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LATEST VET NEWSLETTER

JANUARY 2006

© 2006 Richard Cohen

IT’S THE LAW

by Richard Cohen, Esq.

Cohen, Abate & Cohen, L.C.

Attorneys at Law

P.O. Box 846

Morgantown, WV 26507-0846

(304)-292-1911

wvajustice@netscape.net

wvajustice.com

Two very important cases were recently decided by the Court of Appeals for Veterans Claims (”the Veterans’ Court”).

One case involves the question of what relief a veteran can receive in the Veterans’ Court and the other case involves the question of how a veteran can appeal the failure the VA to consider and rule on an “implied” or “inferred” claim.

The VA Regional Office initially denied the claim of Mr. Stankevich, a Persian Gulf War veteran, for service connection for chronic muscle and joint pains resulting from an undiagnosed illness based upon the VA’s conclusion that his pains resulted from diagnosed chronic, generalized muscle strain, which was not caused by nor aggravated by service. After he appealed, the Board of Veterans’ Appeals ( “the Board”) decided that it was not possible to decide whether his pains were the result of an undiagnosed illness or not, but that the claim must be denied because even if the pains were the result of an undiagnosed illness, those symptoms could not be shown to be ratable at 10% , which is the required threshold for Gulf War syndrome. In deciding that Mr. Stankevich’s impairment was not ratable at 10%, the Board used the ratings for arthritis and concluded without x-ray evidence there could not be a 10% rating.

The Veterans’ Court concluded, in Stankevich v. Nicholson, decided on January 3, 2006, that the Board had failed to adequately explain its choice of the diagnostic code pertaining to arthritis , especially in view of the Court’s view that fibromyalgia which involves widespread pain and tender points , appears to be at least as equally analogous as arthritis to the veteran’s condition and it also does not require x-ray evidence. Then, the Veterans’ Court went on to do a very unusual thing. Rather than sending the case back for a do over on whether the veteran has an undiagnosed illness and whether that illness was 10% disabling, the Court “modified” the Board’s decision to specifically find that the veteran has an undiagnosed illness.

Because of the Stankevich decision, veterans can now ask the Veterans’ Court to modify a VA decision under 38 USC 7252, instead of merely asking the Court to “remand” and send the case back for a do over where there is not enough evidence for the Court to reverse the VA’s decision and grant benefits outright.

The other important case involves an “implied claim” for special monthly compensation (SMC) which is a benefit for severely disabled veterans, in addition to the usual rating. It applies in cases such as where the veteran has lost the use of limbs or other organs or where the veteran requires the regular aid and attendance of a of another person or is housebound.

Where a medical condition is mentioned in a veteran’s records or in correspondence from the veteran and not in a formal application it has been difficult to convince the Court that the VA has overlooked an “informal” or “implied” claim. It was previously ruled that when the VA failed to decide or ignored a claim a veteran had to argue that at the BVA as a CUE claim relying on Andrews v. Nicholson, 421 F.3d 1278,1284 (Fed. Cir. 2001). The problem with this approach is that it requires the veteran to specifically plead and prove that there was clear and unmistakable error, which is difficult to prove, especially since no new information in support of the existence of the claim can be considered.

On December 29, 2005, in Beverly v. Nicholson. the Veterans’ Court decided that a veteran need not wait “until the Board decision is final and then face the high burden of proving CUE”. Rather, the Court decided that the failure to adjudicate a claim can be raised on direct appeal to the BVA arguing that a claim was reasonable raised by the evidence. So, because Mr. Beverly’s doctor submitted a report arguing that the appeal should be expedited at the BVA and containing information that he required the daily personal healthcare services of a skilled provider the Court sent the case back to the BVA to determine whether a claim was raised for “special monthly compensation for aid and attendance”. Further, the Court said that if the BVA decides that such a claim was not asserted, that decision can be appealed to the Court.

We can only wonder whether Mr. Beverly will ask the Court to reconsider its remand decision, using the Stankevich case to urge the Court to modify his case, and rule that there was indeed an implied claim, in view of the undisputed evidence.

In all, this is a good start in the new year for veterans.

ALERT FOR VETERANS WHO HAVE BEEN INJURED AT A VA MEDICAL CENTER

If you were injured while waiting for treatment at a VA Hospital before October 1, 1997, and if you file a claim, before October 1, 1997, under 38 USC 1151, for VA benefits to compensate you for your injury you should read what follows very carefully.

Most claims by veterans who were hurt, while waiting for treatment and who filed a claim before October 1, 1997, had their claim denied by the VA because the VA determined that the injury was unrelated to the treatment.

For some veterans the law has now changed in their favor because of the case of Jackson v. Nicholson, decided December 30, 2005 by the US Court of Appeals for the Federal Circuit..

Jackson who was verbally and physically assaulted by a patient while waiting for therapy had her claim rejected based on the determination by the VA and the Veterans Court that the assault was an “intervening cause” and was not the result of VA actions relying on Sweitzer v. Brown, 5 Vet App 503,506 (1996).

Sweitzer had been injured by a patient in a wheel chair while reading an ad on a bulletin board after checking in at a VA Hospital. In his case the VA’s denial of the claim was upheld by the Court because the injury did not result from having “submitted to an exam”.

In deciding that the VA was wrong in rejecting Jackson’s claim, the Federal Circuit said that the word “hospitalization” which is in the statute refers to one who is in the hospital and does not require that the injuries be caused by the actions of the VA.

What this means for veterans, is that a veteran who filed a claim ,before October 1, 1997, for benefits resulting from an injury in the hospital, and who was denied, can reopen their claim because of clear and unmistakable error committed by the VA in denying the claim.