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Excerpt from decision below:
“The Court cannot ascertain the meaning of, and the Board cannot properly rely on, a medical opinion that substitutes “assume with relative probability” for the proper legal standard of “is it as likely as not.” That statement alone warrants remand for the Board to seek a new medical opinion applying the correct legal standard. Additionally, the 4 orthopedist did not provide an adequate rationale for his statement that because the appellant did not seek care for his knee until seeking disability, “one must also assume the knee pain extending from his injury in April 1962 is not to the extent that would warrant disability.” Id.; see Monzingo, 26 Vet.App. at 105.”
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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 18-1930
PAUL F.ECKMAN,APPELLANT,V.ROBERT L.WILKIE,SECRETARYOF VETERANS AFFAIRS,APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUMDECISIONNote: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Paul F. Eckman,through counsel, appeals aDecember28,2017, Board of Veterans’ Appeals (Board) decision that denied service connection for a left knee disability. Record ofProceedings(R.)at1-11. Because the Board relied on an inadequate medical examination, the Court will vacate the Board’s decision and remand the matter for a new examination and further adjudication.I. BACKGROUNDThe appellant served in the U.S. Marine Corps from February 1962 to October 1966. R. at 3819, 12828. In April 1970, he filed a compensation claim for a left knee disability. R. at 13595-98. VA denied the claim the following
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Single Judge Application; inadequate medical examination report; Green, 1 Vet.App. at 124-25; Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008); "assume with relative probability" does not equal the legal standard of "is it as likely as not";
Excerpt from decision below: "The Court cannot ascertain the meaning of, and the Board cannot properly rely on, a medical opinion that substitutes "assume with relative probability" for the proper legal standard of "is it as likely as not." That statement alone warrants remand for the Board to seek a new medical opinion applying the...
