Opinion

Davis v. Gober

  • 10 Vet. App. 328
  • 1997 U.S. Vet. App. LEXIS 582
  • 1997 WL 418446
Court
United States Court of Appeals for Veterans Claims
Filed
Jul 28, 1997
Status
Published
Author
Steinberg
On the bench
Farley, Holdaway, Ivers, Kramer, Nebeker, Steinberg
Cited by
0 cases
Authority
More cited than 6.4%

The opinion

STEINBERG, Judge,

concurring:

I agree with the analysis of the appellant’s contentions in Judge Kramer’s concurring statement. There would appear to be some issues lurking in the dose-reconstruction process that bear inquiry, but not the ones raised by the appellant here.

For example, if the Court can declare, without direct statutory support, that medical evidence is required for certain Board findings (e.g., Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993), and Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990)) and that lay evidence is generally incompetent on medical questions (e.g., Grottveit, supra, and Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992)), then it is not apparent why the Court could not find that a dose-reconstruction method based on an assertedly false set of assumptions presents equally unreliable evidence. The Congress directed the Department of Defense, in section 7(a)(1) of Pub.L. No. 98-542, to prescribe guidelines for responding to Department of Veterans Affairs (VA) and VA claimant requests for radiation-dose estimates. Although section 7(b) of that law refers to VA use of a radiation-dose estimate from the Department of Defense and provides that, in resolving material differences between an estimate submitted by the Department of Defense and one submitted by the veteran, VA will obtain another estimate from an independent expert who will be selected by the Director of the National Institutes of Health, it does not appear that the law requires VA to make such requests of the Department of Defense or to do so in every case. Based on the broad language in section 5 of the law, it could be argued that other sources for dose estimates could be used and that Congress left that matter to the VA Secretary’s regulations mandated by that section.

Whether all this means that VA must accept as valid any radiation-dose estimate that the Department of Defense then provides under its guidelines and procedures is a question that might have been raised by the appellant. However, he neither raises that question nor challenges the process by which VA obtains dose-reconstruction data. As Judge Kramer’s concurring statement demonstrates, the questions that the appellant has raised are not meritorious.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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