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Editor: Colin Miller
Univ. of South Carolina School of Law

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Wednesday, February 4, 2009

Bullet In The Brain: Court Of Appeals Of Veterans Claims References Federal Rules Of Evidence In Entitlement Appeal

The recent opinion of the United States Court of Appeals for Veterans Claims in Mynhier v. Shinseki, 2009 WL 230234 (Vet.App. 2009), is a good example of how veterans affairs courts are not bound by the Federal Rules of Evidence but still frequently look to them for guidance.

In Mynhier, Raymond F. Mynhier served in the Army until 1970, including a stint in Vietnam, during which he was exposed to Agent Orange. Recently, Mynhier sought:

"entitlement to service connection for (1) a sleep disorder, (2) a gall bladder disability, (3) a disability of the liver, and also denied (4) a disability rating in excess of 50% for residuals of a shell fragment wound of the right parietal skull, (5) a disability rating in excess of 10% for residuals of brain trauma with seizures prior to April 13, 2004, and in excess of 40% thereafter, (6) a disability rating in excess of 10% for residual numbness and paresthesia of the left lower extremity prior to April 13, 2004, and in excess of 40% thereafter, and (7) a compensable disability rating for residual paresthesia of the left hand prior to April 13, 2004, and a disability rating in excess of 20% thereafter."

The Board of Veterans' Appeals denied him this entitlement, prompting his pro se appeal to the United States Court of Appeals for Veterans Claims, which affirmed some of the Board's denials and set aside and remanded some others for readjudication.

One of the denials that the court affirmed was the denial of Mynhier's claimed entitlement to a disability rating in excess of 50% for residuals of a shell fragment wound of the right parietal skull. According to the court, Mynhier's wound was rated at 50% disabling, and to obtain a higher rating, the evidence had to "demonstate the presence of brain hernia, which is the 'protrusion of brain substance through the cranium.'"

The court then noted that the Board correctly found that there was no such evidence as it pointed to computed tomography (CT) scans of Mynhier's skull, which contained no indication of brain herniation." The court then concluded that "[b]rain herniation is the type of condition that one would certainly expect to be mentioned in the CT report if it existed. Cf. FED.R.EVID. 803(7) FED.R.EVID. 803(7) (hearsay exception for matters not included in business records if matter is of a kind that record is regularly made)."

The reason for the cf. citation is because the Federal Rules of Evidence do not generally apply to proceedings before the Department of Veterans Affairs Regional Office, the Board of Veterans' Appeals, or Court of Veterans Appeals. See, e.g., Cacalda v. Brown, 9 Vet.App. 26, 264 (Vet.App. 1996). But, as in Mynhier, these courts often do look to the Rules for guidance.

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/02/8037-vet-mynhie.html

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