Law Update

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.

Federal Circuit Court of Appeals

1. Menegassi v. Shinseki, 638 F.3d 1379 (2011) (For a PTSD claim based upon an alleged personal assault, the veteran has more options to satisfy the corroboration requirement of an alleged in-service stressor. In Menegassi, the Federal Circuit held that an examination by a mental health professional (even one performed many years after the alleged assault) can be used to satisfy the corroboration of stressor requirement).
2. Sickels v. Shinseki, 643 F.3d 1362 (2011) (Sickels holds that a claimant must challenge the qualifications of a VA examiner at the Agency level if he wishes to argue the same before the Veterans Court. Absent an objection at the Agency level, the Federal Circuit reasoned, the VA is entitled to rely upon the presumption of regularity of its VA examiners).
   1. Note: Sickels requires claimant representatives to be attentive to VA examinations performed by non-medical doctors, or even by physicians who are not specialists in an area requiring a specialty. For example, if a VA claimant undergoes a psychiatric examination, the report should reflect that the examiner is a psychiatrist or psychologist. If not, the representative should submit a written request to the VA for the examiner’s curriculum vitae or for some other documentation reflecting the examiner’s education, experience and training in mental health care.
3. Smith v. Shinseki, 647 F.3d 1380 (2011) (Smith holds that, for TDIU claims, the VA has no duty to obtain a labor market survey, vocational report or similar document to make the determination of whether a veteran is incapable of engaging in substantial gainful employment. However, the Federal Circuit noted that the VA retains the discretion to obtain such evidence).
4. Rivera v. Shinseki, 654 F.3d 1377 (2011) (Rivera affirms the well-established rule that the VA must read all claimant submissions sympathetically).
5. Bond v. Shinseki, 659 F.3d 1362 (2011) (Bond holds that 38 C.F.R. § 3.156(b) requires the VA to decide whether additional evidence, (received after a rating decision but before the expiration of the appeal period), constitutes new and material. If the regional office fails to make this determination, the claim remains pending).
   1. Note: The RO’s failure to make the determination whether the receipt of additional evidence constitutes new and material evidence, thus rendering the claim pending, has important implications for the effective date.

Court of Appeals for Veterans Claims

1. 1.  Mayhue v. Shinseki, 24 Vet.App. 273 (2011) (Mayhue clarifies two important principles: 1) To verify alleged stressors in PTSD claims, the VA must undertake its duty to assist. For example, the VA frequently asks the veteran to provide details of the claimed in-service stressors within a three-month period; Mayhue requires the VA to look at the claims file to see if this information already exists in the veteran’s claims file rather place the burden on the veteran to recall 40-year old events relating to the Vietnam Conflict, and 2) if a veteran requests a TDIU rating or submits evidence of unemployability, while the underlying claim is pending, the VA must consider all the evidence dating back to the filing of the underlying claim in assigning an effective date for a TDIU rating); see also Shipley v. Shinseki, 24 Vet.App. 458 (2011).
      1. Note: Be on the look out for the potential applicability of 38 C.F.R. § 3.156(c) which provides that if the VA receives or associates with the claims file relevant service department records at any time after the VA first decides the claim, the VA will reconsider the claim, including the issue of awarding an effective date back to filing of the original claim).

1. 1. Savage v. Shinseki, 24 Vet.App. 259 (2011) (Savage holds that, in some circumstances, the VA has a duty to seek clarification of a medical opinion of a private physician, not just that of a VA physician).

1. 1. Locklear v. Shinseki, 24 Vet.App. 311 (2011) (Locklear discussed the implicit denial rule, which states that when a RO or Board decision denies a specific claim it also implicitly denies all related claims, even though the related claims are not mentioned in the decision. The rationale for this rule is that when one claim has been explicitly denied it is reasonable to assume that the claimant has sufficient notice that related claims are denied as well. For example, when a decision denies a rating less than 100% disability under the schedule, this decision also gives notice of an implicit denial of a TDIU claim. However, in Locklear, the Board bifurcated the TDIU claim from the underlying claim for increased rating for psychiatric disability. Thus, the RO’s denial of an increased rating for psychiatric disability did not give sufficient notice of the implicit denial of the TDIU claim).
   2. Ervin v. Shinseki, 24 Vet.App. 318 (2011) (Ervin holds that the amended version of 38 C.F.R. § 3.304(f)(3)(2010) is retroactive. This amendment provides, in certain circumstances, that a veteran’s lay statement alone may satisfy the occurrence of the in-service stressor requirement for PTSD claims. The measure now states:
      1. [i]f a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, “fear of hostile military or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.

1. 1. Buie v. Shinseki, 24 Vet.App. 242 (2011) (Buie holds that the first requirement of the special monthly compensation statute, 38 U.S.C. § 1114(s) – “a service-connected disability rated as total” – cannot be satisfied by a TDIU rating involving two or more disabilities. The TDIU rating must be based upon a single disability).

1. 1. Kahana v. Shinseki, 24 Vet.App. 428 (2011) (Kahana holds that the Board must make medical determinations based upon independent medical evidence as required by Colvin v. Derwinski, 1 Vet.App. 171 (1991). This principle comes into play when the Board makes a so-called credibility determination of a veteran’s allegation of an in-service injury. In Kahana, the veteran alleged injuring his right knee in-service. In rejecting the veteran’s assertion, the Board reasoned that the veteran’s claimed right knee injury would normally have required treatment and thus should appear in his service medical records. The Court ruled that the question of whether the veteran’s injury would normally require treatment at the time of its occurrence was a medical question, requiring the Board to obtain or cite medical evidence to support its finding).

1. 1. DeLisio v. Shinseki, 25 Vet.App. 45 (2011) (DeLisio holds that secondary disabilities (i.e., disabilities which are caused by the underlying disability for which a veteran has filed a claim for benefits) sometimes may be encompassed in the underlying claim, even though a separate claim has not been filed for the secondary disabilities. The Court decided that if the VA obtains information suggesting a causal relationship between the underlying and secondary disabilities prior to adjudicating the underlying claim, the secondary disability is deemed reasonably encompassed in the underlying claim).

1. Bove et al. v. Shinseki, 25 Vet.App. ___ (2011) (Bove holds that in light of the Supreme Court decision Henderson v. Shinseki, 113 S.Ct. 1197 (2011) the 120-day filing period for notices of appeal to the Veterans Court is subject to equitable tolling. Therefore, an appellant may raise mental or physical incompetence as a basis to toll a late filing of an NOA).

U.S. Supreme Court Case

General Counsel’s Published Opinion

(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.

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.

Regulations

1. 1. 38 C.F.R. § 3.309(e) (This regulation has been amended to require the VA to readjudicate previously denied claims for Ischemic Heart Disease (otherwise referred to as coronary artery disease) Parkinson’s Disease and B-Cell Leukemia (including Hairy Cell Leukemia) PD, filed by Nehmer class members (Vietnam Veterans and their survivors) and provide retroactive benefits pursuant to 38 C.F.R § 3.816. This requirement involves claims filed or denied from September 25, 1985, to August 31, 2010, the date VA published the final regulation establishing a presumption of service connection for the foregoing diseases.).

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).