www.wvajustice.com

IT’S THE LAW
by Richard Cohen, Esq.
©2010 Richard Cohen
Attorney at Law
235 High Street, Room 513
P.O. Box 771
Morgantown, WV 26507-0771
(304)-413-0838
vetlaw @wvajustice.com
http://www.wvajustice.com

MAY 2010

PTSD

In Arzio v. Shinseki no.2009-7107 decided April 19, 2010 by the Federal Circuit the Court explored whether there are alternative methods in the VA’s regulations for a veteran to obtain service-connected benefits for PTSD without proving the existence of credible evidence of an in-service stressor. While in service this non-combat veteran was diagnosed with a variety of psychological conditions in an attempt to understand his complaints of right foot and leg pain and chest pain. The diagnoses included psychogenic pain, psychophysical reaction, psychoneurosis and conversion reaction. Many years later the VA denied the veteran’s claim for benefits based on PTSD acknowledging that he was receiving treatment for psychiatric problems including PTSD but rejecting the claim for lack of proof of creditable in-service stressors. In supporting the denial the Federal Circuit concluded that 38 CFR § 3.304(f) makes clear that credible evidence of an in-service stressor is a mandatory element in any claim for disability compensation for PTSD. Further, the Court rejected the veteran’s argument that 38 CFR § 3.303 provides an alternative method of establishing service connection without proof of an in-service stressor.

EQUITABLE TOLLING

In yet another decision we can see that the Courts are still not in total agreement as to whether equitable tolling is available at the agency level when a veteran has been mislead by the VA. Both the Veterans Court and the Federal Circuit accepted the veteran’s assertion that VA personnel has erroneously told the veteran that he was not permitted to file a claim for benefits until his other-than-honorable discharge was corrected. Nevertheless, in Butler v. Shinseki no 2009-7066, decided April 23, 2010, the Federal Circuit relied on its earlier decision in Andrews v. Principi 351 F.3d 1134,1137-38 (Fed. Cir. 2003) agreed with the Veterans Court that the one year period of presumptive retroactivity which the veteran would have received had he filed his claim within one year of discharge was not subject to waiver or relaxation. One Judge dissented, asserting that this situation is different than Andrews because in this case there was misinformation or erroneous advice given to the veteran because that the court in Andrews had not stated that equitable tolling is never available.

NOTICE OF BVA APPEAL

A recent Veterans Court decision is a reminder of the distinction between an appeal to the Board of Veterans’ Appeals and an appeal to the Veterans Court. In Posey v. Shinseki no 08-0240, decided April 23, 2010, the Court noted that although the veteran stated that he had wanted to appeal a BVA decision, the form used was titled “Appeal to Board of Veterans’ Appeals” and stated that he wanted to have a video conference hearing. Because the letter did not indicate that the veteran wanted to have the Court review the Board’s decision, the document was determined to be a request to reconsider the Board’s decision and not an appeal to the Veterans Court.

IT’S THE LAW
by Richard Cohen, Esq.
©2010 Richard Cohen
Attorney at Law
235 High Street, Room 513
P.O. Box 771
Morgantown, WV 26507-0771
(304)-413-0838
vetlaw @wvajustice.com
http://www.wvajustice.com

MARCH 2010

IS EQUITABLE TOLLING DEAD?

In the January 2010 column I reported that equitable tolling is dead. Now I’m not so sure that the last words on this issue have been spoken.

First, the Federal Circuit’s decision in Henderson was recently appealed to the United States Supreme Court, docket 09-1036. While there is no guarantee that the Supreme Court will agree to hear the case, nor that the Supreme Court will allow equitable tolling if it does hear the case, there is a possibility of a favorable decision which would then make equitable tolling available.

Then, in the recent case of Rickett v. Shinseki, decided March 19th, one judge of the Veterans Court, in a solo dissent, would consider an appeal to the Veterans Court to have been timely filed, as an exception to the 120 day limitation period, where the appeal was misfiled with the VA General Counsel’s Office within 120 days. As we would expect, the GC sat on the filing and then sent it to the Regional Office, rather than to the Court. Although this is not the same as equitable tolling it shows an intent to flexibly apply the statutory rule requiring the appeal to be filed in 120 days.

Until the Supreme Court either declines to review Henderson or affirms it, many appeals which are misfiled or filed late will continue to be rejected. Also, the veterans who will have the greatest difficulty filing their appeals properly and timely are likely going to be the ones who are the ones with the greatest disabilities. But now there is a glimmer of hope.

THE VA’S DUTY TO ASSIST

In Jones v. Shinseki, decided by the Veterans Court on March 25, 2010, the issue was whether the VA complied with its duty to assist by not seeking additional medical examinations after the previous examiners said they could not decide whether there was a relationship between current conditions and military service, which is called medical nexus, “without resort to mere speculation”. The Court concluded it depends on what the examiner said in the rest of the report. If the examiner used that phrase as a short cut to avoid doing the necessary analysis and the report shows that the examiner has not fully considered all pertinent and available medical facts then a new examination is required. Also if the examiner says in the report that additional tests or information will make it possible to arrive at a conclusion then that information must be obtained as well as a new examination. But if the examiner has obviously considered all procurable and assembled data and tests and records and still cannot arrive at a conclusion then no additional examination is required. Applying that rule to the facts of the case the examiner’s opinion on service connection of erectile dysfunction was not found to be based on a well reasoned explanation where it merely recited test results and some facts without explaining why a conclusion could not be reached. With respect to tinnitus, the examiner raised an apparent contradiction in the appellant’s account but did not explain whether resolving that conflict might allow him to render a medical nexus opinion. Accordingly, another exam was required.

Jones, shows that if you receive a medical nexus opinion stating that rendering an opinion would be mere speculation you need to examine the rest of the opinion to determine whether there is a basis for that conclusion, whether the examiner said more information is required or whether the examiner is truthfully saying that with all the facts which are available it is still impossible to reach a conclusion. If the examiner was using the phrase speculation to get out of doing the necessary analysis you are entitled to another exam.

In one of the more important cases of the year, the Federal Circuit, ruled in a split decision, that equitable tolling is now unavailable to save a veteran’s appeal to the Veterans Court which is filed after 120 days from the date of the BVA decision.

In Henderson v. Shinseki __F. 3d __ (2009-7009, decided December 17, 2009) 6 members of the Court decided, relying on a 2007 decision of the Supreme Court of the United States of America, that because Mr. Henderson’s appeal to the Court was 15 days late his appeal may not be heard.

It is said that “bad facts make bad law”, but that was not the situation here. You could not imagine better facts in favor of a veteran than what Mr. Henderson presented. He had served in the military for two years and was discharged because of a diagnosis of service connected paranoid schizophrenia which was later found to be 100% disabling by the VA. After his request for special monthly compensation was denied by the VA, acting alone, without a representative, he appealed to the Board. Then following the Board’s approval of the denial, he appealed to the Veterans Court, but his appeal was received 15 days late. Responding to a request by the Veterans Court to prove that there was justification for the late filing he submitted a report from his treating psychiatrist stating, among other things, that he is incapable of understanding and meeting deadlines.

The majority ruled that equitable tolling is not available to a claimant who files a late court appeal, regardless of the reasons for the late filing. Disagreeing, three judges including the Chief Judge said that equitable tolling should be available.

Unless the Henderson case gets reversed by the Supreme Court of the United States or is replaced by legislation, equitable tolling is dead.

What this means to veterans and their families is you had better file your appeal to the Veterans Court within 120 days after a decision by the BVA or you will be, in the words of the dissenting judges in Henderson, “out of luck and out of Court”.

The latest decision in a line of cases dealing with the difficult issue of determining whether a claim is defined by a diagnosis, by symptoms or by a theory is the case of Tyrues v. Shinseki, ___Vet. App.___ appeal no. 04-0584, decided October 2, 2009.

The issue was whether the veteran lost his right to appeal the September 1998 denial of his claim for a lung disorder. He had filed twice after returning from active duty in the Persian Gulf and after being hospitalized for pneumonia. First in March 1995 on the theory of “direct service connection”, and then in December 1996 on the theory of “Persian Gulf Syndrome”

Although a 1997 exam diagnosed possible Persian Gulf Syndrome, in April 1998 the Regional Office (“RO”) denied service connection for a lung disorder both on a direct basis and as due to an undiagnosed illness. Following an appeal to Board of Veterans Appeals (“BVA”), the BVA, in September 1998, denied compensation for a lung condition based on direct service connection as not well grounded (a requirement which was removed by and remanded to the BVA the issue of compensation for an undiagnosed illness manifested by shortness of breath for further development.

The veteran did not appeal the BVA decision. Over a year after the second VA exam, in December 1998, which concluded that his lung condition is probably chronic bronchitis, the BVA issued a decision, in February 2000 denying the claim for shortness of breath resulting from an undiagnosed illness. The veteran appealed to the Court and the Veterans Court vacated the 2000 decision and remanded the claim for proper notices and for further development. A third VA examiner concluded that the veteran did not have any current respiratory symptoms, that he is allergic to certain paints and vapors, and that his symptoms are not related to exposure to fumes during the Gulf War. In April 2004 the BVA denied the claim for compensation for a lung disorder because the evidence did not support a finding that it resulted from an undiagnosed illness. The Veteran appealed to the Court seeking review of both the 2004 decision and the 1998 decision.
The CAVC declined to decide whether the veteran had two separate claims or a single claim based on two theories. Indeed, the various concurring and dissenting opinions issued in this appeal dhow that the judges could not agree on whether there were multiple claims or multiple theories. Nor could they agree on the definition of a claim.

Either way the Court decided the veteran is out of luck with respect to the 1998 denial because the 1998 BVA decision was a final decision which had not been appealed to the Court within 120 days. It did not matter to the Court’s analysis that the Board was still considering a portion of the claim for benefits based on presumptive service connection. In so ruling, the CAVC specifically overruled its 1991 decision in Harris “to the extent that it stands for the proposition that this Court has no jurisdiction over a Board decision that denied a claim if that claim is ‘inextricably intertwined’ with another claim that the Board remanded”.

Adding more confusion to this difficult to understand opinion, the Court also noted that had the veteran appealed in 1998, after the first denial, the Court may have decided not to hear the appeal because of the still pending issue or claim.

Nevertheless, it cautioned that a veteran who does not appeal because of the remand and development of a related claim or issue risks having the denied issue or claim being non appealable at a later date even though if appealed the Court may decide it is inextricably intertwined and refuse to accept the appeal.

What is a veteran to do? Appeal every meritorious claim which results in an unfavorable decision whether you think it is final or not! Let the Court sort out whether it is final or not. That way you do not lose your appellate rights

Secretary of Veterans Affairs Eric K. Shinseki announced on October 13, 2009, that the VA will add three new diseases to its list of 12 illnesses associated with exposure to Agent Orange. The three newly recognized diseases are:. Ischemic heart disease (including coronary artery disease);
Parkinson’s disease; and. B cell leukemias (such as hairy cell leukemia).

Although the regulations have not yet been issued any veteran with any of those diseases who was exposed to Agent Orange, in service, or who served in Vietnam should immediately file a claim. Similarly, surviving dependents of veterans who died as a result of any of those conditions may be entitled to DIC benefits and should immediately file.

Retroactive benefits will be determined based on the date the claim was filed.

Recently the Federal Circuit decided the appeal of a veteran who was diagnosed with both service connected bipolar affective disorder, i.e. manic depressive disorder and service connected posttraumatic stress disorder but who challenged the VA’s decision to provide only one rating for both mental disorders.

The VA’s reasoning which was affirmed by the Federal Circuit in Amberman v. Shinseki __F.3d.___, 2008-7111 (June 29, 2009) was that because the “manifestations” of the veteran’s manic depressive disorder were not found to be distinguishable from the manifestations of her PTSD, separate ratings for those separate mental disorders was prohibited. The Federal Circuit relied upon their interpretation of 38 C.F.R. § 4.14, which precludes “pyramiding” i.e, rating the same symptoms more than once.

In Young v. Shinseki, ___Vet. App. ____, decided May 11, 2009, the Veterans Court decided that the VA committed an error in failing to consider a report for a VA Vocational Rehabilitation Specialist as part of the original claim where the report was submitted to the VA during the 1 year appeal period following the granting of a 30% rating for PTSD. The Court determined that the submission of the report, which suggested that the veteran had an impairment in social and occupational functioning which would entitle him to a higher rating, fell under 38 C.F.R. § 3.156(b) requiring the VA to consider new and material evidence submitted during the appeal period as having been submitted in connection with the pending claim. Therefore, although the veteran had not submitted a notice of disagreement in time to keep his appeal pending, the submission of the report kept the case pending and open.

Also, in the Young case the Veterans Court decided that the failure of the VA to furnish the veteran a copy of a recently prepared medical report before the BVA considered it and relied upon it violated “the fair process principle” upon which the VA’s nonadversarial claim system is predicated. Specifically, the veteran must be given notice and an opportunity to be heard at every step in the process.

In a recent decision in Knowles v. Shinseki, ___F.3d.___, 2008-7119, decided June 26, 2009, the Federal Circuit reiterated its former holdings that the only exceptions to the rule of finality of decisions are , clear and unmistakable error (CUE), a claim to reopen, reconsideration by the BVA and correction of obvious errors in the record by the BVA, but there is no separate “finality claim”

In Brokowski v. Shinseki, __Vet. App.___, decided June 8, 2009, the Veterans Court decided that a claim for benefits for service connected depression and anxiety and “all disabilities of record” was not sufficient to raise a claim for benefits for peripheral neuropathy, even though medical records at the time of filing the claim contained diagnoses of neurological disease in the lower extremity. Specifically, the Court determined that, as to peripheral neuropathy, the veteran failed to meet the requirement of identifying the benefit sought because the veteran did not describe the nature of the disability for which he is seeking benefits. That requirement could be satisfied “by referring to a body part or system that is disabled or by describing symptoms of the disability

The Court went on the say that the phrase “all disabilities of record” would be sufficient if “selected records are submitted to support the claim and they clearly discuss disabilities or specific symptoms other than those listed on the application”

In the recent case of Lee v. Shinseki __F.3d.___, 2008-7162, decided June 15, 2009, the Federal Circuit explained the application of its decision in Deshotel v. Nicholson, 457 F.3d 1258(Fed.Cir. 2006) that a claim may be “implicitly denied” or “deemed denied”.

If Mr. Lee’s claim for benefits based on a heart disease diagnosed as endocarditis residuals was not decided in the 1950s, his claim for benefits which was ultimately granted with an effective date of January 1989 would have an effective date over 30 years earlier resulting in substantially more past due benefits.

While in service a heart murmur was diagnosed and he was hospitalized for two weeks because of a respiratory infection and was given a diagnosis of inactive rheumatic valvulitis with deformity in the aortic valve. He was discharged from the Air Force because of preexisting heart disease.

His original claim in April 1951 was for benefits for “rheumatic heart” and was supported by a medical report containing a diagnosis of “rheumatic valvular heart disease, aortic insufficiency, and mitral insufficiency”. The RO denied the claim in June 1951 on the basis that the veteran had not active symptoms of “rheumatic valvultis or associated disease” during service. Medical records from August 1951 listed diagnoses of “rheumatic heart disease, active, aortic insufficiency, cardiac enlargement, myocardial disease, myocardial insufficiency and subacute bacterial endocarditis due to streptococcus mitis. secondary to rheumatic heart disease. Following that evidence and an October 1951 affidavit from the veteran referring to the rheumatic heart disease and the endocarditis the RO again denied the claim.

Following an appeal to the BVA in which the veteran claimed entitlement to benefits for a service connected “heart condition” the Board denied the claim concluding that the “medical records do not disclose active rheumatic fever or other active cardiac pathology during service” and the “rheumatic valvulitis” was incurred prior to and was not aggravated during military service.

In 1989 after a request to reopen the BVA determined that the claim was for “entitlement to service connection for endocarditis residuals” and in 1997 awarded benefits, effective 1989, for “heart disease claimed as residuals of endocarditis, including heart valve damage”. The Board’s reasoning was that the veteran’s preexisting congenital heart disease with a bicuspid aortic valve predisposed him to bacterial endocarditis which was incurred in service and which resulted in additional hear damage.

Following his appeal on the effective date, the Veterans Court determined that the 1951 decision regarding the claim for rheumatic heart disease had implicitly denied his informal claim for benefits based on service connected endocarditis. The Federal Circuit agreed.

First the Federal Circuit noted that because the 1951 decision specifically stated that the Regional Office has considered the veteran’s affidavit and that affidavit referred to both rheumatic heart disease and endocarditis when the veteran received notice that the formal claim for rheumatic heart disease was denied the veteran was put on notice that the claim for endocarditis also was denied.

The second factor that the Federal Circuit noted was the “relatedness of the claims” and the court observed that bacterial endocarditis id frequently associated with rheumatic heart disease.

The third factor noted was the timing of the claims with the court noting that it is not necessary for claims deemed denied to have been filed in a single application to apply the rule of deemed denial. Here the claims which were filed roughly six months apart were found to have been sufficiently closely associated.

The Federal Circuit identified the key question in applying the deemed denial rule to be “whether it would be clear to a reasonable person” that VA action expressly referring to one claim is intended to dispose of others as well.

In a historic decision, in the Sanders and Simmons cases which were decided together as, Shinseki v. Sanders, 556 U.S. ___, no.07-1209, April 21, 2009, the Supreme Court of the United States eliminated the special evidentiary benefit which the Unites States Court of Appeals for the Federal Circuit had granted to veterans in the area of prejudicial error.

Prejudicial error is very important to veterans who appeal to a court because even if the appellate court determines that the VA’s actions were wrong and that the VA committed error, if the court determines that the error the VA committed was not prejudicial, the unfavorable decision stands.

In Mr. Sanders case the VA violated the law contained in the Veterans Claims Assistance Act (“VCAA”) 38 U.S.C.§ 5103 by not telling him what evidence which was lacking the VA would try to get and what evidence he must get. The Veterans Court determined that the errors were harmless and it therefore approved the BVA’s denial of benefits.. The Federal Circuit disagreed, concluding that all notice errors should be presumed to be prejudicial, requiring reversal unless the VA can show that the error did not affect the essential fairness of the proceedings.

In Ms. Simmons case the VA failed to tell her what further information was needed to substantiate her claim. The Veterans Court and the Federal Circuit both found the VA’s error to be prejudicial, but their reasoning differed. The Veterans Court concluded that the error of failing to tell a veteran what evidence is required has “the natural effect’ of being prejudicial. But the Federal Circuit went further and applied its reasoning in Sanders and concluding that all notice errors should be presumed prejudicial.

The Supreme Court disagreed with the Federal Circuit in both cases, saying that the approach to prejudicial error in veterans’ cases should be the same as other civil cases where the person appealing must prove that the error is prejudicial. The Court did leave a little wiggle room refusing to overrule the Veterans Courts’ determination that some kinds of notice errors have the natural effect of causing error without the benefit of a presumption.
As a result veterans may expect to find that if the VA fails to provide any notice telling them what is lacking to win their claim that the Court will find that error to have the natural effect of being prejudicial unless the VA can prove otherwise. Where the error is that the VA failed to tell them who is to find and submit what evidence, that error will not be presumed to be prejudicial and the veteran will be required to prove it was prejudicial by showing what the veteran would have done if the required notice had been given. See Pope v. Shinseki, ___F.3d ___, no.2006-7322, decided May 1, 2009.

In addition to the duty to notify, the VA also has a duty to assist, which requires the VA to assist a veteran in obtaining evidence to support a claim. 38 U.S.C. § 5103A. In a recent case, the Federal Circuit agreed with the veterans Court that the duty to assist does not require the VA to provide the veteran’s doctor with evidence which is already in the veteran’s possession, Walch v. Shinseki, __F.3d __, no. 2008-7052,decided April 30, 2009.

In the case of Polovick v. Shinseki, ___Vet. App.___, no. 06-3024, decided April 22, 2009, the Veterans Court reversed the decision by the Board of Veterans Appeals which concluded that the evidence did not support the conclusion that the veteran’s brain tumor which caused his death was not related to his exposure the Agent Orange. The VA relied upon an opinion by the Armed Forces Institute of Pathology which was based on a 2002 study by the Institute of Medicine which placed brain tumors in the category of “limited/Suggestive Evidence of No Association” with Agent Orange exposure. Based on that study the VA rejected three medical opinions which were in the veteran’s favor. In rejecting the VA’s analysis and sending the claim back for a do over the court set forth guidelines for evaluating evidence. First the Court said the opinion of a doctor which found a statistical correlation between Agent Orange exposure and a disease not found on the Secretary’s list of diseases presumptively caused by Agent Orange would not be found to be credible. However, a medical opinion cannot be rejected simply because the opinion is based in part on statistical analysis. A doctor’s opinion cannot be rejected as contrary to the statistics where it is based on the statistics and the added factors of the interval of time between the Agent Orange exposure and the onset of the tumor; the propensity of Agent Orange to cause genetic defects which lead to tumors; and the veterans lack exposure to of other risk factors for a brain tumor.