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 Law
Update & Practice
The Veterans Law Group
(VLG) introduces the
Law Update as a permanent
section to its website. The Law Update is designed to cover some
of the major changes in veterans’ disability law since 2003. For
the most part, this section is intended for veterans service
officers (VSOs), who represent disabled veterans or their
survivors/dependents before the Regional Offices and the Board of
Veterans’ Appeals. The Law Update
offers a brief abstract of the new case, statute, regulation or
General Counsel Opinion, with a practice note on each.
The
Law Update does not cover all
of the recent changes in veterans’ disability law. Indeed, it
purposefully limits its discussion to those legal developments,
which VLG believes are the
most important to VSOs in representing their clients. Further,
not all aspects of a new case or statute are discussed; rather,
only those part(s) which are particularly relevant to the general
representation of disabled veterans and their
survivors/dependents.
VLG
advises that representatives should not rely upon the Law Update
as a complete guide for representing their clients, but should
consider it as one source to keep current on some of the changes
in veterans’ disability law.
A.
FEDERAL CIRCUIT COURT OF
APPEALS
1. Disabled American Veterans v. Sec. of Veterans Affairs,
327 F.3d 1339 (Fed.Cir. 2003) (The Federal Circuit held that 38
C.F.R. § 19.9(a)(2) was invalid. § 19.9(a)(2) permitted the BVA
to obtain evidence and adjudicate an issue not previously
considered by the regional office.).
Practice Note: To comply with the
DAV case, the Board has recently created a separate
department called the Appellate Management Team. It performs
many of the same functions of a regional office, setting up
medical examinations and developing other types of evidence.
2.
Paralyzed Veterans of America
v. Sec. of Veterans Affairs, 345 F.3d
1334 (Fed.Cir. 2003) (The Federal Circuit decided that 38 C.F.R. §
3.159(b)(1) is invalid. § 3.159(b)(1) implemented the VA’s duty
to notify claimants of necessary information and evidence pursuant
to 38 U.S.C. § 5103. Under § 5103 and § 3.159(b)(1), the claimant
is generally given one year from the date of the notice in which
to submit evidence. However, § 3.159(b)(1) also permitted the VA
to adjudicate the claim before the one-year period if the claimant
had not responded to the notice within thirty days. In light of
these conflicting time frames, the Federal Circuit held that , §
3.159(b)(1) was a valid implementation of the statute.)
Practice Note: Many of the
regional offices may not be aware of this holding. Be sure to
keep an eye on any VA notices pursuant to § 5103 which
restrict the veteran’s time frame to submit evidence one-year
following the notice.
3. Szemraj v. Principi, 357 F.3d 1370 (Fed.Cir.
2004); Moody v. Principi, 360 F.3d 1306 (Fed.Cir. 2004) (In
both cases, the Federal Circuit decided that the VA must give a
liberal reading to all pro se pleadings submitted by veterans.)
Practice Note: Szemraj and
Moody are two decisions with great potential. For
years now, the CAVC cases have undermined the concept that a
veteran’s pleading should be sympathetically read, and that
the VA should consider all potential claims raised by the
record. We all know that veterans are not experts in drafting
pleadings, nor should we expect them to be.
4.
Barrett v. Principi,
363 F.3d 1316 (Fed.Cir. 2004) (The Federal Circuit held that
mental incapacity could be a basis to toll the 120-day time period
for filing a Notice of Appeal at the CAVC following an adverse BVA
decision. The Court stated that the veteran must establish that
his psychological disability made him incapable of rational
thought or deliberate decision making, or rendered him unable to
function in society.).
Practice Note: Barrett is
a very important case. Barrett stands for the broad
proposition that any time period for filing a written
submission (e.g. one-year period for filing a Notice of
Disagreement) can be tolled or extended based upon a
sufficient showing of the veteran’s psychological disability.
B.
COURT
OF APPEALS FOR VETERANS CLAIMS
1.
Brambley v.
Principi, 17 Vet.App. 20, 23-25 (2003) (CAVC clarifies that 38
C.F.R. § 3.321(b)(1) obligates the VA to consider an
extra-schedular rating as part of a claim for an
increased-evaluation for service-connected disability. As with
any disability claim, VA must ensure that an adjudication of a
claim for an extra-schedular rating is based upon a fully
developed medical record; specifically here, a complete picture of
the veteran’s service-connected disabilities and their effect on
his employment.).
Practice Note: An extra-schedular
theory for a higher disability rating is often overlooked. If
the claims file shows that the veteran’s disability(ies) is
preventing, or substantially interfering with, his or her
ability to work, then the veteran’s representative should
press for a higher rating based upon a theory of an
extra-schedular disability rating. Remember that a theory of
total disability rating due to a veteran’s unemployability
based on an extra-schedular rating is available to a veteran,
even though he or she might not meet the percentage disability
requirements for a traditional TDIU claim. See Bowling v.
Principi, 15 Vet.App. 1, 6 (2001); 38 C.F.R. § 4.16(b).
2.
Davis v. Principi,
17 Vet.App. 54, 57 (2003) (CAVC vacated Board decision denying the
claim for service-connected substance abuse. In that case, the
veteran alleged that his substance abuse was caused by the VA’s
in-service methadone treatment. The Court noted that, while
primary substance abuse can never be service-related, a theory
of secondary service-connection can be a valid basis for
finding service-related substance abuse.).
Practice Note:
Davis illustrates an
important principle of secondary service connection. Many
disabilities, including physical and psychological
disabilities, which do not appear to be service-related, may
be service-connected on a secondary basis. For example, if a
veteran has service-connected leg disability, which, over
time, causes a back disability, the back disability can be
found service-related on a secondary theory.
3.
Moran v. Principi, 17 Vet.App. 149, 154
(2003) (CAVC vacates Board decision for its failure to consider
the veteran’s allegations of combat as a basis for corroborating
an alleged stressor for a PTSD claim.)
Practice Note: PTSD claims, in
general, require: 1) a current diagnosis of PTSD, 2) medical
evidence of a nexus between the claimed stressor and the PTSD
condition, and 3) credible supporting evidence that the alleged
in-service stressor occurred. As to the third requirement, a
determination of combat status gives rise to a nearly conclusive
presumption that the in-service stressor occurred. Often
combat status is determined by the veteran’s medals or
decorations, but, as Moran points out, a veteran’s
statements can also be a basis to find combat status.
4.
Jeffcoat v. Principi, 17 Vet.App. 213, 219 (2003) (CAVC
vacates Board decision in part because of the VA’s failure to
comply with the previous Board remand instructions.).
Practice Note: In Stegall v.
West, 11 Vet.App. 268, 271 (1998), the CAVC set forth a
very important proposition. The Court held that a veteran has
an absolute right to compliance with the instructions of any
previous remand from the Board or the Court. Thus, a
veteran’s representative should carefully look through a
veteran’s claims file to see if there are any previous BVA or
Court remand orders. If so, look carefully at the remand
instructions, (e.g., instructions to obtain another medical
examination, to obtain military or private medical records or
documents, etc…), and make sure the VA complies with these
instructions.).
5.
Pelegrini v. Principi, 18 Vet.App. 112 (2004) (CAVC elaborated
on the new notice requirements under
38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). These sections
together require, among other things, that the VA notify the
veteran: 1) what evidence is necessary to substantiate his claim,
2) who will be responsible for obtaining this evidence, and 3) to
submit any evidence in his possession that pertains to the claim.
In Pelegrini, the Court held that the VA was obligated to
provide this notice prior to an initial adverse decision by the
Regional Office’s adjudicating officer.).
Practice Note: Pelegrini
is an important case, as it takes the VCAA notice requirement
one step further. Now, the VA must provide notice before the
ALJ issues the first rating decision, denying the veteran’s
claim.
6.
Pelegrini v. Principi,
3 Vet.App. 269, 272 (1992), where, in discussing the requirements
for a TDIU rating in a case where a veteran had both service-connected
and nonservice-connected disabilities, the Court of Appeals for
Veterans Claims stated: Under 38 C.F.R. § 4.16(a), a determination
concerning unemployability indeed must be made on the basis of
service-connected disabilities alone; “nonservice-connected disabilities...will
be disregarded.” Even if, as it appears, the BVA determined
that appellant’s unemployability was a result of his age and nonservice-connected
[conditions], its task was not finished. The BVA still was required
to decide, without regard to the nonservice-connected disabilities
or his age, whether appellant’s service-connected disabilities
are sufficiently incapacitating as to render him unemployable.
6.
Bowling v. Principi,
15 Vet.App. 1, 5-6 (2001), the Court of Appeals for Veterans Claims made clear that so long as there is evidence of unemployability in the record, a claimant may be entitled to TDIU award under 38 C.F.R. § 4.16(b), even though the claimant does not meet the percentage disability requirements under 38 C.F.R. § 4.16(a).
C.
GENERAL COUNSEL’S PUBLISHED OPINIONS
(From time to time, the General Counsel’s Office of the Veterans
Administration publishes opinions on the interpretation or
application of statutes or regulations. These opinions are
considered binding precedent with respect to all claims pending
before the regional offices and the Board of Veterans’ Appeals.)
1.
VAOPGCPREC
6-2003 (This opinion addresses whether a
veteran’s tobacco-related disability or death may be service
connected secondary to a service-connected mental disability,
which caused the veteran to use tobacco. 38 U.S.C. § 1103(a)
prohibits a finding of service connection of a disability or death
resulting from the veteran’s use of tobacco during his service.
The General Counsel opinion, however, clarifies that service
connection is permissible if the veteran’s disability or death is
the result of his post-service use of tobacco, which is
caused by a service-connected psychological disability.)
Practice Note: Representatives
should keep this General Counsel opinion in mind when handling
PTSD and other mental disability claims. Many emotional
disorders and disabilities can lead to the veteran’s chronic
tobacco use after service in much the same way that emotional
disabilities can lead to veteran’s “self-medication” (drug or
alcohol abuse) following service. Of course, there must be
medical evidence in the record supporting this secondary
theory of service-connected disability or death.)
2.
VAOPCGPREC
3-2003 (This opinion discusses whether a
claimant is required to show that the disease or injury increased
in severity during service before the presumption of
aggravation applies. 38 U.S.C. § 1111 provides that a veteran
will be presumed in sound condition if his entrance examination
does not note any relevant defects, diseases or conditions. The
statute further provides that this presumption may be rebutted by
clear and unmistakable evidence of both 1) that the condition
existed prior to service, and 2) that it was not aggravated by
service. However, 38 C.F.R. § 3.306(b) imposes an additional
requirement on the claimant in order to receive the presumption in
cases of aggravation. § 3.306(b) requires the claimant to show
that the pre-existing condition increased in severity during
service. The General Counsel opinion determines that this
part of the regulation is invalid, as it is inconsistent with 38
U.S.C. § 1111.)
Practice Note: VAOPCGPREC 3-2003
is a new General Counsel opinion, of which many of the
regional offices may not be aware. Therefore, be on the look
out for claims which have been denied on the basis that there
was no evidence of increased disability during service.
This showing is no longer required to obtain the favorable
presumption.
D.
STATUTES
1.
Amendment to 38 U.S.C. §
1116(a)(F)
(This amendment eliminates
the requirement that respiratory cancer (cancers of the lung,
bronchus, larynx, trachea) becomes manifest within 30 years of the
veteran’s departure from Vietnam to qualify for the presumption
of service connection based on exposure to herbicides such as
Agent Orange. This amendment also broadens the presumption of
exposure to herbicides to include all Vietnam veterans, not
just those who have a presumptively service-connected disease).
Practice Note: This amendment
covers two different aspects of a toxic exposure claim.
First, a veteran must establish that his exposure to the toxin
must have occurred in service. Second, he must prove that his
current disease or disability is related to the in-service
toxic exposure. With respect to some claims, such as those
outlined in listed in § 1116(a)(F), the VA will presume
in-service exposure and/or service connection.
2.
Amendment to 38 U.S.C. § 5121(a)
(VA law makes clear that a veterans’ pending disability claim
terminates upon the veteran’s death. However, a survivor of the
veteran (such as a surviving spouse, child, or parent) may file a
so-called “accrued benefits” claims. In this action, the survivor
continues the veteran’s disability claim under the survivor’s
name, typically arguing the same theories and relying upon the
same evidence. Until recently, 38 U.S.C. § 5121(a) provided a
two-year maximum cap on the amount of accrued benefits which could
be recovered. The recent amendment to § 5121(a) removes this
two-year limitation. Now, a survivor can receive the full measure
of retroactive, unpaid accrued benefits, if he or she prevails in
the survivor claim.
Practice Note: Be advised that
the amendment was not made retroactive, and thus only applies
to survivor claims in which the veteran died on or after
December 16, 2003, the date of the enactment of the
amendment.
E.
REGULATIONS
1.
Amendment to 38 C.F.R. § 4.71a
(Diagnostic Codes 5235-5243) (These
diagnostic codes set forth the criteria for rating spinal
disabilities. Prior to the amendment, the applicable diagnostic
codes, 5285-5295, were fairly general and unrestrictive. In
particular, diagnostic code 5293 permitted disability ratings of
up to 60%, without having to show specific medical findings of
motion and functional loss or physical incapacity. The new
diagnostic codes have raised the bar, requiring specific and
measurable medical findings of motion loss and/or incapacitating
episodes.)
Practice Note: The new diagnostic
codes were not made retroactive, and therefore claims pending
during their promulgation should not be governed by these more
restrictive codes. Separately, the representative should
always keep in mind the TDIU theory for back claims. More
often than not, severe back disabilities prevent, or at least
seriously impair, the veteran’s ability to work. If a veteran
cannot work due to his back problems, then regardless of the
veteran’s scheduler disability rating, the representative
should press for a total disability rating based upon
unemployability.).
2.
38 C.F.R. § 20.900
(The amendment provides that a claim sitting at the Board may be
advanced on the docket for adjudication due to the advanced age of
the veteran.).
Practice Note: This is an
important amendment to keep in mind. A veteran’s claim dies
with the veteran. Therefore it is important to move his or
her case along as quickly as possible. But the representative
must make a written request under § 20.900 to expedite the
claim. The Board will not do it on its own initiative.
3.
38 U.S.C
4.16(b) provides for an award on TDIU, even if a claimant does not meet the 60% disability requirements § 4.16(a):
It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a).
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