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In a historic decision, in the Sanders and Simmons cases which were decided together as, Shinseki v. Sanders, 556 U.S. ___, no.07-1209, April 21, 2009, the Supreme Court of the United States eliminated the special evidentiary benefit which the Unites States Court of Appeals for the Federal Circuit had granted to veterans in the area of prejudicial error.

Prejudicial error is very important to veterans who appeal to a court because even if the appellate court determines that the VA’s actions were wrong and that the VA committed error, if the court determines that the error the VA committed was not prejudicial, the unfavorable decision stands.

In Mr. Sanders case the VA violated the law contained in the Veterans Claims Assistance Act (“VCAA”) 38 U.S.C.§ 5103 by not telling him what evidence which was lacking the VA would try to get and what evidence he must get. The Veterans Court determined that the errors were harmless and it therefore approved the BVA’s denial of benefits.. The Federal Circuit disagreed, concluding that all notice errors should be presumed to be prejudicial, requiring reversal unless the VA can show that the error did not affect the essential fairness of the proceedings.

In Ms. Simmons case the VA failed to tell her what further information was needed to substantiate her claim. The Veterans Court and the Federal Circuit both found the VA’s error to be prejudicial, but their reasoning differed. The Veterans Court concluded that the error of failing to tell a veteran what evidence is required has “the natural effect’ of being prejudicial. But the Federal Circuit went further and applied its reasoning in Sanders and concluding that all notice errors should be presumed prejudicial.

The Supreme Court disagreed with the Federal Circuit in both cases, saying that the approach to prejudicial error in veterans’ cases should be the same as other civil cases where the person appealing must prove that the error is prejudicial. The Court did leave a little wiggle room refusing to overrule the Veterans Courts’ determination that some kinds of notice errors have the natural effect of causing error without the benefit of a presumption.
As a result veterans may expect to find that if the VA fails to provide any notice telling them what is lacking to win their claim that the Court will find that error to have the natural effect of being prejudicial unless the VA can prove otherwise. Where the error is that the VA failed to tell them who is to find and submit what evidence, that error will not be presumed to be prejudicial and the veteran will be required to prove it was prejudicial by showing what the veteran would have done if the required notice had been given. See Pope v. Shinseki, ___F.3d ___, no.2006-7322, decided May 1, 2009.

In addition to the duty to notify, the VA also has a duty to assist, which requires the VA to assist a veteran in obtaining evidence to support a claim. 38 U.S.C. § 5103A. In a recent case, the Federal Circuit agreed with the veterans Court that the duty to assist does not require the VA to provide the veteran’s doctor with evidence which is already in the veteran’s possession, Walch v. Shinseki, __F.3d __, no. 2008-7052,decided April 30, 2009.

In the case of Polovick v. Shinseki, ___Vet. App.___, no. 06-3024, decided April 22, 2009, the Veterans Court reversed the decision by the Board of Veterans Appeals which concluded that the evidence did not support the conclusion that the veteran’s brain tumor which caused his death was not related to his exposure the Agent Orange. The VA relied upon an opinion by the Armed Forces Institute of Pathology which was based on a 2002 study by the Institute of Medicine which placed brain tumors in the category of “limited/Suggestive Evidence of No Association” with Agent Orange exposure. Based on that study the VA rejected three medical opinions which were in the veteran’s favor. In rejecting the VA’s analysis and sending the claim back for a do over the court set forth guidelines for evaluating evidence. First the Court said the opinion of a doctor which found a statistical correlation between Agent Orange exposure and a disease not found on the Secretary’s list of diseases presumptively caused by Agent Orange would not be found to be credible. However, a medical opinion cannot be rejected simply because the opinion is based in part on statistical analysis. A doctor’s opinion cannot be rejected as contrary to the statistics where it is based on the statistics and the added factors of the interval of time between the Agent Orange exposure and the onset of the tumor; the propensity of Agent Orange to cause genetic defects which lead to tumors; and the veterans lack exposure to of other risk factors for a brain tumor.

This entry was posted on Friday, May 1st, 2009 at 2:22 pm and is filed under Veterans Newsletter. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.