www.wvajustice.com

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.

IT’S THE LAW
by Richard Cohen, Esq.
©2009 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 2009

MEDICAL EXAMS

In the latest decision arising out of the “Blue Water Veterans” agent orange case, the Veterans Court was compelled by a decision by the Federal Circuit to reverse its earlier, landmark decision, that Mr. Haas and other Navy veterans were entitled to the presumption that they had been exposed to Agent Orange, even though they never served on the soil of Vietnam. One good thing came out of the decision in Haas v. Shinseki ___Vet. App.___, 04-0491, March 10, 2009. The ruling that Mr. Haas’ statements that his diabetes, peripheral neuropathy, and loss of eyesight began in 1980 requiring treatment is sufficient to meet the “low threshold” to “indicate” that his diabetes “may be associated” with service, thus requiring the VA, pursuant to 39 U.S.C. § 5103A, to provide the veteran a medical examination to determine whether it is likely his current disability was caused by service.

In Robinson v. Shinseki, ___Fed. 3d ___ , 2008-7095, decided February 25, 2009, the Federal Circuit settled the issue of liberal reading of filings by concluding that the pleading filed by a veteran must be liberally construed whether or not the veteran is represented by counsel.

The importance of liberal reading of pleading was later demonstrated in two decisions of the Veterans Court.

In Boone v. Shinseki ___Vet.App.____ 08-1257, decided March 10, 2009, after losing at the BVA, the veteran, without representation filed a Statement in Support of Claim form at the Regional Office. Although the form which was filed in January stated that he wanted to appeal the October BVA decision, contained a statement of a specific error committed by the Board, and stated that he could not afford an attorney to take this to the court, the RO did nothing until a counselor told the veteran in April that the form needed to be sent to court. The form was received by the Court in April. Rather, than considering the statement to be a notice of appeal and excusing the late filing, the Court rejected the appeal finding that paper filed could be liberally construed as a request for BVA reconsideration. Although the appeal to the Court was dismissed, the liberal construction by the Court keeps the appeal alive in the BVA by requiring the Board to decide the reconsideration, thus allowing the veteran a fresh 120 clock after denail of reconsideration to appeal to the BVA..,

Similarly, in Kouvaris v. Shinseki ___Vet. App.___, 08-0548, decided February 25, 2009, the CAVC decided that a Statement in Support of Claim form which the veteran filed with the BVA in October which had “Notice of Disagreement” written across the top and which stated that it was being filed with the Department of Veterans Affairs Board of Veterans’ Appeals, was liberally construed as a request for BVA reconsideration, even though it lacked the date of the BVA decision sought to be reconsidered. Once again the appeal is kept alive by a liberal reading of a terse document misfiled at the RO.

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IT’S THE LAW
by Richard Cohen, Esq.
©2008 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

January 2009

MEDICAL OPINIONS

In a groundbreaking case the Veterans Court put a stop to the VA’s practice of rejecting private exams for based on the failure of the private doctor to have reviewed the entire claims file.

In the appeal of Nieves-Rodriguez v. Peake dockret 06-0312, decided December 1, 2008, the Veterans Court was faced with a typical situation where the VA rejected the opinions of a treating physician and of an examining physician both of whom concluded that he developed depression as a result of his Guillain-Barre syndrome which was treated in service. The reason given for rejecting those opinions was that neither private psychiatrist performed an in depth claims file review.

In rejecting the VA’s reasoning the Court noted that the VA sought to set up a situation where the absence of the claims file would operate as an automatic penalty against an opinion offered by a private physician. The Court specifically decided that when the Board uses facts obtained from review of the claims file as a basis for crediting one expert opinion over another, it is incumbent upon the Board to point out those facts and explain why they were necessary or important in forming the appropriate medical judgments. Additionally, claims file review, as it pertains to obtaining an overview of the claimant’s medical history, is not a requirement for private medical opinions. The Court concluded that a private medical exam may not be discounted solely because the opining physician did not review the claims file. And, the Board may not prefer a VA medical opinion over a private medical opinion solely because the VA examiner reviewed the claims file

RULE OF PREJUDICIAL ERROR

Once again a veteran the VA has evaded its responsibility to provide notice to a veteran by hiding behind the prejudicial error rule.

In Gallegos v. Peake docket 05-2920, decided December 31, 2008, the Veterans Court agreed with the veteran that the VA failed to provide the notice required by 38 C.F.R. § 3.304(f) concerning the alternate forms of supporting evidence which might be submitted to support a claim for benefits based on PTSD resulting from in-service personal assault. Notwithstanding the VA’s failure to follow its own regulations the Court did not send the case back for new notices. Rather, the Court decided that the error did not prejudice the veteran because his submission of some alternate types of evidence showed and because his representative referred to the regulation at a hearing, that he knew what was required without receiving notice from the VA.

SYMPATHETIC READING OF PLEADINGS

There is some good news and some bad news in Acciola v. Peake docket 06-0542, decided December 5, 2008 regarding claims alleging clear and unmistakable error.

The good news is that veterans will not be penalized for being represented because the Court accepted the VA’s concession that all pleadings are to be read sympathetically regardless of the type of representation. However, the bad news is that the Court ruled that the VA need not fill in the gaps to infer a theory of error which is not clear in the pleadings. So if the pleading could encompass numerous theories the Court concluded the VA must dismiss the pleading without prejudice to reallege a specific theory.

Applying that law, the Court decided that the veteran had not asserted as error that the VA failed to decide his claim on a direct service connection basis. Rather, the Court found that the veteran’s argument was directed to presumptive service connection and entitlement to direct service connection was mentioned by “paraphrasing of the basis entitlement statute”. Accordingly the veteran’s “CUE claim” was dismissed without prejudice to reassert the claim.

< center>IT’S THE LAW
by Richard Cohen, Esq.
©2008 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

September 2008

The “Veterans Benefits Improvement Act of 2008″ which was signed by the President in October contains some important new laws which affect veterans.

You can find the bill at the following link:

http://www.govtrack.us/congress/billtext.xpd?bill=s110-3023

Among the more important changes are the change that allows veterans to challenge the VA’s schedule of ratings in Court. Before this law, if a veteran and his doctor believed that the rating schedule inadequately rated the veteran’s disability they were prohibited from bringing that challenge because the VA’s schedule was protected from attack. Now, for example, an otolaryngologist, an ear doctor, could provide an opinion that the schedule of ratings regarding hearing does not adequately rate hearing loss and that opinion could be used for a Court challenge to the schedule. An important restriction is that the challenge may not be brought in the Veterans Court, the United States Court of Appeals for Veterans Claims. Rather, it may only be brought in the United States Court of Appeals for the Federal Circuit.

Another important change allows a dependent to be able to be substituted for a veteran who dies while his claim is pending before the VA if the veteran dies on or after the enactment of this law. Because this law only applies to claims under 38 U.S. C. § 5121, that is, claims for accrued benefits, a claimant for DIC benefits under 38 U.S.C.§ 1318 claimants for DIC benefits should not rely upon their substitution to satisfy the requirement that the application for DIC benefits must be filed within one year of the veteran’s death.

A change which may contain a trap for veterans is the provision regarding expedited treatment for fully developed claims. Congress was hoping to move cases toward favorable decisions quicker by providing that such claims would be decided within 90 days after a claim is submitted as fully developed. The catch is that for a claim to be in this program the veteran must submit a statement that no further information or evidence is available or needs to be submitted for the claim to be decided. If the veteran signs the statement, thereby waiving all rights to assistance and notification by the VA, and if the claim is actually incomplete, requiring more evidence, the veteran is out of luck. Not only will the veteran lose, but, after the veteran hires a lawyer, the lawyer may be bound by the veteran’s representation that the claim was complete. Although, new and material evidence may always be submitted, the waiver may work against the veteran’s interests

Among the new VA regulations there are three which will have immediate impact on veterans, the PTSD regulation, the TBI regulation and the ALS regulation.

The interim PTSD regulation was reported in the Federal Register on October 29, 2008. You can see it in PDF format at:

http://frwebgate4.access.gpo.gov/cgi-bin/PDFgate.cgi?WAISdocID=335237167189+0+2+0&WAISaction=retrieve

It essentially requires the VA raters to follow the existing law by eliminating the requirement of verifying stressors for PTSD if the veteran was diagnosed with PTSD while in service.

The new regulations for rating Traumatic Brain Injury, which is effective for all claims filed on or after October 23, 2008 is too complex to summarize in this column. The full text can be found in PDF format using the link below:

http://frwebgate1.access.gpo.gov/cgi-bin/PDFgate.cgi?WAISdocID=335406260172+0+2+0&WAISaction=retrieve

One important provision is that a veteran who was rated under the old rule and Diagnostic Code 8045 can requested re rating under this regulation regardless of whether there was a worsening of symptoms.

The interim rule regarding ALS is effective September 23, 2008.

The full text can be found in PDF format using the link below:

http://frwebgate4.access.gpo.gov/cgi-bin/PDFgate.cgi?WAISdocID=336667176327+1+2+0&WAISaction=retrieve

This rule which applies to all claims received after the effective date or pending before the VA or the Court provides a presumption of service connection for all veterans who served on active duty and then were diagnosed with ALS. This is a big deal because there is no need to show any symptoms in service nor any exposure to anything. The only necessary evidence is active duty and then a diagnosis.

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A case from the United States Court of Federal Claims, decided in June concluded that the VA may not reduce a remarried widow’s SBP payments by the amount of DIC benefits she was receiving. The case, Sharp v. the United States, docket 07-547 C can be found on the Court’s web site : http://www.uscfc.uscourts.gov/opinions-decisions-0

An important proviso, the case does not deal with the situation of an un remarried widow.

Two recent decisions deal with equitable tolling where the veteran’s PTSD symptoms may have prevented him from filing an appeal either in the Regional Office (“RO”) or for an appeal to the Court on time.

In the case decided in the Federal Circuit, in August, the Court determined it was not necessary to decide the tolling issue because the appeal could be resolved by dealing with finality of Regional Office (RO) decisions.

In AG v. Peake 2007-7217, the veteran had claimed that the Veterans Court was wrong in denying him the benefit of equitable tolling. Specifically he argued that because of his PTSD he his failure to timely appeal the RO’s 1983 decision denying his claim for a nervous condition should have been excused.

Rather than decide the equitable tolling issue the Federal Circuit remanded the appeal back to the Veterans Court deciding that because the RO failed to inform the veteran about his right to appeal the disputed question of whether he had earlier filed an appeal , the 1983 denial never became final. As a result the 1983 proceedings were determined to be ongoing because they had not been concluded.

In the other case, this time involving a request for relief for failure a notice of appeal to the Veterans Court within 120 days from the BVA decision, the decision was against the veteran.

In Henderson v. Peake, No. 05-0090, the Veterans Court, in a split decision, decided that even though the veteran submitted a letter from his psychiatrist describing the effect of his disability, he was not entitled to the benefit of equitable tolling because filing a notice of appeal in the CAVC is a jurisdictional requirement which cannot be equitably tolled. One Judge on that three Judge panel disagreed concluding that equitable tolling is applicable.

Obviously, the Henderson case will now be appealed to the Federal Circuit

The National Organization of Veterans’ Advocates, Inc, NOVA, is conducting a seminar September 26-28th in San Francisco providing three days of training for those who do now or want to learn how to represent veterans.

To register go to this link

http://www.vetadvocates.com/index.html

The United States Court of Appeals for Veterans Claims, the Veterans Court, will be holding an oral argument at the seminar. Admission to the oral argument is free but advance registration by calling Rich at (304) 413-0838 is required because of the need to coordinate seating for the observers and seminar participants.

The rules have changed. Effective June 23, 2008 only lawyers, representatives and agents who are accredited are permitted to represent veterans and their families in getting VA benefits.

Accreditation requires the filing of an application with the VA’s General Counsel and taking training in VA law within the first year. Non lawyers must also pass a test.

Veterans might now have a claim which falls into one of three categories with three different rules concerning entitlement to hire a lawyer:

(1) Veterans who have “old law” claims, those in which the Notice of Disagreement (“NOD”) was filed before June 20, 2007, are prohibited from hiring a lawyer for a fee until they receive a decision from the Board of Veterans Appeals. Thus they may be forced to wait 4 years from date of filing the claim until they are permitted to hire a lawyer.

(2) Some veterans will have “new-old law” claims, those in which:
A) the NOD was filed on or after June 20, 2007 and
B)where they hired a lawyer for a fee who filed the power of attorney form and the retainer agreement before June 23, 2008.
These veterans can continue to have their claim handled by the lawyer and can pay the lawyer a fee as long as the lawyer has filed for accreditation whether or not the lawyer’s application for accreditation has been approved.

(3) Many veterans of the GWT/OIF/OEF will have “new law” claims, those in which

A) the NOD was not filed until June 23, 2008 or thereafter or

B) in which the NOD was filed before June 23, 2008 but after June 20, 2007 but where the lawyer did not submit the power of attorney form and the retainer agreement prior to June 23, 2008.

In these new law cases the lawyer must first receive approval of the application for accreditation before the lawyer is allowed to represent the veteran and the veteran is prohibited from paying a fee on a new law case until the accreditation has ben approved.

These regulations are very complicated. To train lawyers, agents and representatives, the National Organization of Veterans’ Advocates, Inc is providing a presentation on the accreditation regulations on September 27, 2008 in San Francisco.

Information is at www.vetadvocates.com and the seminar brochure is at http://www.vetadvocates.com/docs/SmnrBrochureFall08.04.pdf

Two veterans organizations, Veterans for Common Sense and Veterans for Truth filed a lawsuit in July 2007 against the VA because of “problems, deficiencies, delays and inadequacies” which veterans face in dealing with the VA. More specifically the organizations alleged that the manner in which the VA provides mental health care and the procedures for obtaining veterans disability benefits violate statutory and constitutional rights.

In June the Court issued a decision denying the relief requested by the organizations and stating that the remedy lies with Congress, the VA, the Veterans Court and the Federal Circuit.

This decision which will be appealed may prove to be helpful to veterans because of the findings of fact which highlight the problems which veterans face.

You can locate the decision at the following link:

http://www.veteransptsdclassaction.org/pdf/courtfiled/2008-06-25-Memorandum%20of%20Decision.pdf