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IT’S THE LAW

by Richard Cohen, Esq.

©2006 Richard Cohen

Cohen, Abate & Cohen, L.C.

Attorneys at Law

P.O. Box 846

Morgantown, WV 26507-0846

(304)-292-1911

wvajustice@netscape.net

wvajustice.com

May 2006

There were many important veterans law cases decided recently, concerning various areas of the law.

Concerning GULF WAR SYNDROME, two cases provide instruction on how to win these type claims.

In the first case, the veteran had two different diagnoses. A VA nurse practitioner, concluded he had chronic generalized muscle strain, due to working as an auto mechanic, but a VA doctor concluded that he had generalized aching, with no positive findings and concluded it was joint pain of unknown origin.

Based on this evidence, the Regional Office denied the veteran’s claim based upon the conclusion that the pain he had throughout his body were not the result of “an undiagnosed illness ” which is required for a diagnosis of “Gulf War Syndrome”, but instead was the result of chronic, generalized muscle strain , which was unrelated to military service. The BVA rejected the claim on a different basis, concluding that even if the veteran’s disability was the result of an undiagnosed illness, the symptoms were not shown to be ratable at a 10% level based on the VA rating schedule. The Board’s conclusion was founded on its assumption that the best analogy to the veterans condition is the code pertaining to arthritis, and that under the arthritis code there must be x-ray evidence for a 10% rating.

The Veterans’ Court, in Stankevich v. Nicholson, no. 03-2156, decided 1/3/06, disagreed, concluding that the Board had not adequately explain its selection of the arthritis code, especially in view of the fact that the code for fibromyalgia, which involves widespread pain appears to be equally applicable to the veteran’s condition. In addition, and more significant, was the Court’s conclusion that it appears inappropriate to use arthritis as an analogous condition because arthritis requires x-ray evidence for a 10% rating, yet the very essence of an undiagnosed illness is that there is no diagnosis. Finally, and most significant, the Court modified the Board’s findings, and specifically concluded that the veteran’s muscle and joint pains are the result of an

undiagnosed illness, thus making him eligible for service connection provided that the evidence shows that his condition was 10% disabling.

Similarly, in the second case there were a diversity of diagnoses. Although a VA environmental specialist diagnosed “Persian Gulf Syndrome “, a VA staff psychologist diagnosed “undifferentiated somataform disorder.”, that is unexplained physical complaints, a VA nurse practitioner diagnosed chronic disabilities such as fatigue and muscle and joint pains which constituted an undiagnosed illness, and a VA infectious diseases physician found nonspecific symptoms similar to other Gulf War veterans but concluded that the veteran’s previously diagnosed hepatitis could account for some of the symptoms.

The Board denied the claim, concluding that the veteran’s illnesses were related to his psychological disorder of unexplained physical complaints or to hepatitis.

The Veterans’ Court in Wells v. Nicholson, no 03-1014, decided on 3/7/06, concluded that the Board was wrong in deciding that the evidence proved that the veteran was not suffering from an undiagnosed illness. Specifically, the Court criticized the Board’s use of the psychological disorder diagnosis to defeat the claim because the same symptoms which could establish a psychological diagnosis can establish that a veteran is suffering from an undiagnosed illness. Furthermore, there was insufficient evidence to show that all his symptoms were related to the psychological disorder, so the Court criticized the Board’s interpretation of the medical evidence, finding that the Board misread the doctor’s statement in concluding that hepatitis C accounted for all the symptoms.

Most important was the Court’s guidance that it is not necessary that the record contain a medical opinion that a condition is undiagnosed and is related to service in the Persian Gulf. Rather, what is required is the inability to assign a diagnosis to the chronic condition. In addition, a veteran is not required to provide a “medical nexus” opinion to substantiate his Gulf War Syndrome claim specifically linking his disability to his service in the Gulf War. Rather, when a Gulf War veteran’s symptoms are not attributed to a specific disease, the symptoms are presumed to be service connected.

Applying the law, the Court modified the Board’s findings to conclude that the veteran suffers from an undiagnosed illness.

The conclusions to be reached from Stankevich and Wells are that Gulf War veterans who have generalized muscular or joint pain symptoms should advocate strongly against a doctor assigning a diagnosis which does not account for all their symptoms, remembering that the VA’s technique in defeating these claims is to mis diagnose and to attribute the symptoms to something like arthritis, undifferentiated somataform disorder or hepatitis. Furthermore, because there is a presumption which applies to these cases, it is not necessary to obtain a medical opinion linking the undiagnosed illness to military service, because the appearance of an undiagnosed illness in a Gulf War vet is presumed to be the result of Gulf War Syndrome.

Concerning RATINGS there were likewise , two important cases decided.

The first case related to claims for special monthly compensation , which involves additional benefits over and above those generally provided in the schedule of ratings. In this case , the veteran claimed entitlement to special monthly compensation (SMC) based upon the need for regular aid and attendance or upon housebound status. The Regional Office denied the claim, and the Board agreed finding that schizophrenia, which is the veteran’s sole service connected disability does not alone, rendered him housebound nor in need of regular aid and attendance of another person. Also, the Board found that he is not housebound because he is able to leave his house to attend medical treatments and VA examinations.

The Veteran’s Court, in Howell v. Nicholson, 04-0624, decided on March 23, 2004 disagreed, initially rejecting the unfavorable medical evidence, because there was no indication that the doctors provided a medical assessment of the veterans needs, nor of the specific basis for those needs. The Court explained that although the veteran and his wife may state their activities and their needs, the doctor must provide a medical assessment. Similarly, the Court concluded that a doctor’s opinion which was nothing more than a handwritten note on a prescription pad, and which states the veteran is unable to take care himself because of mental and physical disability is not entitled to weight because it is un enhanced by any medical comment or analysis.

In addition, the Court concluded that leaving one’s house for medical purposes cannot, by itself, serve as a basis for finding that a veteran is not substantially confined for the purpose of housebound benefits.

The most important part of the Court’s decision is the conclusion that the Board must discuss and assess the separate effects of the veteran’s service connected and non service connected disabilities in deciding whether to grant aid and assistance or homebound benefits, and must attempt to discern the effects of each disability. Where such distinction is not possible, the board must attribute such effects to the service connected disability.

This case explains that unless doctor’s opinions provide analysis for their conclusions they will be rejected. In addition, this case reemphasizes the proposition that if the effects of a nonservice connected disability cannot be separated from the effects of a service connected disability . It must be assumed that all the effects are the result of the service connected disability.

The second important rating case involves a situation where a veteran who was wounded in combat was granted a 10% rating due to a scar on his back , but was denied an increased rating for the shell fragment wound of his back with retained metallic fragments. He was granted a hyphenated rating of 7804-5320, for scars and for muscle injury at the 10% level.

The Veteran’s Court in Tropf v.Nicholson ,no. 03-1923, decided on April 4, 2006, concluded that the hyphenated rating was improper because it was being used for injury and not for disease, as was intended in the regulation, and because it was used in violation of the rule that requires two different disabling conditions, such as the veteran’s scar and a muscle injury, to be rated separately.

Additionally, the Court concluded in affirming a 0%, slight disability rating, with respect to the veteran’s upper arm shell fragment wound, and relying on its earlier decision in Robertson v. Brown , 5 Vet. App.70,74 (1993) that in deciding whether a muscle injury should be classified as slight, moderate, moderately severe or severe, under §4.56, no specific fact set forth in the regulation establishes entitlement to any particular rating because the regulation created a “totality ” of “the ” circumstances test” with no single factor controlling.

What we learn from this case is that the VA must separately rates scars and muscle injuries and cannot lump them together under a hyphenated rating and that in order to have a muscle injury rated as moderate, that is compensable at the 10% level, findings or an opinion must show why the moderate level of disability is appropriate, rather than having the report rely on a single factor to support the moderate rating level.

Finally, some very important cases were decided with respect to VCAA NOTICES.

These cases dealt with interpretation of the Veterans Claims Assistance Act of 2000 and specifically with §5103(a), that is, what is the VA required to tell a veteran concerning how to prove his or her claim and when must the notice be given.

In the first group of these recent case, are the consolidated cases of Dingess and Hartman v.Nicholson, 01-1917, 02-1506, decided May 3, 2006.

In the Dingess case the veteran appealed the denial of a PTSD rating greater than 30% and a rating of total disability based on individual employability (TDIU). While in the Hartman case the veteran appealed the denial of an earlier effective date for his award of service connection for PTSD. Both cases involve the application of the notice provisions of the VCAA.

In Dingess, the Court determined that the VA committed error in not explaining how to substantiate his TDIU claim but did not find error with respect to notices regarding an increased rating for PTSD because after his PTSD claim was substantiated, the notice of disagreement which he later filed with respect to the rating assigned did not trigger additional VCAA notice requirements.

In Hartman the Court did not find any prejudicial error , with respect to the notices because his PTSD claim had been substantiated before November 9, 2000 and therefore VCAA notice was not required and the subsequent notices informed him what was necessary to receive an earlier effective date.

The Court’s decision included the following conclusions regarding notices:

as to any claim , which is “substantiated” at the time of the enactment of the VCAA, November 9, 2000, the VA no longer has any further duty to notify a veteran on how to substantiate the claim;

where VCAA notice is required, notice is required as to all five elements of the claim (the veteran status, existence of a disability, a connection between the veteran service and the disability, degree of disability and effective date of the disability);

as to the service ” connection element of a claim VCAA notice must be provided before an initial unfavorable decision , and this applies equally to the initial ” disability ” rating and to the effective ” date elements of a service connection claim;

in addition to notice received under section 5103 (a), a claimant receives notice of applicable statutes regulations and diagnostic codes during VA required assistance throughout the adjudication process , and under section 5103A; and

as to a first ” element notice error, ( the failure to notify the claimant of any information or evidence that is necessary to substantiate the claim) which has the natural effect of producing prejudice, the Secretary has the burden of demonstrating that there was clearly no prejudice , because of the failure to give notice.

Then in Kent v. Nicholson, no. 04-181, decided March 31, 2006, an appeal from a BVA decision concluding that the veteran had not submitted new and material evidence sufficient to reopen his claims for a stomach disorder and psoriasis, the Court held that the four notice requirements are applicable to claims to reopen and it is necessary, in most cases, for the VA to inform claimant’s seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented to reopen.

Moreover, the failure to provide notice of what constitutes material evidence would generally be the type of error that has the natural effect of producing prejudice because it would effectively deprive the veteran of an opportunity to participate in the adjudication process.

Specifically, the Court decided that the veteran should have been informed what would have constituted new evidence to reopen the psoriasis claim and that he needed to submit evidence which was neither “cumulative nor redundant”.

The last case was Mayfield v. Nicholson, 05-7157, decided April 5, 2006 by the U.S. Court of Appeals for the Federal Circuit.

The Federal Circuit concluded that it was improper for the Board to conclude that the VA’s notification duty was satisfied by the notice of decision and the two statements of the case that it sent to her between 1999 and 2002 because the duty of affirmative notification is not satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant’s presentation.

However, the Federal Circuit also said that the timing of the VCAA notices was cured by the Board’s remand following the enactment of the VCAA for a new notification followed by a readjudication of the claim.

The Federal Circuit also noted that it was improper for the Veteran’s Court to justify the notice given to the claimant by relying on a letter not referred to in the Board’s decision.

To keep current on major changes in Veterans’ law check this page after the 10th of the following months for the latest edition of “It’s the law” a newsletter summarizing changes: January, March, May, July, September, and November.