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Denial of Veteran's Request for Free Medical Exam in Connection With Disability Claim Reversed

By Javier Lavagnino, Esq. on June 01, 2010 4:53 PM

In Colantonio v. Shinseki, No. 09-7067, the Federal Circuit faced a challenge to the decision of the United States Court of Appeals for Veterans Claims finding that petitioner was not entitled to a free medical examination in connection with his claim for compensation for a service-connected disability.

In reiterating the interpretation of subparagraph B adopted in Waters v. Shinseki, the court wrote: "[M]edically competent evidence is not required in every case to "indicate" that the claimant's disability "may be associated" with the claimant's service.  Of course, that is not to say that it will always be possible to establish a nexus through lay evidence, as there may be instances, such as Waters case itself, in which the lay evidence falls short of satisfying the statutory standard."

 Thus, in concluding that the Veterans Court may have applied an erroneous interpretation of 38 U.S.C. section 5103A(d)(2), the court vacated and remanded the judgment to permit the Veterans Court to reconsider its harmless error analysis in light of the proper interpretation of 38 U.S.C. section 5103A(d)(2). 

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