Tatum: Convalescent Evaluations

Tatum: Convalescent Evaluations

The decision in Willie E. Tatum v. Eric K. Shinkseki, Opinion Number 08-3782, decided November 3, 2010, involved the scheduler rating for convalescence after surgery for prostate cancer, DC 7528.

The case involved the proper rating for prostate cancer under Diagnostic Code 7528. The DC requires a 100% rating that continues for a minimum of 6 months from the time of treatment (i.e., surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure). The note to the code states any change in evaluation shall be subject to notice provisions.

Service connection was granted after surgery and staged to give a 100% rating for 6 months and a 0% rating by the VARO which was increased to a 10% rating by the BVA. The veteran argued he should have been given notice under section 3.105(e)before the reduction to 0% or 10% and as a result he was entitled to a 100% rating until the time of the appeal. The Court rejected this argument and said the plain meaning of the regulations was that when a claimant is currently in receipt of a convalescent evaluation under DC 7528, a six month mandatory medical evaluation and 3.105(e) notice must be provided before reduction of the convalescent evaluation. But, that when the award is made after the convalescent period, it is appropriate for the award to be staged and then additional 3.105(e) notice is not required.

Additionally, the Secretary conceded that BVA did not adequately address (1) the actual date of the cessation of the veteran’s treatment and (2) whether the veteran suffered a local reoccurrence or metastasis. Importantly, the 100% rating continues for at least 6 months after the date of cessation of treatment.

The decision is a good example of staging and as well as the VA’s failure to fully address all the evidence in a case.

Decided by C.J. Kasold, and J. Davis and Schoelen.

VA's Duty to Assist in Clarifying a Private Medical Opinion

Savage: The VA’s Duty to Request Clarification

The decision in James E. Savage v. Eric K. Shinkseki, Opinion Number 09-4406, decided November 3, 2010, involved whether the VA had a duty to seek clarification from a private physician regarding medical notes.

The case involved a dispute over the appropriate disability rating for hearing loss. Private physician records suggested a higher rating but the VA determined they were not adequate for VA rating purposes because it was unclear whether the speech discrimination tests were conducted using the Maryland CNC test. Importantly, the rating schedule specifically calls for use of the Maryland CNC test.

The Court noted the general duty to assist and 38 C.F.R. § 19.9 which says “If further evidence, clarification of the evidence, correction of a procedural defect, or any other action is essential for a proper appellate decision, a [Board member] shall remand the case to the agency or original jurisdiction, specifying the action to be undertaken.” Id. at *6. 38 C.F.R. § 4.2 specifically calls for requesting an explanation of an inadequate examination and the Court found this also extended to private physician reports. Thus, the Court determined when a private examination report reasonably appears to contain information necessary to properly decide a claim but it is “unclear” or “not suitable for rating purposes,” and the information reasonably contained in the report otherwise cannot be obtained, VA has a duty to ask the private examiner to clarify the report, or the Board must explain why such clarification was not needed. Id. at *14.

While potentially a broad ruling, the Court was careful to limit it saying they do not intend the VA to “inquire of private medical experts regarding the opinions expressed in their examination reports or the general bases thereof. Indeed, we do not expect that clarification of a private examination report will be necessary in most instances.” Id. at *16. “Rather, our holding is limited to those instances in which the missing information is relevant, factual, and objective—that is, not a matter of opinion—and where the missing evidence bears greatly on the probative value of the private examination report.” Id. at *16. The Court said, in this case “the questions of which speech recognition test was used is a factual, objective one to which there is a yes or no answer; the question of whether the Maryland CNC Test was used does not in any way rely on the opinion of the examiner.” Id. at *16.

Thus, this case will make it harder for the VA to ignore a medical opinion for a seemingly technical point while also opening the door to the VA requesting additional information from a private physician. If the VA interprets the case narrowly, the implications are probably also narrow.

Decided by C.J. Kasold, and J. Hagel and Davis.

Shade: New and Material Evidence Sufficient to Reopen a Claim

Shade: New and Material Evidence

The decision in William Shade v. Eric K. Shinkseki, Opinion Number 08-3548, decided November 2, 2010, involved whether new and material evidence existed sufficient to reopen a claim.

The decision is basically a study on the application of the new and material evidence standard. This standard is important because once a claim has been denied, it can only be reopened if the veteran submits new and material evidence. New and material evidence is evidence not previously submitted to the VA which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim.

The decision is also complicated somewhat by a discussion of the history of 38 C.F.R. § 3.156(a) (which defines new and material evidence) in reference to the VCAA Act of 2000. Without dwelling on this point, the facts of the case were that the veteran was seeking to reopen a denied claim for service connection for a skin disorder. The claim had previously been denied on the basis that the veteran did not show a current diagnosis and lacked a medical nexus opinion linking the present disability to service. The veteran submitted an application to reopen his claim and submitted a current medical diagnosis from his private physician as well as his own sworn statement that he had had the skin disorder for years. The application to reopen was denied on the basis that he had not provided a medical nexus opinion.

The Court categorically rejected the VA’s finding that a medical nexus opinion was required to reopen and stated “In a case where medical nexus evidence is missing, if § 3.156(a) were read to require a claimant to submit medical nexus evidence to fulfill the requirement to submit new and material evidence, then § 3.159(c)(4)(iii) [which mandates a duty to assist which includes a duty to provide a medical examination] would be rendered meaningless.” Id. at *14. The Court noted the new and material evidence standard is a low threshold and stated that the rule requires the VA to consider whether the new evidence “raises a possibility of substantiating the claim.

The concurring opinion by Judge Lance agrees but provides practical guidance by stating that if new evidence is neither cumulative or redundant, the VA should ask “If I assume that this new evidence is credible, would all the evidence in the file considered together be sufficient to at least trigger some further assistance?” Id. at *19.

The Court also briefly discussed the VA’s rejection of evidence as cumulative. The veteran had made statements in a hearing and the VA had rejected the statements as cumulative of evidence previously in the record. The Court noted the veteran had never previously provided sworn testimony and that the testimony (he had had symptoms for many years) was relative to the issue of nexus. The Court noted the BVA’s role as fact finder but reminded it that the credibility of new evidence is to be presumed in making a reopening determination.

Decided by J. Hagel, Moorman, and Lance.

Vazquez-Flores: VCAA Refined Again

Vazquez-Flores: VCAA Refined Again

The decision in Angel Vazquez-Flores v. Eric K. Shinkseki, Opinion Number 05-0355, decided October 22, 2010, involved the impact and reach of the U.S. Supreme Court’s decision in Shinseki v. Sanders, 129 S.Ct. 1696 (2009).

As a review the Federal Circuit Court of Appeals had held that all types of VCAA (Veteran Claims Assistance Act of 2000) notice errors were presumed to be prejudicial and that the Secretary had the burden of proving the notice error was not prejudicial. This was a change from the Court of Appeals for Veteran Claims earlier rulings that the VCAA can be divided into four elements: (1) notice of what information or evidence is necessary to substantiate the claim; (2) notice of what subset of the necessary information or evidence, if any, that the claimant is to provide; (3) notice of what subset of the necessary information or evidence, if any, that the VA will attempt to obtain; and (4) a general notification that the claimant may submit any other evidence that he has that may be relevant to the claim. In Mayfield v. Nicholson (2005), the Court of Appeals for Veteran Claims had held that although the first type of notice error was presumed prejudicial, the claimant was responsible for proving prejudice from the other types of notice errors.

On appeal, the Federal Circuit reversed. Reasoning that the VCAA was intended to be particularly pro-claimant and therefore obligated the VA to assist veterans claiming benefits, it held that all VCAA-notice errors should be presumed prejudicial, requiring reversal unless the VA can show that the error did not affect the essential fairness of the adjudication. The VA can show this by demonstrating: (1) that any defect was cured by actual knowledge; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. The Federal Circuit disagreed with the Court of Appeals for Veterans Claims’ precedent deeming certain elements of the required notice more substantial than others. The court reasoned that allowing the VA to remedy the errors with post-decisional notices cannot satisfy the specific notification duties imposed by Congress on the VA, and presuming no prejudice does just that. Finding that the interpretation of the Court of Appeals for Veteran Claims conflicted with the uniquely pro-claimant system constructed by Congress in the VCAA, the Federal Circuit held all types of notice errors would be presumed prejudicial.

The Supreme Court concluded that the veterans will bear the burden of demonstrating that the VA’s errors made a substantive difference on the outcome of their claims cases. Justice Souter filed a dissenting opinion that was joined by Justices Stevens and Ginsburg. The dissent argued that the framework established by the Federal Circuit - which presumes that a notice error was prejudicial unless the claimant has actual knowledge that cures the defect or is ineligible for benefits as a matter of law - provides the VA with an incentive to perform its obligation to claimants.

Regarding this case, the Court found that despite the changes in the notice law, section 5103(a) still requires the VA for increased ratings claims to notify the veteran that they should provide or ask the VA to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the veteran’s employment. A simple notice advising a veteran to submit evidence that his condition has worsened is not sufficient.

After finding a notice error, the Court considered whether it was prejudicial to the veteran. The Court attempted to clarify who has the burden of showing prejudice or non-prejudice. The court said the “burden shifting only occurs when a notice is wholly defective as to a key element needed to substantiate a claim for benefits”. Id. at *14. The Court said that in such a situation, “the absence of evidence on the key element will result in denial of the claim [and] the natural effect is that the claimant is deprived of a meaningful opportunity to participate in the processing of his claim.” Id. at *15. In these circumstances, the VA has the burden of showing the veteran was not prejudiced.

However, in a claim for increased benefits, the claim can be shown by evidence of a worsened disability can depending on the Diagnostic Code can be shown by more objective evidence such as specific measurements or a test result, or more general evidence such as impact upon employment or daily life. The Court concluded that notice to provide evidence how a disability has worsened, without notice to provide evidence of its impact on employment is unlike the notice required in Mayfield I and thus the veteran must show the were prejudiced.

As applied, the veteran here was provided notice to provide evidence his disability had worsened. The Court said this was not he total absence of notice as to a key element. Furthermore, the scheduler rating for his condition does not explicitly take into account its impact on his employment. Therefore, “the inadequacy of this notice does not have a natural, adverse effect on the ability of [the veteran] to meaningfully participate in the processing of his claim and the essential fairness of the adjudication. Thus, the burden of demonstrating prejudice falls on [the veteran].” Id. at *17. The Court found no prejudice.

The Court also considered the possibility of differing notices from the VA. It noted that a second corrective notice might correct an initial notice but also found “The potential confusion generated by differing notices might be clarified or negated by actions taken in the subsequent processing of the claim, or otherwise ultimately shown by the record not to have confused the claimant. In sum, simply because subsequent notice, good on its face, is provided to the claimant does not mean that the notice was adequate. Whether notice is confusing is a fact-specific determination based on the totality of the circumstances.” Id. at *12. This line seems to at once reject the VA’s frequent contention that a subsequent notice fixes everything while also potentially situating the burden on the veteran to show confusion.

The result is that winning an appeal on a VCAA error on a claim for an increased rating is going to become more difficult. Additionally, veterans may not get the tailored notice they have gotten in the past. Thus, it will be imperative that they know they should provide evidence of the impact of a worsened condition on employability and daily life.

Decided by C.J. Kasold, and Judges Greene, and Hagel.

Simmons: VCAA Refined

Simmons: VCAA Refined

The decision in Patricia D. Simmons v. Eric K. Shinkseki, Opinion Number 03-1731, decided September 28, 2010, involved the impact and reach of the U.S. Supreme Court’s decision in Shinseki v. Sanders, 129 S.Ct. 1696 (2009), which also included this case.

The Federal Circuit Court of Appeals had held that all types of VCAA (Veteran Claims Assistance Act of 2000) notice errors were presumed to be prejudicial and that the Secretary had the burden of proving the notice error was not prejudicial. This was a change from the Court of Appeals for Veteran Claims earlier rulings that the VCAA can be divided into four elements: (1) notice of what information or evidence is necessary to substantiate the claim; (2) notice of what subset of the necessary information or evidence, if any, that the claimant is to provide; (3) notice of what subset of the necessary information or evidence, if any, that the VA will attempt to obtain; and (4) a general notification that the claimant may submit any other evidence that he has that may be relevant to the claim. In Mayfield v. Nicholson (2005), the Court of Appeals for Veteran Claims had held that although the first type of notice error was presumed prejudicial, the claimant was responsible for proving prejudice from the other types of notice errors.

On appeal, the Federal Circuit reversed. Reasoning that the VCAA was intended to be particularly pro-claimant and therefore obligated the VA to assist veterans claiming benefits, it held that all VCAA-notice errors should be presumed prejudicial, requiring reversal unless the VA can show that the error did not affect the essential fairness of the adjudication. The VA can show this by demonstrating: (1) that any defect was cured by actual knowledge; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. The Federal Circuit disagreed with the Court of Appeals for Veterans Claims’ precedent deeming certain elements of the required notice more substantial than others. The court reasoned that allowing the VA to remedy the errors with post-decisional notices cannot satisfy the specific notification duties imposed by Congress on the VA, and presuming no prejudice does just that. Finding that the interpretation of the Court of Appeals for Veteran Claims conflicted with the uniquely pro-claimant system constructed by Congress in the VCAA, the Federal Circuit held all types of notice errors would be presumed prejudicial.

The Supreme Court concluded that the veterans will bear the burden of demonstrating that the VA’s errors made a substantive difference on the outcome of their claims cases. Justice Souter filed a dissenting opinion that was joined by Justices Stevens and Ginsburg. The dissent argued that the framework established by the Federal Circuit - which presumes that a notice error was prejudicial unless the claimant has actual knowledge that cures the defect or is ineligible for benefits as a matter of law - provides the VA with an incentive to perform its obligation to claimants.

Regarding Simmons, the Supreme Court found contradictory evidence as to the prejudicial effect of the Type 1 (notice of what information or evidence is necessary to substantiate the claim) VCAA notice error and remanded the case and requested the Court of Appeals for Veteran Claims to decide whether reconsideration was necessary.

The Court then essentially sidestepped the issue by finding a right ear disability issue was not before the Court because while the VA had appealed a portion of the decision to the Federal Circuit, it had not actually appealed the remand for the claim of service connection for the right ear disability. A secondary issue on left ear disability was also remanded as so intertwined with the right ear disability issue as being properly handled together.

The Court concluded by saying that it need not decide whether Mayfield remains good law and that in light of years of appeals the veteran “should be well aware … what evidence is required to substantiate her claim; no additional VCAA notice is required.”

Decided by C.J. Kasold, and Judges Moorman, and Davis.

Hornick: Do Section 1159 Protections Apply to Section 1151 Benefits?

Hornick: Does Section 1159 Apply to Section 1151 Benefits?

The decision in David L. Hornick v. Eric K. Shinkseki, Opinion Number 08-3221, decided August 20, 2010, involved Section 1151 compensation benefits and the application of Section 1159 when the VA seeks to sever the award.

Section 1151 offer benefits to veterans who suffer an injury (or aggravation of injury) as the result of hospitalization, and medical or surgical treatment at the VA. In 1991, the veteran in this case was sitting at the VA Medical Center when the bench he was sitting on broke which caused a low-back injury. In 1997, the veteran was awarded a 100% award for the low-back injury effective September 1994. In 2005, the RO proposed to sever the award based on clear and unmistakable error (CUE). The VA found the veteran was sitting outside the VA dental clinic when he was injured and that this did not fall within the requirement of an “examination or hospital care or treatment”.

The Board considered the application of section 1159 which states that “service connection for any disability … which has been in force for ten or more years shall not be severed … except upon a showing that the original grant of service connection was based on fraud.” But, the Board relied on General Counsel Precedent Opinion 13-96, which stated section 1159 protections did not extend to benefits under section 1151.

The Court considered the question of whether section 1159 protections extended to section 1151 benefits and determined based on a close reading of the law and regulations that “[n]othing in these statements indicates that the text of the statute as originally introduced, which suggests that the purpose of the statute was to protect the payment of compensation that veterans had come to rely upon, was revised to exclude beneficiaries of section 1151 compensation from the protection of section 1159.” Id. at *9.

This case is important for anyone who recieved 1151 benefits for 10 years and was then severed without a finding of fraud. It is highly likely that some veterans have a claim based on wrongfully severed of 1151 benefits.

Decided by Judges Greene, Hagel, and Moorman.

The Limitations of Active Duty for Training

Smith: Is Training Active Duty

The decision in Valerie Y. Smith v. Eric K. Shinkseki, Opinion Number 08-1667, decided August 17, 2010, involved the presumptions of sound condition, service connection and aggravation.

The veteran was seeking service connection for meningioma and secondary service connection for hearing loss and gum infections. The veteran had joined the Army National Guard in December 1981 and while receiving her initial training from February to July 1982 was on active duty. Her active duty service extended for 180 days which qualified the veteran as a veteran for the purposes of VA benefits. She continued in the National Guard until 2003 and had active duty training in June and July 1999, August and September 2000 and June 2002.

In September 1999, the veteran complained to a private physician of headaches which turned out to be meningioma (a tumor on the membranes surrounding the spinal cord and brain). A C&P examination noted a history of headaches stretching back to 1987 and stated a belief the headaches were an early symptom of the tumor. The Regional Office and Board denied a service connection saying there was no competent medical evidence supporting the contention that the meningioma was related to her active service. The Board noted no medical opinion stated the symptoms began during a period of active duty for training.

The Court identified the essential question as whether a veteran who is a veteran by virtue of a period of active duty service but whose claim is based on a later period of active duty for training, is entitled to the presumptions of sound condition, service connection and aggravation generally afforded to veterans whose claims are based on periods of active duty.

In order to reach a decision, the Court parsed the language of 38 U.S.C. section 1111, which states in part,

every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.

The Court notes the statute provides that the presumptions of soundness applies when a veteran has been “examined, accepted, and enrolled for service”. “Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based—here, the period of active duty for training.” Id. at *6. The Court reasoned, “In the absence of such an examination, there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based.” Id. at *6. The Court no record of such an examination or assertion by the veteran that such an examination took place and that without such, the presumption of soundness does not apply.

The Court then specifically considered the presumption of service connection, which states a veteran is entitled to a presumption of service connection for a chronic disease which manifests to a degree of 10 percent or more within one year from the date of separation from service. The Court found “a claimant whose claim is based on a period of active duty for training can never be entitled to the presumption of service connection. By definition, the presumption of service connection applies where there is no evidence that a condition begin in or was aggravated during the relevant period of service. By contrast, for a claimant whose claim is based on a period of active duty for training to establish entitlement to benefits, there must be some evidence that his or her condition was ‘incurred or aggravated’ during the relevant period of service. 38 U.S.C. § 101(24)(B). These circumstances are necessarily mutually exclusive—it is not possible for there to be both no evidence and some evidence of in-service incurrence of a condition.” Id. at *8.

The Court adopted a similar argument related to the presumption of aggravation and determined that “active military, naval, or air service” does not include active duty for the purposes of training when you are in the National Guard. Id. at *9-*10. The Court relied on 38 U.S.C. § 101(24) which distinguishes between active duty and active duty for training “during which the individual concerned was disabled or died from a disease or injury or aggravated in the line of duty.” Id. at *10. Thus, active duty for training requires evidence that a preexisting condition be aggravated in the line of duty (which the Court further elucidated as that caused by the period of active duty for training).

Regarding the presumption of soundness, I understand and appreciate the Court’s argument that the statute requires something more than just active duty but an examination, acceptance and enrollment into active duty but wonder if a fuller factual background could reveal some arguments that status in the National Guard combined with entering active duty for training triggers the examination, acceptance and enrollment requirements. As to the presumption of service-connection, the Court seems to ignore the practical fact that evidence can exist to support a claim but the presumption still apply. As to the presumption of aggravation I think they over extend their reasoning.

In short, this decision represents a potentially serious erosion of protection for those service in active duty for the purposes of training. I understand the Court’s desire to place limits on the reach of benefits, especially based on the facts of this case. However, I am also concerned that the facts of this case and the law it created could have negative repercussions for many who are absolutely deserving of service connection.

Decided by Judges Hagel, Lance, and Davis.