It’s the Law January 2009
Wednesday, January 7th, 2009
by Richard Cohen, Esq.
©2008 Richard Cohen
Attorney at Law
235 High Street, Room 513
P.O. Box 771
Morgantown, WV 26507-0771
(304)-413-0838
vetlaw @wvajustice.com
http://www.wvajustice.com
January 2009
MEDICAL OPINIONS
In a groundbreaking case the Veterans Court put a stop to the VA’s practice of rejecting private exams for based on the failure of the private doctor to have reviewed the entire claims file.
In the appeal of Nieves-Rodriguez v. Peake dockret 06-0312, decided December 1, 2008, the Veterans Court was faced with a typical situation where the VA rejected the opinions of a treating physician and of an examining physician both of whom concluded that he developed depression as a result of his Guillain-Barre syndrome which was treated in service. The reason given for rejecting those opinions was that neither private psychiatrist performed an in depth claims file review.
In rejecting the VA’s reasoning the Court noted that the VA sought to set up a situation where the absence of the claims file would operate as an automatic penalty against an opinion offered by a private physician. The Court specifically decided that when the Board uses facts obtained from review of the claims file as a basis for crediting one expert opinion over another, it is incumbent upon the Board to point out those facts and explain why they were necessary or important in forming the appropriate medical judgments. Additionally, claims file review, as it pertains to obtaining an overview of the claimant’s medical history, is not a requirement for private medical opinions. The Court concluded that a private medical exam may not be discounted solely because the opining physician did not review the claims file. And, the Board may not prefer a VA medical opinion over a private medical opinion solely because the VA examiner reviewed the claims file
Once again a veteran the VA has evaded its responsibility to provide notice to a veteran by hiding behind the prejudicial error rule.
In Gallegos v. Peake docket 05-2920, decided December 31, 2008, the Veterans Court agreed with the veteran that the VA failed to provide the notice required by 38 C.F.R. § 3.304(f) concerning the alternate forms of supporting evidence which might be submitted to support a claim for benefits based on PTSD resulting from in-service personal assault. Notwithstanding the VA’s failure to follow its own regulations the Court did not send the case back for new notices. Rather, the Court decided that the error did not prejudice the veteran because his submission of some alternate types of evidence showed and because his representative referred to the regulation at a hearing, that he knew what was required without receiving notice from the VA.
There is some good news and some bad news in Acciola v. Peake docket 06-0542, decided December 5, 2008 regarding claims alleging clear and unmistakable error.
The good news is that veterans will not be penalized for being represented because the Court accepted the VA’s concession that all pleadings are to be read sympathetically regardless of the type of representation. However, the bad news is that the Court ruled that the VA need not fill in the gaps to infer a theory of error which is not clear in the pleadings. So if the pleading could encompass numerous theories the Court concluded the VA must dismiss the pleading without prejudice to reallege a specific theory.
Applying that law, the Court decided that the veteran had not asserted as error that the VA failed to decide his claim on a direct service connection basis. Rather, the Court found that the veteran’s argument was directed to presumptive service connection and entitlement to direct service connection was mentioned by “paraphrasing of the basis entitlement statute”. Accordingly the veteran’s “CUE claim” was dismissed without prejudice to reassert the claim.