It’s the Law March 2009
Tuesday, March 10th, 2009
by Richard Cohen, Esq.
©2009 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
In the latest decision arising out of the “Blue Water Veterans” agent orange case, the Veterans Court was compelled by a decision by the Federal Circuit to reverse its earlier, landmark decision, that Mr. Haas and other Navy veterans were entitled to the presumption that they had been exposed to Agent Orange, even though they never served on the soil of Vietnam. One good thing came out of the decision in Haas v. Shinseki ___Vet. App.___, 04-0491, March 10, 2009. The ruling that Mr. Haas’ statements that his diabetes, peripheral neuropathy, and loss of eyesight began in 1980 requiring treatment is sufficient to meet the “low threshold” to “indicate” that his diabetes “may be associated” with service, thus requiring the VA, pursuant to 39 U.S.C. § 5103A, to provide the veteran a medical examination to determine whether it is likely his current disability was caused by service.
In Robinson v. Shinseki, ___Fed. 3d ___ , 2008-7095, decided February 25, 2009, the Federal Circuit settled the issue of liberal reading of filings by concluding that the pleading filed by a veteran must be liberally construed whether or not the veteran is represented by counsel.
The importance of liberal reading of pleading was later demonstrated in two decisions of the Veterans Court.
In Boone v. Shinseki ___Vet.App.____ 08-1257, decided March 10, 2009, after losing at the BVA, the veteran, without representation filed a Statement in Support of Claim form at the Regional Office. Although the form which was filed in January stated that he wanted to appeal the October BVA decision, contained a statement of a specific error committed by the Board, and stated that he could not afford an attorney to take this to the court, the RO did nothing until a counselor told the veteran in April that the form needed to be sent to court. The form was received by the Court in April. Rather, than considering the statement to be a notice of appeal and excusing the late filing, the Court rejected the appeal finding that paper filed could be liberally construed as a request for BVA reconsideration. Although the appeal to the Court was dismissed, the liberal construction by the Court keeps the appeal alive in the BVA by requiring the Board to decide the reconsideration, thus allowing the veteran a fresh 120 clock after denail of reconsideration to appeal to the BVA..,
Similarly, in Kouvaris v. Shinseki ___Vet. App.___, 08-0548, decided February 25, 2009, the CAVC decided that a Statement in Support of Claim form which the veteran filed with the BVA in October which had “Notice of Disagreement” written across the top and which stated that it was being filed with the Department of Veterans Affairs Board of Veterans’ Appeals, was liberally construed as a request for BVA reconsideration, even though it lacked the date of the BVA decision sought to be reconsidered. Once again the appeal is kept alive by a liberal reading of a terse document misfiled at the RO.
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