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SECRET DEEMED DENIALS

In late May, the Veterans Court interpreted the law to resolve the apparent inconsistencies among various cases dealing with pending claims and with “deemed denials”.

In the Ingram case, a veteran filed a claim in 1985 because of the removal of his right lung while on active duty and filed out the sections of the application showing a claim for total disability and asking for a non service connected pension. His claim was initially denied because the VA did not consider him unemployable, but after filing a second application in 1992 stating that he was claiming that the VA’s negligence in lung surgery resulted in an esophageal leak, (a section 1151 claim) and after an appeal to the BVA following the VA’s denial, he was granted a 60% disability rating, effective 1996. After another appeal, the VA moved the effective date of his rating back to 1992 but refused to assign a still earlier effective date, relying on the Deshotel and Andrews cases, and asserting that there was no earlier claim for those benefits which could be used to assign an earlier effective date. The Veterans Court sent the case back to the BVA to determine whether there was an 1151 claim which was non adjudicated and thus still pending.

The Court recognized that pending claims are formal or informal applications which have not been finally adjudicated, that such claims can remain pending if the Secretary fails to act on them or where the Secretary fails to notify the claimant of a decision denying the claim, and that if a claim is left pending, it can be addressed when a subsequent claim is processed.

The Veterans Court concluded that a reasonably raised claim remains pending until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim had been decided or an explicit decision of a subsequent claim for the same disability. Leaving no doubt that secret deemed denials are impermissible, the Veterans Court stated that such decisions would “run afoul” of due process concerns because the VA’s non adversarial claim system requires notice and an opportunity to be heard and it would relieve the VA of the Congressionally mandated duty to notify and the duty to assist.

Unless and until the United States Court of Appeals for the Federal Circuit reverses Ingram no secret denials will be tolerated. Notwithstanding the prohibition against secret denials, veterans and those who represent them will still need to be vigilant and thorough to make sure that there is no language in a rating from which the veteran “could deduce” that a claim has been silently denied.

NON MEDICAL EVIDENCE OF CONTINUOUS SYMPTOMS

In the Barr case, decided June 15th the Veterans Court began by disagreeing with the VA’s conclusion that only someone with medical expertise can testify about the presence of varicose veins and stating that the presence of varicose veins is a condition concerning which a lay (a non medically trained ) person can identify because like flat feet and dry, scaling skin they are conditions within a person’s knowledge and personal observation.

Expanding on its conclusion, the Court stated that the VA cannot reject out of hand the veteran’s lay observations that he had continuous symptoms of varicose veins since military service, but rather must consider and weigh that lay evidence.

CURRENT DISABILITY

Also in June in the McClain case the Veterans Court reversed the BVA decision which had denied benefits based on the determination that the veteran “no longer manifested a psychiatric disability”. The veteran, who filed his claim in 1994, was diagnosed in 1995 with depression probably due to Gulf War Syndrome but the August 1997 exam which agreed that he had “possible Gulf War Syndrome” did not diagnose depression.

The Court noted that the requirement of “current disability”is satisfied when a veteran has a disability at the time when a claim is filed or at any time when the claim is pending even if the disability is no longer present at the time of decision. In such a situation a “staged rating”, granting different percentages of impairment for different periods of time is appropriate.

INCARCERATED VETERANS

In the course of deciding that the attorney fees for a lawyer who helped an incarcerated veteran receive benefits is calculated on the whole amount of awarded benefits, not the reduced 10% actually given to the veteran, the United States Court of Appeals for the Federal Circuit, in the Snyder case raise an interesting issue by noting that there is a question about what happens to the rest of the veteran’s money.

The VA’s procedure is to keep 90% of the money awarded to the veteran, relying on 38 U.S.C. § 5313, and to not to give it back to the veteran after the veteran is released from incarceration. Although that question was not raised in the Snyder case, and therefore could not be decided, the Federal Circuit noted the VA’s suggestion that the money withheld is forever lost to the veteran but expressed “no view on it”.

From the Federal Circuit’s treatment of the VA’s understanding of its right to reduce attorney fees and only pay fees on 10% of the amount awarded, the Court may have a similar problem with the VA refusing to return the remaining 90% to the veteran after incarceration ends.