"It is the duty of the people to care for him who shall have borne the battle, his widow, and orphan."
-Abraham Lincoln

Wednesday, May 26, 2010

DIC: What is Intentional and Wrongful

DIC: What is Intentional and Wrongful

The case of Keith A. Roberts v. Eric K. Shinkseki, Opinion Number 06-2699, decided May 17, 2010, remanded a denial for DIC.

This remand occurred after the Court of Appeals for the Federal Circuit vacated and remanded and a decision by the court which affirmed denial of disability and indemnity benefits to a woman because she killed her husband, the veteran.

The woman had entered a plea of nolo contendre and been found guilty of manslaughter. 28 C.F.R. section 3.11 prohibits receipt of any DIC benefits for someone who intentionally and wrongfully caused the death of the veteran. The case was reversed because in Florida (the site of the crime and plea) intent is not necessarily an element of manslaughter, and the Court required that the VA make a factual determination as to whether a possible beneficiary intentionally or wrongfully caused the death.

Many States do not require intent for manslaughter which means the VA can not simply deny a claim based on the conviction but must make a further factual determination regarding intentionality and wrongfulness.

Decision by Judges Kasold, Davis and Schoelen.

Friday, May 7, 2010

Roberts: Severing Service Connection Based on Fraud

Severing Service Connection for PTSD Based on Fraud

The case of Keith A. Roberts v. Eric K. Shinkseki, Opinion Number 05-2425, decided April 23, 2010, affirmed the severing of service connection for PTSD based on fraud.

Here, the Board had severed service connection for PTSD based on fraud and clear and unmistakable error. Additionally, they denied service connection for a number of ailments that were alleged to have been secondary to the PTSD. Finally, the Board denied service connection for dysthymia and depression.

The Court largely affirmed by affirming the severance of service connection and denial of service connection on any secondary theory, while reversing as to depression and dysthymia because the Board had not considered whether they were directly related to service.

Factually, the veteran claimed that he witnessed his friend’s death in an accident while working on an airplane and led the efforts to try to save his friend. However, at some time the veteran had filed a complaint with the VA Office of Inspector General regarding VA mishandling of his claim. The Office of Investigations investigated and found that the veteran was not actually a witness to his friend’s death and according to other witnesses not even a friend to the decedent.

The Court found the veteran had committed fraud. The Court closely looked at sections 3.105, 3.957, and 3.500. If service connection has existed for 10 years the VA generally cannot sever service connection. However, the Court found “when fraud is found to have formed the basis for an award of service-connected benefits, regardless of the length of time a claimant has been in receipt of these benefits, severance of the award can be made upon a showing of fraud.”

Judges Hagel wrote and Schoelen joined in a concurring and dissenting opinion. In it, Judge Hagel saw the issue of this case as the fair process of adjudication of the claim. Basically, they disagreed with the failure to provide 3.105(d) protections. These are essentially notice of reasons of severance and allowing a beneficiary 60 days to present evidence. Additionally, 3.105(d) shifts the burden to the VA and requires clear and unmistakable error in the original rating decision.

Judge Hagel also expressed concern regarding the impact of the Court’s action on a situation such as this one where the veteran claimed various PTSD stressors but the VA only awarded on one of them. He wrote that “I believe that-certainly before VA may sever service-connection in a case such as Mr. Roberts’-where VA is aware of other stressors that could serve as a basis for continuing the award of post-traumatic stress disorder, VA must consider the validity of the other potential stressors. After such review, if VA determines that the accumulated evidence regarding another potential stressor is not adequately developed, it should be take appropriate steps to further develop that evidence.”

He also called into question the adequacy of the medical examination which found the veteran did not have PTSD. The examination basically found that because the stressor was no longer considered valid, the veteran could not possibly have PTSD. Notably, the examination did not discuss other possible stressors. Disturbingly, the VA tabbed what it considered to be “pertinent evidence” while saying the “much of the other documentation consists of duplicate copies of the claims folder.” Judges Hagel and Schoelen found a medical examination undertaken in such a manner did not meet standards of basic fair play (that evidence be procured in a manner that is impartial, unbiased, and neutral).

The case is difficult because the bad actions by the veteran make it understandable that the Court and VA would reach a conclusion of severance. However, Judges Hagel and Schoelen certainly raise important objections, especially as to the potential duty to develop other stressors that were raised at the original during the initial claim and concerns over the impartiality of the medical examination. This might be an example of bad facts making bad law.

Decision by Judge Greene, with a dissenting opinion by Judge Hagel and joined in by Judge Schoelen. And, a concurring opinion by Judge Lance..