could, was sufficient to satisfy the nexus requirement of a well-grounded claim
How later courts described this case
- stating that a medical opinion, expressed in terms of could, was sufficient to satisfy the nexus requirement of a well-grounded claim
- stating that medical evidence as to nexus to service expressed as “could” suffices for requirement of well-grounded claim
- distinguishing Tirpak and stating in dictum that medical evidence as to nexus to service expressed as “could” suffices for requirement of well-grounded claim, with Alemany v. Brown, 9 Vet.App. 518, 519 (1996
Written by the judges who cited it.
The opinion
HOLDAWAY, Judge,
dissenting:
I do not believe that Dr. Faleao’s 1992 opinion was either new or material. It was merely cumulative of a previous opinion rendered by Dr. Permanente in 1983 and considered by the Board in a 1985 adjudication denying reopening. Both opinions were based on a history furnished by the appellant. Dr. Permanente said that the 1945 injury “possibly” predisposed him to an earlier onset of osteoarthritis than would be expected ordinarily. Presumably, in using the word possibly, he equally meant “possibly not.” Dr. Falcao merely stated that the injury “could” be a contributing factor. If anything, it seems to me, the only addition Dr. Falcao makes to this case is to highlight and reinforce the ambivalence of Dr. Perma-nente’s opinion. Compare with Paller v. Principi, 3 Vet.App. 535 (1992); see also Tirpak v. Derwinski, 2 Vet.App. 609 (1992). For much the same reason Dr. Falcao’s opinion is not new, it is also not material. By underlining the equivocal nature of the weak opinion furnished by Dr. Permanente, Dr. Falcao’s opinion actually decreases any reasonable possibility of changing the result of the previous adjudication. I, therefore, respectfully dissent.