Presentation on theme: "Board of Veterans’ Appeals Training The Road to Service Connection"— Presentation transcript:
1 Board of Veterans’ Appeals Training The Road to Service Connection
2 Key Themes √ √ √ √ √ √ √ √ √ √ √ √ There are basic eligibility requirements for VA disability benefitsThere are multiple elements that are required to establish entitlement to service connectionThere are multiple ways (i.e., theories of entitlement) to establish entitlement to service connection√√√√SCEstablished!√√√√√√√√Multiple theories of entitlementElementsBasic eligibility requirements
3 From Here to There? Qualifying service (basic eligibility) Current disability (element)In-service injury or disease or aggravation of such(element)Nexus between the current disability and the in- service disease or injury (element)
4 What is Qualifying Service? Claimant must be a “veteran” (or a dependent of a “veteran”)A “veteran” is a person with “active military service” and who was discharged “under conditions other than dishonorable.”“Active military service” includes:Active DutyActive Duty for Training (ACDUTRA)Inactive Duty for Training (INACDUTRA)Source to establish “active military service” = service department recordsVA is bound by service department findings“Veteran” = 38 U.S.C.A. § 101(2), 38 C.F.R. § 3.1(d).“Active military service” = 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6ACDUTRA + INACDUTRA = reservists + National GuardCharacter of Discharge = 38 U.S.C.A. § 105, 38 C.F.R. §§ 3.1, 3.12Willful Misconduct = 38 C.F.R. § 3.1, 3.301
5 1) Current Disability Competent evidence of a current disability ex: medical diagnosis by a variety of professionals, to include MDs, nurses, chiropractors, social workers, psychologists and others with specialized knowledge, education, experience or training to render them qualified to provide a diagnosisVA or private medical recordsLetters or statements by physiciansDisabilities capable of lay observation ~ if a disability is the type that can be observed by a lay person (ex: varicose veins, tinnitus), then a separate medical diagnosis may not be requiredA disability that resolves during the appeal period may still be service connectedMcClain v. Nicholson, 21 Vet. App. 319 (2007).
6 Not a Current Disability Pain without a diagnosed or identifiable underlying malady or condition does not constitute a disability, but it may be adequate to trigger the need for a VA examination.Congenital diseases, but not defects, are considered disabilities. A medical opinion may be required to determine whether a condition is properly classified as a congenital disease or defect.
7 1) Current Disability (contd.) VA’s duty to assist a Veteran by affording an opportunity for a VA examinationLow threshold to trigger this duty to assistMcLendon v. Nicholson, 20 Vet. App. 79, 81 (2006)(1) competent evidence of a current disability or persistent or recurrent symptoms of a disability(2) evidence establishing that an event, injury, or disease occurred in service(3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service
8 Issue: What Current Disability is the Veteran Claiming? Some claimants may not possess the necessary knowledge to accurately describe to VA what disease or injury is being claimedex: “I have a leg disorder”Does this mean arthritis? sciatica? rash?VA may thus have to determine the disability being claimedClemons v. Shinseki, 23 Vet. App. 1 (2009)VA should not limit review only to the diagnosis alleged by the claimantInstead, VA consideration should include all diagnoses which may reasonably be encompassed by several factors including: the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claimVA’s duty to fully and sympathetically develop a claim to its optimum and to determine all potential claims raised by the evidenceDuty to sympathetically develop a claim = Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004).
9 2) In-service Incurrence of a Disease or Injury Medical or lay evidence of an in-service event/injury/diseaseDocumented event or treatment in service recordsVeteran’s description of symptomsBuddy statements/statements from family membersLetters written during service describing the event/injury/diseaseNewspaper articlesMissing service records (1973 Fire at National Personnel Records Center in St. Louis)VA’s heightened duty to assist ~ VA must obtain unit records and research unit histories
10 In-service injury or disease May be reflected in a veteran’s service treatment records.Even if there is no medical evidence of a particular injury or disease in service, a veteran is competent to report such disease or injury and a determination needs to be made as to whether any such report is credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir ).
11 In-service injury or disease If a veteran engaged in combat, lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of an in-service disease or injury if such evidence is consistent with the circumstances, conditions, or hardships, of the veteran’s service.38 U.S.C.A. § 1154(b).
12 3) Nexus (“the link”)Connection between current disability and in-service incidentex: medical opinionCompeting Medical OpinionsVA must consider probative weight of opinionsKnowledge/expertiseWhether claims file was reviewedThoroughness of opinion/rationale
13 NexusThe nexus element is also satisfied if there is medical evidence or credible lay evidence of a continuity of symptomatology. Continuity of symptomatology is established if:(1) there is evidence that a condition was noted in service (need only be evidence of a symptom in service and does not require an actual diagnosis);(2) there is evidence of post-service continuity of the same symptomatology; and(3) there is medical or, in certain circumstances, lay evidence that the post-service symptomatology is related to the present disability.Be aware of the recent case Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir ) which limited continuity of symptomatology to diseases listed in §3.309(a).
14 Other “Roads” or Theories of Entitlement Aggravation of a Pre-Service (i.e., pre- existing) Disorder“Aggravation” means a permanent worsening beyond natural progressionMust be more than a temporary flare-up
15 Aggravation (contd.) KEY: “Noted” on service entry vs. NOT “Noted” If the condition was “noted” on service entry examination, then presumption of aggravation attaches ~if condition increased in severity during active service, then VA will consider it to have been aggravated by service (unless specific finding that the increase in disability was due to natural progress of disease)Service Entry Examination*Defective hearing on examination
16 See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) Aggravation (contd.)If the condition was NOT “noted” on service entry examination, then Veteran presumed to have been in sound condition upon entry ~If presumed sound on entry, then direct service connection may be establishedOnly way to rebut soundness presumption = VA must show by clear and unmistakable (i.e., undebatable) evidence BOTH that (1)the injury/disease existed before entry and (2)that it was not aggravated by service (HIGH Standard)See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004)Service Entry Examination*Normal hearing on examination
17 AggravationA pre-existing injury or disease is considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.
18 Other “Roads” or Theories of Entitlement PresumptionsDisability not diagnosed during active service, but it is presumed to be related to active service because it arose within a specified time period after dischargeLiberalizing rule ~ Congress has directed that certain diseases shall be presumed to be service connected (unless there is affirmative evidence that it is not related to service)Theory behind presumptions ~ idea that the designated disease that first manifested post-service probably had its beginnings during service because of the nature of that identified disease
19 Presumptions (contd).Presumptive Diseases (full list: 38 C.F.R )Chronic diseases = permanent diseases that may wax and wane but never go awayex: hypertension, diabetes mellitus, tuberculosisTropical diseasesex: cholera, malaria, yellow feverDiseases of Former POWsex: beriberi, cirrhosis, IBS, chronic dysenteryRadiogenic diseases ~ must have participated in a “radiation-risk activity”ex: leukemia, various cancersDiseases associated with Agent Orange Exposureex: chloracne, various cancersLou Gehrig’s Disease (see 38 C.F.R. § 3.118)
20 Presumptions (cont.)Diseases associated with exposure to mustard gas or Lewisite (38 C.F.R. § ).Undiagnosed illness/infectious diseases in “Persian Gulf veterans,” as that term is defined by regulation (38 C.F.R. § 3.317).Amyotrophic Lateral Sclerosis (38 C.F.R. § ).Tuberculosis disease (38 C.F.R. § 3.371).
21 Presumptions (contd.) Presumptive Periods Typically must manifest within 1-year of discharge (i.e., some chronic and tropical diseases)Some may manifest at any time after discharge (i.e., former POWs)NOTE : If a Veteran cannot establish service connection on a presumptive basis, s/he may still establish service connection under another theory!
22 Other “Roads” or Theories of Entitlement Secondary Service ConnectionA disability that is proximately due to or the result of an already service connected disabilityex: peripheral neuropathy secondary to service connected diabetes mellitusOr a disability that is aggravated (made worse) by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. §
23 Secondary Service Connection (contd.) Elements:An already service connected disabilityA second disorderMedical evidence of a nexus between the service connected disability and the creation of or aggravation of the second disorder
24 Secondary Service Connection For claims filed after October 10, 2006, aggravation by a service-connected disability is not conceded unless a baseline for the claimed disability can be established prior to any aggravation.38 C.F.R. § 3.310(b).
25 Other Matters Competency Medical evidence Lay evidence requires proper knowledge, skills or specialized trainingLay evidencemust have personal knowledge of matter derived from his/her own sensescompetent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge
26 Lay EvidenceWhat is lay evidence? – Any written or verbal evidence from someone who does not have expertise in a relevant profession, such as medical or legal training, or other specialized training or expertise.If the lay evidence relates to a matter that would require medical expertise, you need to assess whether the lay provider has any specialized training or expertise (such as being a doctor, nurse, etc.)Symptoms vs. Diagnoses - Veterans can generally report information as to symptoms experienced, but not diagnoses (unless he or she is a trained medical professional).If lay evidence relates to symptomatology, it almost always will be competent evidence as a lay person can report symptoms that he or she personally experiences, such as pain, limitation of motion, etc.For service connection cases, lay evidence may raise a potential continuity of symptomatology issue to address both in terms of deciding whether an examination or opinion must be provided or obtained, and in deciding the claim on the merits..Reasons or Bases: VA has a duty to consider all information of record including both lay and medical evidence. See 38 U.S.C. § 1154(a), 5107(b), 7104(a); 38 C.F.R. § 3.303(a), 3.304(b)(2), 3.307(b). VA also has a duty to address the weight to be given to the evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).Competent lay evidence is defined as any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.38 C.F.R. § 3.159(a)(2).
27 Lay Evidence is not competent to report: Lay Evidence is competent to report:CancersCause of DeathBronchial AsthmaMeniere’s DiseaseRheumatic FeverChondromalaciaDisk HerniationDiagnosis of any other medical condition that requires specialized training to diagnose.Asthma SymptomsTinnitusHeadaches, dizziness, etc.Pain in feet; Flat Feet (Pes Planus)Knee SymptomsDislocated Shoulder & Broken LegHip Disorder with Rotated FootVaricose VeinsPsychiatric Symptoms (Paranoid Schizophrenia)Fall Injury/TraumaSome Skin Disorders (such as a rash)Frostbite Residuals.Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (carcinomas); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (cause of death); Layno v. Brown, 6 Vet. App. 465, (1994) (bronchial asthma); Horowitz v. Brown, 5 Vet. App. 217, (1993); Connolly v. Derwinski, 1 Vet. App. 566, 567 (1991) (Meniere’s disease); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (rheumatic fever).Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991)(asthma symptoms); Layno v. Brown, 6 Vet. App. 465, (1994) (asthma symptoms); Charles v. Principi, 16 Vet. App 370, 374 (2002) (tinnitus); Horowitz v. Brown, 5 Vet. App. 217, (1993) (Meniere’s symptoms: dizziness, loss of balance, hearing trouble, stumbling and falling, tinnitus, nausea); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (painful feet/flat feet/pes planus); Clyburn v. West, 12 Vet. App. 296, 301 (1999) (knee symptoms); Jandreau v. Nicholson, 492 F.3d. 1372, 1377 (Fed. Cir. 2007) (Dislocated shoulder & broken leg); Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (Hip disorder with rotated foot); Barr v. Nicholson, 21 Vet. App. 303, (2007) (varicose veins); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (psychiatric symptoms (paranoid schizophrenia); Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Fall injury/trauma); McCartt v. West, 12 Vet. App. 164, 167 (1999); Some skin disorders (such as rash); Goss v. Brown, 9 Vet. App. 109, 113 (1996) (Frostbite residuals).Reminder: Please be cautious because, even though lay evidence may not be competent to diagnose a specific disease, it still may be competent to report symptoms of that disease. See Layno v. Brown, 6 Vet. App. 465, (1994) (bronchial asthma was not competent; however, testimony of symptoms of difficulty breathing is competent).“The beliefs of lay witnesses (including claimants) on issues of diagnosis and medical causation are not competent evidence in situations where those issues require medical expertise to resolve.” Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring). “The question of whether a particular medical issue is beyond the competence of a layperson—including both claimants and [VA adjudicators] must be determined on a case-by-case basis. Simply put, any given medical issue is either simple enough to be within the realm of common knowledge for lay claimants and adjudicators or complex enough to require an expert opinion.” Id. (citations omitted).
28 Other Matters (contd.) Credibility VA considers all statements made in the context of entire recordSome credibility factors:Internal consistency or lack thereofFacial plausibilityConsistency with other evidence submitted on behalf of the claimantDemeanor of witness (if hearing held)BiasCharacter
29 Other Matters (contd.)VA must consider the competency and credibility of lay evidence as it relates to all necessary elements and evidentiary hurdles in establishing a claim for benefits, to include:Current diagnosisNexusContinuity of symptomsOccurrence of an event in serviceCombat or other circumstances of service
31 Why Does BVA Remand? Change in Law or Regulation Inadequate or Incomplete DevelopmentTo consider evidence received in the 1st instanceDue Process problems
32 Where BVA Remands Go AMC – Appeals Management Center RO – Regional OfficesVAMC – VA Medical CentersVarious Medical SchoolsPittsburgh, PA RONational Cemetery AdministrationThe AMC handles the majority of our remands- most common The ROs take cases where the representative is a private attorney- 2nd most commonThe VAMCs takes our VHA letters and offer an opinion from a physicianMedical Schools take our IME letters and offer an opinionPittsburgh, PA RO- handles claims from abroadNCA- Handles burial benefits claims, very rare to see
33 Common Categories of Remands Due Process/ProcedureStegall violation, Manlincon, Hearing request, Inextricably Intertwined IssuesVCAA NoticeSecondary, New & Material (Kent), Death Notice (Hupp)Proper DevelopmentPrivate treatment records, VA treatment records, Social Security records, medical examinations or opinions, inadequate examinations
34 Due Process/Procedural Remands BVA Hearing requestedStegallManlinconNew EvidenceInextricably Intertwined Issues
35 StegallA previous remand confers on the claimant, as a matter of law, the right to compliance with the remand ordersStegall v. West, 11 Vet. App. 268 (1998)There must be substantial compliance with the previous remand orders (i.e.; not strict compliance)D’Aries v. Peake, 22 Vet. App. 97 (2008)The AMC or RO should have substantially complied with the previous remand directives. This is why it is important that you are not vague in what development needs to be completed. You also cannot be too specific or the RO will never be able to comply with what you are requesting and you will end up with multiple remands.
36 ManlinconThe general practice is to remand for a Statement of the Case where the Veteran filed a timely Notice of Disagreement, but no Statement of the Case has been issuedManlincon v. West, 12 Vet. App. 238, (1999); 38 C.F.R. § 19.9Sometimes in VACOLS (the system used to track where cases are at within VA) you can see the NOD has been acknowledged, but an SOC has not been issued yet. Most Judges will remand this for Manlincon, some will notThe key to Manlincon is that the issue is not going to be listed on the VA Form 8 as a certified issue from the RO and it will not be on the brief face.
37 New Evidence Received but Not Considered by AOJ Pertinent, non-duplicative, evidence received at BVA or at the RO after the last SOC (or SSOC) must be first considered by the RO38 C.F.R. §§ 19.37(a), (c) Unless there is a waiver of RO considerationIf there is no waiver in file, then:REMAND if no representative or a state representative (ex. Texas Veterans Commission), butADMINISTRATIVELY SUBMIT to national rep and have them waive/contact Veteran to determine if he or she wants to waive RO review of the evidence (Form 3230 to Admin staff)See Chairman’s Memorandum• Change in law – opposite presumption- Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 201238 U.S.C. § 7105(e)(1) (effective 180 days after 8/6/12)Where new evidence has been submitted, the Board may review it unlessThere is a request for RO reviewApplicable only where VA-9 filed on or after effective date (2/2/13)The waiver of consideration will usually be submitted at the Board hearing where the Veteran brings new evidence. However, also look for it in a rep’s statement or brief. Many times the rep will notice additional evidence has been submitted and will put a statement in their brief that RO consideration has been waived.Pay attention to new VCAA notice letters that are getting sent out to the Veterans. They generally include a page saying that unless requested, RO consideration will be waived.
38 Inextricably Intertwined Issues What to look for:The Veteran has at least two issues pending and one cannot be decided without another being decided as wellExample: You are remanding for a VAX to determine the severity of the Veteran’s lumbar spine disability and he/she is also claiming entitlement to a TDIU (total disability rating). You will need to first know what the Veteran’s percentage of disability is and then consider whether a TDIU rating is warranted based on all of the Veteran’s service-connected disabilities.You cannot decide one issue without consideration of another issue that you are remandingHarris v. Derwinski, 1 Vet. App. 180, 183 (1991); Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009)Make sure the issues are actually inextricably intertwined and both cannot go forward. If you can decide an issue then do so.
39 Common Remands for Errors in VCAA Notice Disabilities/issues that Veteran has raised- (Secondary, Increased Rating, Etc.)Make sure the Veteran has received the proper notice for his or her claims in their VCAA letterThe elements of a SC PTSD claim based on personal assault require a specialized notice letter38 C.F.R. § 3.304(f)(5)This informs the Veteran that there are different ways to substantiate his or her claim as many times assaults are not reported or recorded in treatment recordsParticular requirements for Cause of Death claimsHupp v. Nicholson, 21 Vet. App. 342, (2007), rev’d on other grounds, Hupp v. Shinseki, 329 Fed. Appx. 277 (Fed. Cir. May 19, 2009)Particular requirements for New and Material claimsKent v. Nicholson, 20 Vet. App. 1, (2006)The last page of the VCAA notice will tell you what documents were attached (the attachments generally are not included), for example- SC notice, IR notice, etc.New and material notice tells the Veteran when their claim was denied, why it was denied, and what constitutes new and material evidence. This is in the body of the VCAA letter.Most Judges will not have you remand solely for VCAA notice.
40 Remands for Proper Development Failure to Notify of Inability to Obtain RecordsMust Obtain Federal RecordsReasonable Efforts to Obtain Private RecordsObtaining ExaminationsInadequate ExaminationsGeneral Information for Proper Development in Remands
41 Failure to Notify of Inability to Obtain Records RO must notify the Veteran that it was unable to get federal or private treatment records38 C.F.R. § 3.159(e)Look for a notice letter to the Veteran informing him/her that the RO was unable to obtain specific records, but that the Veteran can submit them on their ownAlso look for a Formal Finding of Unavailability from an employee of the RO documenting what steps were taken to look for documents and the responses received (in memo format in the claims file, Formal Finding is an internal document not sent to the Veteran)
42 Obtaining Federal Records VA efforts to obtain federal records must continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile U.S.C. § 5103A(b)(3).Constructive receipt of VA records - VA is in constructive possession of all VA generated records. Bell v. Derwinski, 2 Vet. App. 611, (1992).Service treatment records may be relevant even in increased rating claimsMoore v. Shinseki, 555 F.3d 1369, (Fed. Cir. 2009)There is a duty to obtain records in New and Material evidence cases where the Veteran is attempting to reopen their claim38 C.F.R. § 3.159(c)As many requests as necessary really means until there is a determination that it is reasonably certain the records do not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2) .An initial determination is needed concerning whether the records are “relevant.” If the records that a Veteran has identified clearly have nothing to do with the pending claim, then they are probably not relevant. See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) ("Relevant records for the purpose of § 5103A are those that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim.“).Bell v. Derwinski, 2 Vet. App. 611, (1992): VA is held to be in “constructive possession” of all VA generated records (i.e., VA medical records, VA psychiatric counseling records, VA vocational-rehabilitation records, VA administrative records, etc.) and must secure and associate all such relevant records with the claims file.Reminder: Although Vet Center records are controlled by VA, a separate authorization form may be required in order to obtain them.
43 SSA RecordsRelevant records from the Social Security Administration (SSA) need to be obtained and associated with the claims fileGolz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010)This is for Social Security benefits based on disability or Supplemental Security Income benefits which are based on age, disability, and incomeNot records from the SSA where the Veteran receives benefits due to age or retirementBe watching for references to SSA benefits to appear in any sort of records!While at a VA treatment facility the Veteran might report that he/she is receiving disabilityFinancial statements that have a blank for disability or SSA monthly payment
44 Missing Service Treatment Records When STRs are missing or destroyed, VA has a heightened duty to: (1) assist a Veteran in developing a claim, (2) consider the applicability of the benefit of the doubt rule, and (3) explain its findings and conclusions.Development actions to take include:Inform the Veteran that his or her service records are missing or have likely been destroyed.Ask the Veteran to send any copies of service records in his or her possession, as well as “buddy” statements.Request that the Veteran complete a NA Form (Request for Information Needed to Reconstruct Medical Data) and/or NA Form (Questionnaire About Military Service).Advise the Veteran of alternative documents that he or she may submit or request assistance in procuring.Request Surgeon General’s Office (SGO) Extracts and Morning/Sick Reports, as appropriate, depending on the period of service.Request any other warranted development.In 1973 there was a fire at the National Personnel Records Center in St. Louis and million Veterans’ service records were burned.
45 Obtaining Private Records What to look for:References to treatment by providers other than at a VA Medical Center (VAMC)The Veteran might identify private treatment providers at a hearing, or it may be noted on a VA examination reportThe Veteran may have signed an authorization to release the records to the VA- these releases are sent out with the initial VCAA notice and the Veteran fills it out and sends it back“Reasonable efforts” to get private recordsBE AWARE- releases for private treatment records are only valid for 180 days. If the time has lapsed since the Veteran initially signed it (which it most likely has), then in the Remand request that the RO provide a new release to obtain outstanding private treatment records.Many of the Veterans receive treatment at both the VA Medical Center and through a private treatment provider. It is important to attempt to retrieve these records as they may offer a better overall picture of how long a Veteran has been diagnosed with a disability and the current severity of the disability. For example, a treating physician’s opinion can be afforded high probative value if he or she has been treating the Veteran for decades and acknowledges worsening of symptoms.
46 VA’s Duty to Obtain Medical Examinations/Opinions VA's duty to assist requires that a VA medical examination and/or opinion must be provided when there is insufficient medical evidence on file for VA to make a decision on a claim, and there is:competent evidence of a current disability, or persistent or recurrent symptoms of disability;evidence that an event, injury or disease occurred in service, or during an applicable presumptive period; andan indication that the disability or symptoms may be associated with the Veteran's service, or with another service connected condition.38 C.F.R. § 3.159(c)(4)(ii).Now that all identified and relevant records have been obtained, VA must determine whether an examination or opinion is necessary to adjudicate the claim.In the seminal case of Colvin v. Derwinski, 1 Vet. App. 171 (1991), the CAVC held that VA must consider only independent medical evidence contained in the record to support its findings, and not its own unsubstantiated medical expertise or judgment. A medical opinion may be required to reconcile diagnoses, determine the relationship between conditions, or determine etiology or nexus of a condition. See Charles v. Principi, 16 Vet. App. 370 (2002).Note: Failure to provide a Veteran with a VA examination/opinion is the most prevalent reason for remands.However, VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003).The next three slides discuss in depth the requirements that must be met before VA is obligated to obtain an examination or opinion.
47 Current Problems With Exams and Opinions Opinions Contrary to Governing Legal or Evidentiary Standards: Clinician provides an opinion that a condition is not related to service for no other reason than thatthe condition was not diagnosed in service,no symptoms were recorded during service, orthere is “no documented” link between the current condition and service.Direct Service Connection, and Continuity of Symptomatology – lay evidence is often for consideration but fails to be addressed; failure to understand that documentation in service records is not required.Conclusory, Incomplete, or Contradictory Analyses – a fully reasoned rationale is needed that addresses pertinent medical evidence.Direct Service Connection and Continuity of Symptomatology: The purpose of these provisions is to address the reality that not every condition is treated, diagnosed or has observable symptomatology during service.--While certain presumptive conditions have been established to alleviate the obligation of a Veteran to show what happened in service, such presumptions are not intended to limit service connection when the evidence warrants direct service connection.--the absence of in-service treatment is not in and of itself fatal to a claim for service connection, but rather is just one factor for consideration--Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.--”Noted” in service: As long as the condition is noted at the time the Veteran was in service, such noting need not be reflected in any written documentation, such as in examination reports, either contemporaneous to service or otherwise. (Savage v. Gober, 10 Vet.App. 488 (1997)).Lay Evidence: Lack of contemporaneous medical evidence is not in and of itself a basis for rejecting such evidence, but adjudicators can look at possible bias, conflicting statements, other conflicting evidence, etc.
48 Current Problems Continued Combat and Direct Service Connection— Mistaken assumption that simply because a condition is not documented in service that service connection is therefor prohibited.Opinion based on inaccurate medical or factual history.Does not review claims file.All legal theories of entitlement not addressed, such as Allen aggravation.Refusal of examiners to provide opinions on the basis of “speculation.”Combat (38 U.S.C. § 1154(a)): In the absence of clear and convincing evidence to the contrary, the incurrence element of a service connection claim can be satisfied by lay or other evidence when consistent with the circumstances, conditions, or hardships of combat service notwithstanding the absence of an official record.This does not create a presumption of service connection, but rather only a presumption of the satisfaction of the incurrence element of a service connection claim, i.e., what happened in service.Most, if not almost all, VA clinicians do not understand the combat incurrence presumption or the principle of direct service connection by which it is not fatally detrimental to a service connection claim for a condition to not be reflected in the STRs.Non-combat (38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a)): More specific information than just the Veteran’s statement alone is required to show what happened in service. For service connection claims, due consideration must be given to the places, types and circumstances of service, such asService and medical recordsOfficial history of organizations in which Veterans servedAll pertinent medical and lay evidence.
49 General Info for Proper Development Be sure the Veteran’s service records (Personnel or Treatment) are in the claims fileLook to see if records were requested, but never received from The Joint Services Records Research Center (JSRRC) or The National Personnel Records Center (NPRC)Radiation Claims- Specific development needed to determine if the Veteran was exposed to radiation and the amount of radiation Veteran was exposed toAgent Orange/Herbicide Claims- Specific development needed if the Veteran did not serve in Vietnam OR if the Veteran alleges he served in Vietnam, but there is no record of this OR if he was aboard a shipAsbestos Claims- Might need specific development if Veteran is claiming asbestos exposure (generally a VA exam or opinion)Other issue specific trainings will discuss appropriate remand language for obtaining specific development on issues such as blue water, brown water, and herbicide exposure in countries other than Vietnam.
50 Repository Designation Do not limit the RO or AMC in where to look for records, just request the records OR designate a specific repository but provide an outlet“Or any other appropriate source”Remember that if the Veteran is treated at a hospital in service, these records are generally kept with records for the specific hospital and not with the Veteran’s own STRsPsych or mental health treatment records are also generally not kept with the STRsThis is an example of where you can be too specific. If you ask the RO to request records from the JSRRC, but nowhere else, you can get a negative answer even though the records are with a different repository. Give the RO an option to find the records where they think is appropriate.
51 Top Remand Reasons from CAVC Inadequate discussionFailure to address credibility/evidenceFailure to consider existing case lawMedical opinion/examination requiredFailure to consider laws/regulationsOther due process violationFailure to comply with prior remandVA medical recordsService department recordsOther Duty to Assist
52 Top Remand Reasons to RO/AMC Review the monthly QR Reports to get an idea of problems QR or the Court find that necessitate remandsVA medical recordsCurrent findings (medical examination/opinion)Incomplete/inadequate findingsPrivate medical recordsNo VA examination conductedSocial Security recordsBoard travel/video hearingAdjudicate intertwined issue(s)Noncompliance/StegallIssue SOC/Manlincon
53 Board of Veterans’ Appeals OverviewSeptember 2013Introduction
54 Board of Veterans’ Appeals (BVA or Board) Mission “. . . to conduct hearings and dispose of appeals properly before the Board in a timely manner.” 38 U.S.C. § 7101(a).Jurisdiction“All questions in a matter which is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board.” 38 U.S.C. § 7104(a).OfficeofSECVA*VBAVHANCA* The Board is a Staff Organizationthat reports directly to the Secretary.
55 Appeals at a GlanceRight to Appeal. Veterans, Dependents of Veterans, and Survivors of Veterans have a right to appeal all decisions regarding VA benefits.One year to Appeal. Veterans have one year to initiate an appeal of a VBA Regional Office (RO) decision.*Multi-Stage VA Appeals System. Most of the stages for appeals processing occur at the VBA RO level. If the matter is not resolved to the Veteran’s satisfaction, the appeal may be transferred to the Board for a final agency decision. See Life Cycle of a VA Appeal Pictorial (Appendix).Board Review. The Board conducts a de novo review of the entire case, meaning that it considers all evidence without deference to factual findings and legal conclusions at the VBA RO level.Federal Court Review. If a Veteran remains dissatisfied with a Board decision, they may appeal outside the Agency to the United States Court of Appeals for Veterans Claims (CAVC), the Federal Circuit and ultimately to the United States Supreme Court.*Approximately 96 percent of the Board’s incoming workload comes from VBA; the other 4 percent comes from different sources, such as NCA, VHA, and OGC.
57 FY 2012 Performance 12,334 Hearings 44,300 Decisions Every VLJ conducts Travel Board hearings in the field, plus additional video hearings44,300 Decisions52 VLJs produce 752 or more decisions each yearAttorneys support VLJs; each must produce at least 156 case credits per year
58 Types of Board Decisions De novo review of entire claims file (i.e., full review of all evidence)Final decision of VAAppealable to the CAVCIn FY2012, the Board had a grant rate of 28.4% and a denial rate of 22.5%RemandDirects development by the local field office (most often to VBA’s Appeals Management Center (AMC) in Washington, DCIn FY2012, the Board had a remand rate of 45.8%Grant, Denial, Dismissal, Vacate, or Remand
59 Approximately 25% of appellants request an optional hearing. Board HearingsApproximately 25% of appellants request an optional hearing.Central OfficeVLJ & Veteran sit at Board Offices in Washington, DCFYTD 4%Travel BoardVLJ & Veteran sit at local ROFYTD 46%Video ConferenceVLJ sits in DC; Veteran sits atlocal ROFYTD 50%
60 Representation Veterans Service Organizations (VSOs) Attorneys Pro se Represent approximately 80% of appellants before the BoardAttorneysRepresent approximately 9% of appellants before the BoardPro seApproximately 9% of appellants before the Board elect to represent themselvesNot requiredNote: approximately 2% of appellants before the Board are represented by other types of agents.
61 Board Staffing * with $8M additional funding Source: Report of the Chairman (FY07-FY12)
62 Board FY13-FY17 Workload Projections As VBA’s workload grows, so too does the Board’sThere is a direct and proportional correlation between the number of Board employees and the number of decisions produced per year, with an average ofapproximately 90 decisions produced per FTE.
63 Initiatives to Increase Efficiencies in Appeals Process Leveraging Technology to Streamline OperationsFull partnership in VA Transformation efforts (i.e., VBMS)Increasing Video Teleconference (VTC) HearingsVirtual Docket, virtualize mail, VSO Informal Hearing Presentations (IHPs), and Board hearing transcriptsReducing Remands through Joint Training InitiativePartnering with VBA to reduce appeals and the rework required when the Board remands to VBAPartnering with VHA to improve quality of VA examinations to prevent remands for new examinations/additional medical opinionsShorter Board Decisions for appeals that can be allowed or remandedIntense Hiring programIn FY 2013, BVA hired more than 100 new attorneysWe also announced VLJ opening and are in process of making selections
64 Appendix: Life Cycle of VA Appeal Pictorial & Explanation
66 Notice of Disagreement to Statement of the Case Appeal Initiated: An appeal is initiated by the Veteran filing a “Notice of Disagreement” (NOD) at VBA.New Decision by VBA: VBA reviews the record again, conducts any additional evidentiary development required by law, and issues a decision called a “Statement of the Case” (SOC).FY 2012 Average Time Interval: From VBA’s receipt of a NOD to its issuance of the SOC: 270 days (Source: VACOLS Reports)
67 Form 9 to Certification of Appeal Formal Appeal: If a Veteran is dissatisfied with the Statement of the Case, the Veteran may file a formal appeal at VBA, called a “Substantive Appeal” (VA Form 9).Additional Decision(s) by VBA: If there are any changes in the record, like new evidence, VBA may need to issue one or more new decisions called a “Supplemental Statement of the Case” (SSOC).Transfer of Appeal to the Board: When VBA finishes the appeal, they “Certify” and transfer the claims file to the Board for a final decision.FY 2012 Average Time Interval: From VBA’s receipt of the Form 9 to certification and transfer of appeal to the Board : 692 days (Source: VACOLS Reports)
68 Receipt at the Board to Decision Final Decision. The Board renders final decisions on appeals on behalf of the Secretary.FY 2012 Average Time Interval: From the Board’s receipt of the claims file to issuance of a Board decision: 251 days (Source: VACOLS Reports)
69 References United States Code (U.S.C.) Title 38 Code of Federal Regulations (C.F.R.) Title 38How Do I Appeal? Pamphlet ~Office of the Chairman, (202)Executive in Charge /Vice ChairmanLaura H. Eskenazi