www.wvajustice.com

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

July 2006

Urgent information regarding PROSTATE BIOPSIES

If you were one of the 25,000-27,000 veterans around the country who had a prostate biopsy during the years 1995 through 2001 using the BK Biopsy Transducer, you need to be tested immediately. That device was reported to have not be properly sterilized between uses and placed veterans at risk for Hepatitis B &C and for HIV.

Those veterans who have any of those diseases may qualify for VA benefits for their illness under § 1151 and may also be able to sue the government if they act quickly, and file a Federal Tort claim lawsuit within two years of the time they become aware of the VA’s negligence

SOME IMPORTANT CASES

There were important cases decided recently which deal with the value of lay, that is, non-professional, evidence and a case which eliminates the possibility of leniency in filing a late Court appeal,

One helpful case deals with the use of lay or non-professional evidence to prove when the veteran first incurred an injury or illness. Because his service medical records did not mention any psychiatric symptoms or treatments, the veteran submitted affidavits from relatives, acquaintances and his former sergeant which confirmed his statements and described his symptoms while in service or soon thereafter. Relying on those lay statements a doctor concluded that symptoms of paranoid schizophrenia first appeared in service and it was of a compensable degree during the first year after his discharge from service.

The VA denied the claim noting, among other things, that “objective medical evidence” did not support the presence of psychiatric problems in service or within the first year after service. Following an appeal, the Veterans Court agreed that the credible evidence did not show the presence of psychiatric problems in service nor within the first year after service.

The Federal Circuit disagreed, deciding in Buchanan v. Nicholson, 05-7174, June 14, 2006,that “lay evidence is one type of evidence that must be considered, if submitted, when a veteran’s claim seeks disability benefits”. Further “nothing in the regulatory or statutory provisions… require both medical and competent lay evidence; rather, they make clear that competent lay evidence can be sufficient in and of itself”. Therefore, the “Board improperly determined that the lay statements lacked credibility merely because they were not corroborated by contemporaneous medical records”.

The Federal Circuit cautioned that although it would be proper for the Board to decide that the lay statements have “slight probative value” because of the significant time delay between the observations and the date when the statements were written, the Board may not require confirming medical evidence in order for the lay statements to be found to be credible.

What the Buchanan case teaches us is that, if there are no service medical records available to prove that a veteran had a disease or injury in service, lay statements can substitute for medical evidence. Also, the VA is not allowed to reject that evidence out of hand and must weigh its probative value. But, the best and most reliable lay evidence will be in letters which were written close in time to the event, such as letters to and from family members and friends, or in the form of diary entries.

The second case showing the value of lay evidence involved an appeal in which the VA refused to provide a medical examination in connection with a claim for compensation for a low back condition.

In that case, McClendon v Nicholson,04 0185, June 5,2006, the Veterans Court noted that the VA must provide a medical exam if there is 1) evidence of a disability or recurrent symptoms of a disability, and 2) evidence establishing that an event, injury or disease occurred in-service, and 3) an indication that the disability or symptoms may be associated with military service, and 4) insufficient medical evidence to make a decision on the claim.

In listing those things which are sufficient to “indicate” that a current disability “maybe associated” with military service, the Court first observed that vague or equivocal medical evidence (which would not be sufficient to prove that there was a link between a current disability and an in-service event) might be sufficient to indicate an association. Likewise, credible evidence of continuation of symptoms such as pain or other symptoms capable of lay observation might be sufficient.

The Court implied that examples of equivocal medical evidence which might be sufficient to indicate an association between the in-service injury and the current disability could include doctor’s statements with wording such as “it is possible”, or “it is within the realm of medical possibility”.

As examples of sufficient lay evidence, the Court noted that credible testimony of ringing in the ears ever since service during which the veteran was exposed noise from things such as a rifle range, bombing and artillery fire would be sufficient to indicate that a hearing disability may be associated with service. In addition, a veteran is fully competent to testify concerning the pain he may have suffered.

This case may prove to be very important because it suggests, for example, that a combat veteran who has nightmares and flashbacks of combat would be entitled to a C&P exam to determine if the veteran has PTSD as a result of combat, if there is no PTSD exam in the record and if the veteran filed a claim for service connection for PTSD claiming combat stressors and stating that the symptoms began after service.

In contrast to the two cases mentioned above which will help veterans, the Rios and Collins v. Nicholson cases, 04-0354 and 04-1840, June 27, 2006, close the door to Court appeals which are not received within the appeal period.

Although the Court did not receive either of these veteran’s notices of appeal until after the 120 day deadline passed, both these veterans claimed that they had mailed their notice of appeal on time, and both had evidence to prove that timely mailing. One of them submitted a diary from the service organization which mailed the notice of appeal showing timely mailing, and the other produced a copy of a sales receipt from the post office showing timely mailing. Unfortunately, neither veteran’s notice of appeal was received by the Veterans Court with a legible US Post Office post mark.

The court rejected the evidence of timely delivery to the post office, deciding that the notice of appeal must either have a legible postmark showing that it was postmarked within 120 day period or in must be received by the court within that 120 days.

The lesson is if you are close to the end of the time period to file your notice of appeal to the Veterans Court either hand deliver it to the Court, bring it to the US Post Office, ask to see the postmark and get a photocopy of it, or fax it to the Court and call to insure that it has been received. You cannot assume it will get there in time by using another delivery service, nor can you assume that the post mark is legible.

Because rights may be lost you must be certain that your notice of appeal is considered timely. You cannot expect any sympathy from the Court.