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The latest decision in a line of cases dealing with the difficult issue of determining whether a claim is defined by a diagnosis, by symptoms or by a theory is the case of Tyrues v. Shinseki, ___Vet. App.___ appeal no. 04-0584, decided October 2, 2009.

The issue was whether the veteran lost his right to appeal the September 1998 denial of his claim for a lung disorder. He had filed twice after returning from active duty in the Persian Gulf and after being hospitalized for pneumonia. First in March 1995 on the theory of “direct service connection”, and then in December 1996 on the theory of “Persian Gulf Syndrome”

Although a 1997 exam diagnosed possible Persian Gulf Syndrome, in April 1998 the Regional Office (“RO”) denied service connection for a lung disorder both on a direct basis and as due to an undiagnosed illness. Following an appeal to Board of Veterans Appeals (“BVA”), the BVA, in September 1998, denied compensation for a lung condition based on direct service connection as not well grounded (a requirement which was removed by and remanded to the BVA the issue of compensation for an undiagnosed illness manifested by shortness of breath for further development.

The veteran did not appeal the BVA decision. Over a year after the second VA exam, in December 1998, which concluded that his lung condition is probably chronic bronchitis, the BVA issued a decision, in February 2000 denying the claim for shortness of breath resulting from an undiagnosed illness. The veteran appealed to the Court and the Veterans Court vacated the 2000 decision and remanded the claim for proper notices and for further development. A third VA examiner concluded that the veteran did not have any current respiratory symptoms, that he is allergic to certain paints and vapors, and that his symptoms are not related to exposure to fumes during the Gulf War. In April 2004 the BVA denied the claim for compensation for a lung disorder because the evidence did not support a finding that it resulted from an undiagnosed illness. The Veteran appealed to the Court seeking review of both the 2004 decision and the 1998 decision.
The CAVC declined to decide whether the veteran had two separate claims or a single claim based on two theories. Indeed, the various concurring and dissenting opinions issued in this appeal dhow that the judges could not agree on whether there were multiple claims or multiple theories. Nor could they agree on the definition of a claim.

Either way the Court decided the veteran is out of luck with respect to the 1998 denial because the 1998 BVA decision was a final decision which had not been appealed to the Court within 120 days. It did not matter to the Court’s analysis that the Board was still considering a portion of the claim for benefits based on presumptive service connection. In so ruling, the CAVC specifically overruled its 1991 decision in Harris “to the extent that it stands for the proposition that this Court has no jurisdiction over a Board decision that denied a claim if that claim is ‘inextricably intertwined’ with another claim that the Board remanded”.

Adding more confusion to this difficult to understand opinion, the Court also noted that had the veteran appealed in 1998, after the first denial, the Court may have decided not to hear the appeal because of the still pending issue or claim.

Nevertheless, it cautioned that a veteran who does not appeal because of the remand and development of a related claim or issue risks having the denied issue or claim being non appealable at a later date even though if appealed the Court may decide it is inextricably intertwined and refuse to accept the appeal.

What is a veteran to do? Appeal every meritorious claim which results in an unfavorable decision whether you think it is final or not! Let the Court sort out whether it is final or not. That way you do not lose your appellate rights

Secretary of Veterans Affairs Eric K. Shinseki announced on October 13, 2009, that the VA will add three new diseases to its list of 12 illnesses associated with exposure to Agent Orange. The three newly recognized diseases are:. Ischemic heart disease (including coronary artery disease);
Parkinson’s disease; and. B cell leukemias (such as hairy cell leukemia).

Although the regulations have not yet been issued any veteran with any of those diseases who was exposed to Agent Orange, in service, or who served in Vietnam should immediately file a claim. Similarly, surviving dependents of veterans who died as a result of any of those conditions may be entitled to DIC benefits and should immediately file.

Retroactive benefits will be determined based on the date the claim was filed.

This entry was posted on Sunday, November 1st, 2009 at 4:35 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.