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CHRONIC LYMPHOCYTIC LEUKEMIA

On July 19,2007, in Nehmer v. USDVA the United States Court of Appeals
for the Ninth Circuit described the conduct of the VA as a “disturbing story” which “has contributed substantially to our sense of national shame”. This involved the VA’s misinterpretation of the terms of the settlement decree in the Agent Orange case and its refusal to re adjudicate the prior claims of Vietnam veterans suffering from Chronic Lymphocytic Leukemia after the VA finally issued regulations in 2003 finding that the disease is associated with Agent Orange Exposure and thus eligible for “service-connection”.

For Vietnam veterans who filed claims for benefits for Chronic Lymphocytic Leukemia caused by Agent Orange exposure before 2003, the latest Nehmer may result in increased past due benefits.

For Vietnam veterans who have diseases which the VA refuses to accept as related to service, make sure to file a claim even if the evidence linking the disease to service is presently unavailable. Once the VA accepts the disease as presumptively related to Agent Orange exposure re adjudication and past due benefits will result.

NO PRESUMPTION FOR GULF WAR VETERANS

On August 24, 2007 the VA published in the Federal Register (Vol 72, No. 164, pages 48734-48741) its determination not to establish a presumption of service connection for “Gulf War Syndrome” based on exposure to insecticides and solvents. The VA’s justification for refusing to offer the presumption is the VA’s belief that, although the National Academy of Science (NAS), in its February 2003 report, found evidence of a causal connection between various diseases and various insecticides and solvents utilized during the Gulf War the substances studied were not used chronically, exclusively or predominantly in combat deployments. See: http://a257.g.akamaitech.net/7/257/2422/01jan20071800/edocket.access.gpo.gov/2007/E7-16733.htm

The VA’s refusal to impose a presumption does not prevent veterans from utilizing the February 18, 2003 NAS report to prove entitlement to benefits based on direct service connection. For example, a veteran who served in the Gulf War, who during the tour in the Gulf had chronic exposure to insecticides and/ or solvents and who developed leukemia, contact dermatitis, bladder cancer, kidney cancer, non-Hodgkin’s lymphoma, multiple myeloma, neurobehavioral effects, reactive airway dysfunction, hepatic steatosis, or glomerulonephritis could, without the effect of the presumption, have a treating doctor rely on the NAS report to conclude that it is more likely than not that the exposure caused the disease.

CHALLENGE TO VA EXAM PROCEDURES

It has been understood for the past few years, based on the decision in Wanner v. Principi, 370 F.3d 1124 (Fed. Cir. 2004), that a veteran is precluded from challenging the content of the rating schedule. So for example, a veteran’s challenge to challenge to the failure of the rating schedule to list periodontal disease as a disability or a compensable disability was rejected as a prohibited challenge.

Recently, in Martinak v. Nicholson, no. 05-1195, decided August 23, 2007, the Veterans Court stated that it is permissible to challenge “ a regulation prescribing the policies and procedures for conducting a VA medical examination” because that is not a part of the rating schedule. Although the challenge to the VA’s policy of conducting hearing tests in a sound-controlled room failed in the Martinak case, for lack expert medical evidence demonstrating that such a test procedure produces inaccurate, misleading, or clinically unacceptable test results, it opens the door to challenging exam procedures where the challenge is backed by medical evidence criticizing the procedures utilized.

What this means is if a non VA treating doctor can explain why the VA’s procedure for testing impairment caused by, for example, back injuries is inaccurate or clinically unacceptable, the VA’s testing procedure might be successfully challenged.

WHAT IS SUFFICIENT NOTICE BY THE VA?

The Veterans Court is still not in agreement what constitutes sufficient notice to a veteran. In July, in Locklear v. Nicholson, 20 Vet. App. 410,415-16 (2006) the Veterans Court concluded that legal analysis of the evidence is not required in VA notices sent in furtherance of the VA’s duty to provide notice but in December 2006 the Federal Circuit said in Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) that a general notice is inadequate.

Recently in Hupp v. Nicholson, 03-1668, decided July 18, 2007, the panel split, with two Judges concluding that the more detailed the claim, the more detailed, in terms of relevant law and regulations and lay and medical evidence, the notice must be. The dissenting Judge said that the content of the required notice is determined by the record, not by the application. Thus, according to at least one Judge, the VA was required to review all the evidence which is in the record and then was required to provide notice to the claimant that the claim could have been substantiated by submitting scientific or medical studies linking chronic myelogenous leukemia to Agent Orange exposure.

Specifically, the dissenting Judge is advocating for a “cognitive view” of the evidence leading to a tailored VCAA notice responding to the claim and all the evidence, but the Judge is stopping short of requiring an assessing or weighing of the evidence.

EVIDENCE OF PREJUDICE CAUSED BY FAULTY NOTICES

In Newhouse v. Nicholson, 2006-7302, decided on August 10, 2007, the
Federal Circuit decided that the Veterans Court is required to examine the administrative record to determine whether any errors by the VA under the provisions of the Veterans Claims Assistance Act (VCAA) were prejudicial to the veteran. In this case the veteran had asserted that VA failed to provide adequate notice pursuant to 38 U.S.C. § 5103(a) (2005) and the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096, because “he had no notice that the BVA would discount or ignore previously submitted evidence, or that he might need other evidence to substantiate his claim”.

The Newhouse case teaches that even though the veteran was not told that what evidence he needed to submit to support his claim the Court may discounted the lack of notice as un important if the Court concluded that the record shows that the veteran’s actions in submitting hearing tests showed that he knew what he had to submit.

This case suggests that veterans need to write to the VA to explain that the veteran believes all the necessary evidence has been submitted and to ask what further evidence is necessary to prove the claim. Further, at the BVA level the veteran needs request guidance on what addition evidence is required and after a denial from the BVA it may be advisable to ask the BVA for reconsideration based on lack of proper notice and to explain to the BVA how the lack of information and notice from the VA and BVA led to the veteran failing to submit evidence which the BVA now says was required to win the case.

LAY EVIDENCE TO PROVE DIAGNOSIS OR ETIOLOGY

In the case of Jandreau v. Nicholson, 2007-7029, decided on July 3, 2007,
the Federal Circuit reversed the Veterans Court’s decision that, where the veteran’s medical records were destroyed in the 1973 fire, lay evidence could not be used to show that the veteran had dislocated his shoulder in basic training.

In reversing, the Federal Circuit relied on its earlier Buchanan decision that lay evidence “must be considered” and “competent lay evidence can be sufficient in and of itself” but noted that this rule is “particularly important” when veteran’s service medical records have been destroyed.

Specifically, the Federal Circuit noted that a layperson (non doctor) can establish a diagnosis when the layperson is competent to identify the medical condition ( such as a broken leg), where the layperson is reporting a contemporaneous medical diagnosis ( presumably made by a trained medical provider), or where lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.