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In a recent decision a divided Court ruled that the failure to argue a theory of a claim in he appeal to the Board of Veteran Appeals results in the waiver of the right to argue to the Court that the VA committed error in not considering that theory.

Until the case of Robinson v. Mansfield, 21 Vet. App. 545 (2008) is reversed by the Federal Circuit, veterans and their representatives must be careful to argue all possible legal and factual theories in the VA Form 9, the appeal the BVA. Failure to do so will allow the VA to argue, based on Robinson, that any theories not argued cannot be a reason for the Court to reverse the VA’s denial of benefits.

In Robinson the claims file contained an examination report showing that, while in service, the veteran had irregular chest pains and had seen black dots in front of his eyes. However, the veteran’s claim for benefits for service connected heart disease and thyroid condition was denied, although he was granted benefits for service connected peptic ulcer disease. Apparently, relying on the VA’s rating which denied service connection for his heart condition as secondary, or caused by, his peptic ulcer disease, the veteran appealed asserting that the heart disease was a secondary condition.

Although, the BVA initially sent the claim back to the Regional Office for an exam to determine the cause of the heart disease and whether it was secondary to the peptic ulcer condition, the examiner did not explain the cause of the heart disease. Rather, he merely concluded that it was unrelated to the peptic ulcer. After, the BVA denied the claim for service connected heart disease, the veteran argued that because of the records showing heart related symptoms in service the examination was inadequate and it failed to comply with the instructions that it explain the cause of the heart disease.

A majority of the judges on the Robinson panel of the Veterans Court concluded that the VA’s duty to assist does not require the VA to review all the evidence in the record and consider all possible theories of entitlement to benefits. Moreover, the majority concluded that because the veteran’s appeal did not mention “direct service connection” the VA did not need to consider that theory and the VA was not required to mention and consider the medical records showing possibly heart related symptoms.

One judge disagreed, relying on the VA’s duty to assist-“the cornerstone of the nonadversarial claims adjudication system the Agency is meant to operate”. Because of the evidence in the record which could have implicated a direct theory of service connection, the dissenting judge would find that the VA violated 38 U.S.C. § 7104(a) in failing to base the decision on “all applicable provisions of law and regulation” regardless of whether the veteran tells the VA which provisions to apply. Also that judge concluded that the VA must investigate all possible in-service causes of a current disability and the veteran did not waive consideration of such development. Indeed, that judge determined that the nonadversaria laws and regulations governing veterans’ benefits do not impose a requirement of issue exhaustion or waiver of issues not raised .

Until the issues of waiver and the VA’s duty to assist is clarified, veterans and their representatives must be careful to argue all possible theories of entitlement to benefits and to call to the VA’s attention all evidence which might be helpful to the veteran’s claim. Reliance on the VA’s duty to assist is a recipe for disaster.

Another recently decided case explained that, although the VA is not required to give a specific notice directed toward the evidence in the file, where the veteran claims that a service connected disability has worsened or increased in severity, the VA is required to notify the veteran that to substantiate the claim the veteran must provide, or ask the VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that the worsening has on the veteran’s employment and daily life. Further, the VA must inform the veteran about the specific criteria contained in the VA’s diagnostic code for an increased rating.

So, in Vazques-Flores v. Peake,___Vet. App. ___, 05-0355, decided January 30, 2008, the Veterans Court decided that the veteran who had a 30% rating for kidney stones was entitled to a more detailed explanation of why his request for benefits for a psychiatric condition cause by his kidney stones was denied, and was entitled to notice that he might be able to get a higher rating by showing “hydronephrosis” which may be rated a renal dysfunction which can result in a rating of 60%.

One portion of the Vazques-Flores decision is the conclusion, by a majority of the panel that there are now 4 ways the VA can overcome the presumption that the failure to provide proper notice to the veteran was prejudicial. Previously, the Court concluded that the VA can overcome the presumption of prejudice by showing that the veteran had actual knowledge of the what was necessary to support the claim; that a reasonable person would understand what was necessary; or that no benefits could be awarded as a matter of law. Of course, because there is rarely sufficient evidence in the file to show that the veteran had actual knowledge or what a reasonable person would understand the most common way of defeating the presumption of prejudice is for the VA to show that the veteran’s claim is bogus. To further help the VA disprove that the veteran was prejudiced by a improper notice the majority of this Court would look at all the notices sent out after the denial to determine whether looking at notices sent out both before and after the decision essentially shows that the denial was essentially fair. This is just the latest attempt by the veterans court to undercut the protections provided by Congress to veterans, and to justify the failure of the VA to inform the veteran what is required to prove entitlement to benefits.