R evid 801 d 2



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Description: Posts about Fed. R. Evid. 801(d)(2)(a) written by veteranclaims

Single Judge Application, Lay Evidence; Bryant v. Shinseki; Davidson v. Shinseki; Fed. R. Evid. 801(d)(2)(a)

Remember that single judge decision may not be cited as precedent, yet their reasoning in regard to an issue may be invaluable in helping you formulate your own position or argument[s]

physician, Dr. Bordendorfer, a VA physician, called a pharmacy on his behalf and, in his presence,stated that “‘[the appellant] should not have to pay for a single thing on this, the medicine or anything because it was a 100% negligent [sic] on the VA hospital side.'” R. at 26. At a minimum, the hearing officer should

See Bryant v. Shinseki, 23 Vet.App. 488, 496 (2010). Furthermore, the Board does not discuss why VA did not question its own physician on his alleged statements and obtain a statement from him as a matter of developing the evidence. The Board discussed this alleged incident but rejected it on the basis that “no such statement from Dr. [Bordendorfer] is in the record.” R. at 10. The Board went on to remark: “The Veteran’s account of what a health care provider purportedly said, filtered as it is through a lay person’s sensibilities, does not constitute competent evidence.” R. at 10-11. As the Court of Appeals for the Federal Circuit (Federal Circuit) has recently made clear, however, the appellant’s lay statements cannot be so readily dismissed. See Davidson v. Shinseki,

medical evidence is required when determinative issue is either medical etiology or a medical diagnosis); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence.”).

conversation with the pharmacy is credited, it would be admissible evidence of an admission by a party opponent. See Fed. R. Evid. 801(d)(2)(a). In this instance, one could hardly expect that such an admission would be duly recorded in VA medical records. See Fed. R. Evid. 803(7) (business records exception only applies to matters of a kind as to which a report is commonly made); see also Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 302 (2008) (stating that Federal Rules of Evidence are not binding on the Court but may provide “useful guidance.”). In addition to the physician, the appellant states that there was another man in the room at the time and pharmacist participating in the alleged telephone conversation. The issue begs further evidentiary development, which VA did not undertake.”

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