Thursday, January 31, 2013

King v. Shinseki

      King v. Shinseki, docket no. 2011-7159 (Fed. Cir. Dec. 5, 2012)
The Federal Circuit affirmed a CAVC decision that found that the Board of Veterans’ Appeals properly considered lay evidence and found that it was outweighed by “competent medical evidence of record.” The majority here found that the Board and the CAVC did not act in violation of the Federal Circuit’s case law on the treatment of lay evidence, even though the Board cited older cases that had been overturned and appeared to expressly reject lay testimony as incompetent simply because the lay persons in question did not “possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation.”

In a strongly worded dissent, Judge O’Malley stated that “we have repeatedly have had to reverse the Veterans Court for endorsing the Board’s failure to even consider competent lay evidence when considering medical causation.” The dissent pointed out that there is no difference between the language used by the Board in this case and that used by the Board in Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) – so it is not clear why the majority found that this case involved merely a weighing of the evidence, whereas the Court in Davidson found that the categorical rejection of lay evidence as incompetent was impermissible.

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