ABK will present on “How To Get Your Client’s Condition Service Connected.”
LINK TO BROCHURE
LINK TO NOVA CONFERENCE SITE: https://www.vetadvocates.org/events/2019-spring-conference
SUMMARY: Mr. Mathews served in the U.S. Navy from 1966 to 1970, including combat service in Vietnam. In 2002, he was treated for a neck “lesion” that was subsequently the subject of various diagnoses, including metastatic carcinoma and melanoma, among others. Two private physicians stated that this condition “could be” related to his exposure to Agent Orange. In June 2003, he filed a claim for “neck cancer.” The RO denied because the evidence did not show that he had a type of cancer on VA’s presumptive list. He appealed the denial, and submitted additional evidence regarding his various diagnoses. In 2004, he appealed to the Board.
In 2007, following a hearing, the Board remanded his appeal, and directed the Appeals Management Center to have his claims file and a tissue sample reviewed by a “panel of three oncologists” who could provide “consensus answers” to the complicated medical questions of the case.
The AMC was unable to find a panel of three oncologists, but was apparently able to have the Board’s remand order “amended” so that they could obtain an opinion by one oncologist. A private physician from the El Paso Cancer Treatment Center provided a negative nexus opinion and the AMC continued its denial in a Supplemental Statement of the Case (SSOC).
In December 2011, the Board remanded again because VA had not obtained authorization to release a tissue sample and because the medical opinion was inadequate. In this remand order, the Board determined that Mr. Mathews was “not prejudiced” by having a medical opinion provided by only one oncologist, instead of three, because the oncologist was qualified to provide the opinion.
In 2013, VA obtained a new negative medical opinion from a registered nurse. Mr. Mathews challenged the adequacy of this opinion, and the Board remanded this appeal for a third time.
In January 2014, a VA staff physician in the hematology/oncology section provided a negative medical opinion. In June 2014, the Board remanded for a fourth time for an addendum opinion, which was provided the following October. The AMC continued the denial in yet another SSOC.
In January 2015, the Board issued the decision on appeal, finding that the AMC had substantially complied with its prior remand orders and continued to deny service connection.
On appeal to the Court, Mr. Mathews argued that the Board provided an inadequate explanation for its determination that the AMC had substantially complied with its prior remand order because the Board did not explain why an opinion from a panel of three oncologists was no longer needed. The Secretary argued that the Board was not required to address that question in the recent decision because it had explained in its December 2011 remand order that there was no prejudice to the veteran by having an opinion provided by only one oncologist. Mr. Mathews argued that “there is no legal authority that permits the Board to sub silentio incorporate its reasons or bases from a prior remand order into a later decision.” The Court agree with Mr. Mathews, noting that “[m]ore than nine years and three Board remands later, VA has still not obtained the ordered opinion from a three-oncologist panel, and the Board in its most recent decision did not explain why such an opinion was no longer necessary.”
Without an explanation from the Board, the Court found that it could not “discern the precise basis for the Board’s finding that the AMC had substantially complied with the May 2007 remand order,” and thus held that “the Board is not permitted to sub silentio incorporate its reasons or bases from a prior remand order into a later decision.”
To support this decision, the Court noted that “all of the Board’s findings in the non-final remand orders are insulated from judicial review because remand orders are not appealable to this Court.” The Court added that it has never stated that “findings in Board remand orders that are unfavorable to the appellant are final and binding,” emphasizing that such a conclusion “would be antithetical to the pro-claimant veterans benefits system.” The Court reiterated that the Board must “provide or reiterate reasons or bases for unfavorable findings made in prior remand orders – assuming those reasons or bases still apply, given that new evidence or argument may have been submitted in the interim . . . – so that they become part of a final Board decision and subject to appellate review.”
The Court further determined that the Board’s reasons-or-bases error in this case prejudiced the appellant because “it must be presumed that the Board in May 2007 determined that, due to the medical complexity of the issues involved, a medical opinion from a panel of three competent oncologists was required to decide the claim.” Because the Board did not explain how “having one competent oncologist assess the veteran’s tumor could satisfy the Board’s May 2007 remand” that called for a “consensus” on the issue by three competent oncologists, the Court found that the Board’s error was not harmless. The Court remanded for further development, if necessary, and readjudication.
SUMMARY: Mr. Hill had several periods of Reserve and National Guard duty from 1980 to 2002. He also had one period of active duty for training (ACDUTRA) from June 7 to 21, 1997. His service medical records (SMRs) and private records show psychiatric treatment prior to June 1997, and private records also show treatment for a back condition related to a 1994 work injury.
During his 1997 period of ACDUTRA, Mr. Hill’s unit was performing field exercises, when a tree he was standing next to was struck by lightning. He fell and sought medical treatment for knee and back pain. The National Guard investigation report of the lightning strike classified his knee injury as incurred in the line of duty, and his back pain as “in line of duty-[existed prior to service]-aggravation.” The investigator stated that “the force of being thrown to the ground may have aggravated [his back] condition.” The record contains evidence of Mr. Hill’s subsequent reports that his physical and psychiatric symptoms worsened after the lightning strike.
In 2002, he filed a claim for service-connected disability benefits for his back, knee, and memory loss. The Regional Office (RO) granted service connection for the right knee, but denied his back and memory loss claims. He did not appeal that decision and it became final.
In 2008, he attempted to reopen his claims for a back condition and memory loss with PTSD. The RO denied the PTSD claim and determined that new and material evidence had not been submitted to reopen the back claim. Mr. Hill appealed this decision, and submitted internet articles about the effects of lightning strikes. The RO issued a Statement of the Case, continuing to deny the PTSD claim and reaffirming that new and material evidence had not been submitted to reopen his back claim. Mr. Hill perfected his appeal with a VA Form 9 and requested a hearing. He testified that he had been thrown 25 feet as a result of the lightning strike and hurt his knee and back.
In April 2014, the Board determined that veteran status during his period of ACDUTRA had been established for these claims because of his service-connected knee disability. However, the Board determined that new and material evidence had not been submitted to reopen his back claim, rejecting his hearing testimony as “patently incredible.” The Board denied service connection for the psychiatric claim based on a 2010 C&P opinion.
On appeal, the Court addressed the issues of (1) whether the establishment of veteran status during a period of ACDUTRA for one condition extends to other conditions incurred during that period; (2) whether, once veteran status for a period of ACDUTRA is established, the veteran is entitled to the presumption of aggravation with respect to any additional pre-existing conditions; and (3) whether the presumption of aggravation requires an enlistment examination to determine the pre-service severity of a pre-existing condition claimed to have been aggravated during a period of ACDUTRA.
The Court first addressed the issue of “veteran status” and determined, based on the plain language of the relevant statutes, that “once an individual establishes that any disability was incurred during a period of ACDUTRA, he has established that the particular period of ACDUTRA constitutes ‘active, military, naval or air service.’” The Court thus held that “once a claimant has achieved veteran status for a single disability incurred or aggravated during a period of ACDUTRA, that status applies to all disabilities claimed to have been incurred or aggravated during that period of ACDUTRA.”
The Court further held that a veteran who has established veteran status for one condition during a period of ACDUTRA “is now a veteran for the purposes of all other claims based on that same period of ACDUTRA” and is thus entitled to the presumption of aggravation for different, pre-existing conditions that worsened during that period.
With respect to the enlistment examination requirement, the Court first noted that in order to benefit from the presumption of aggravation, the evidence must first show that a condition was “noted” on the veteran’s enlistment examination. The Secretary conceded in this case that ACDUTRA veterans are generally not provided with the same routine examinations as regular military personnel are – and that the record will likely not contain an enlistment examination noting a pre-existing condition for these veterans. To answer the question of whether the presumption of aggravation requires an enlistment examination, the Court again looked to the statutory language, specifically 38 U.S.C. §§ 1111 and 1153.
The Court found that section 1153 “makes no reference whatsoever to an examination,” but that section 1111, the presumption of soundness statute, “makes explicit reference to an entrance examination.” In light of this, the Court determined that the statutory language was ambiguous. The Court then looked to VA’s implementing regulation, 38 C.F.R. § 3.306(a), but found that this “merely parrots section 1153” and that the Secretary’s interpretation was thus not due any deference. The Court concluded that, for the claimant who is already service connected for one condition incurred during a period of ACDUTRA and is attempting to establish service connection for a different, preexisting condition based on that same period, “no entrance examination is necessary where there is contemporaneous evidence of the baseline severity of the preexisting condition.” In other words, as long as the claimant submits evidence showing the severity of the pre-existing condition prior to the aggravation event during the period ofACDUTRA, as well as evidence of a permanent increase in disability during the period of ACDUTRA, that claimant can benefit from the statutory presumption of aggravation – even though there is no enlistment examination of record.
With respect to Mr. Hill’s back claim, the Court determined that the Board clearly erred in determining that his submissions and testimony were not new and material. Specifically, the Court found that one of the internet articles stated that a lightning strike might affect the musculoskeletal system – and that this article was “material to whether the lightning strike could have worsened the appellant’s preexisting back condition.” The Court also determined that the Board clearly erred in determining that Mr. Hill’s hearing testimony was “patently incredible,” finding that “the Board engaged in improper, pre-reopening weighing of the evidence, which is prohibited.” To support this, the Court cited Justus v. Principi, 3 Vet.App. 510, 513 (1992) (holding that, for purposes of reopening, “VA is required to presume the credibility of newly submitted evidence”). The Court directed the Board to reopen this issue on remand.
With respect to the psychiatric claim, the Court found that the Board provided an inadequate statement of reasons or bases for its reliance on a C&P examination as negative evidence – when that report appeared to include favorable findings. The Court directed the Board to obtain clarification or a new medical opinion for the psychiatric claim on remand.
SUMMARY: Mr. Warren was denied service connection for sleep apnea in April 2009, and he appealed. The RO continued its denial in Statement of the Case. The RO then received a statement that it treated as a VA Form 9, in which the veteran stated that he was withdrawing his request for review by a Decision Review Officer and instead requesting a Board hearing. The veteran’s representative also submitted a request for a Board hearing.
In April 2010, a VA employee subsequently called the veteran and noted in a “Report of General Information” that she spoke with him over the phone and that he wanted to withdraw his sleep apnea appeal. A few days later, a Report of General Information, completed by a different VA employee, stated that the veteran called to state that he wanted a Board hearing. A few days later, the RO certified his appeal to the Board.
Later that month, on May 28, 2010, Mr. Warren’s representative submitted additional evidence “in support of the pending claim” for service connection for sleep apnea. The RO treated this as a new claim, requiring “new and material evidence” to reopen. Mr. Warren then underwent a Compensation and Pension examination – and the examiner provided a favorable medical nexus opinion. The RO awarded service connection for sleep apnea – assigning May 28, 2010 as the effective date. This decision was not appealed.
In the June 2013, Mr. Warren was afforded a Board hearing in which the presiding Board member characterized the issues to include service connection for sleep apnea. The veteran’s representative stated that the April 2010 Report of General Information mischaracterized Mr. Warren’s request. He clarified that he did not state that he wanted to withdraw his appeal; rather, he wanted to withdraw it from DRO review and proceed directly to a Board hearing.
In its November 2014 decision, the Board stated that the appeal arose from the April 2009 denial of service connection for sleep apnea – but that the April 2010 Report of General Information was a proper withdrawal of that appeal. The Board thus found that May 28, 2010 was the appropriate effective date for the award of service connection for sleep apnea.
On appeal to the Veterans Court, Mr. Warren argued that the Board failed to apply the correct legal standard in finding that he withdrew his appeal. The Secretary did not address this argument – but instead asserted that the Board improperly adjudicated a “freestanding earlier effective date issue” and that the proper remedy was for the Court to vacate the Board’s decision and dismiss the appeal.
The Court noted that the Board’s rules regarding withdrawal of appeals states that only an appellant or his/her representative may withdraw an appeal and that “[e]xcept for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.” The Court added that a withdrawal “is only effective where withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” The Court noted that in Mr. Warren’s case, the alleged withdrawal was conducted over the phone and that there was “considerable evidence that Mr. Warren did not intend to withdraw his 2008 sleep apnea claim when he called VA in April 2010,” but that he simply meant to withdraw his request for DRO review. The Court thus reversed the Board’s determination that Mr. Warren had withdrawn his appeal.
As for the issue on appeal, the Court determined that there were two claim streams in this case – (1) the 2008 claim for service connection for sleep apnea that resulted in the April 2009 denial and (2) the May 2010 “claim” that the RO treated as a request to reopen, based on its belief that Mr. Warren had withdrawn his appeal of the April 2009 denial.
The Board characterized the first claim as one for an earlier effective date – but the Court found that the Board did not have jurisdiction over this “claim” because it had not been adjudicated by the RO. The issue that had been appealed to the Board was service connection for sleep apnea – not the effective date.
The Court determined that “because the veteran timely appealed the April 2009 RO decision denying the December 2008 claim, only a Board decision can resolve the December 2008 claim” – and that the September 2010 RO decision could not resolve this issue because “by virtue of his appeal, the Board, not the RO, had jurisdiction over it.”
In this respect, the Court agreed with the Secretary that the Board did not have jurisdiction over the effective date issue. The Board had jurisdiction over the appeal arising from the 2008 claim for service connection. The Court held that the Board clearly erred when it determined that Mr. Warren withdrew his appeal of the April 2009 decision and reversed that portion of the decision. The Court remanded the issue of service connection for sleep apnea – the merits of the December 2008 claim – to the Board, expressly directing it to consider the supporting evidence Mr. Warren submitted in May 2010.
Veterans Law Office of Amy B. Kretkowski exclusively represents veterans and their survivors in their VA appeals for service-connected disability compensation benefits, Dependency and Indemnity Compensation, and pension benefits.
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