noting that generally “only the evidence in support of the claim is to be considered and generally a presumption of credibility attaches to that evidence in order to decide whether or not any VA claimant has sustained the claimant’s burden of submitting a well-grounded claim under section 5107(a)” (first emphasis added)
How later courts described this case
- noting that generally “only the evidence in support of the claim is to be considered and generally a presumption of credibility attaches to that evidence in order to decide whether or not any VA claimant has sustained the claimant’s burden of submitting a well-grounded claim under section 5107(a)” (first emphasis added)
- “once a combat veteran’s claim for service connection of a disease or injury alleged to have been incurred in or aggravated in combat service is well grounded ... then the claimant prevails on the merits unless VA produces ‘clear and convincing’ evidence to the contrary”
- noting legislative history for section 1154(b)
- “only the evidence in support of the claim is to be considered” in determining well groundedness
Written by the judges who cited it.
Later courts went against this
Overruled in part, on other grounds by Kessel v. West, 13 Vet. App. 9 (1999)
See Arms v. West, 12 Vet.App. 188, 195 (1999), overruled in part on other grounds by Kessel v. West, 13 Vet.App. 9 (1999) (en banc).
United States Court of Appeals for Veterans ClaimsSep 20, 19992 citing opinionsother groundsin partRead it
The opinion
HOLDAWAY, Judge,
concurring:
The majority’s holding that only an affirmative finding in the SMRs that the injury did not exist may serve as clear and convincing evidence to rebut the presumption of service incurrence under 1154(b) is too broad. Medical reports dated a relatively short time after an alleged injury, which fail to document a substantial and visible injury, are undoubtably probative of whether such an injury actually occurred during service, especially where the veteran’s separation physical also fails to report any residuals of the injury. In this matter, the appellant’s SMRs from November to December 1944 reported that the appellant was hospitalized for the greater part of December for treatment relating to injuries suffered from two shell blasts. That treatment took place only a short period after the appellant allegedly suffered shrapnel wounds from rolling over a *203 landmine while trying to escape enemy fire. Section 1154(b) does not preclude consideration of the fact that the treatment reports did not mention the shrapnel wounds when determining if the presumption of service incurrence has been rebutted. ' In fact, section 1154(b) does not preclude consideration of any evidence with respect to rebutting the presumption. The evidence in rebuttal must only be clear and convincing, i.e., it must have a high probative value. Section 1154(b) precludes weighing evidence that an injury had not been documented only when determining if the presumption attaches.
In this matter, the appellant alleges that he was treated at a field hospital for two to three weeks for his leg injuries. There are no records of such treatment. There are records pertaining to the first shell blast injuries which apparently occurred within a few days after the appellant was released from treatment from the landmine incident. The appellant stated that one piece of shrapnel went to the bone. However, there is nothing in the SMRs as to the shell blast injuries which indicates treatment of a leg wound. The appellant’s separation physical failed to note any scars on his legs. That evidence is probative of the fact that he did not have scars on his legs. However, it is not necessarily dispositive. Therefore, I agree that the SMRs did not rise to the level of clear and convincing evidence. For that reason, under the peculiar facts in this case, the claim for service connection of the scars on the appellant’s legs should be remanded for readjudication.