What Disabled Veterans Should Know About VA Claim Backlogs and Delays

It is no secret that VA continues to be plagued by a large backlog of claims. Despite repeated promises and commitments for improvement, VA’s backlog has actually grown significantly over the last few years. For example, by VA’s own accounting, the Secretary’s stated goal of 125 days to reach an initial decision has gone from being met in approximately 2 out of 3 claims to only 1 in 3 claims. Worse yet, the average time for a decision by the Board of Veterans’ Appeals is approaching 3 years and the time for a decision to return from an appeal to the Court can be 7 or 8 years.

There is no such thing as a “financial hardship” or “hardship” claim or any other shortcut around the backlog for initial or reopened claims. Despite widespread misinformation, there is little, if anything, that a veteran can do to “speed up” his or her initial or reopened claim at the regional office level. This does not mean that some raters will not take such circumstances into consideration if they know the claimant’s situation. But because severe financial circumstances, a terminal illness, or other hardships do not qualify a claimant for any special treatment, a claimant cannot demand such treatment. The only exception is for the claims of veterans that are or on the verge of becoming homeless. In such cases, the Secretary has directed expedited treatment of claims. Even this action is not a legal requirement, only a VA internal priority.

The Board does allow “advancement on the docket” of appeals from claimants that are “seriously ill” or “under severe financial hardship.” The Board will also consider motions from veterans over 75 years of age. Whatever the reason, veterans seeking to advance on the Board’s docket need to be very specific about why they should be able to do so and submit supporting evidence (such as a doctor’s statement or foreclosure notice) because many veterans are ill or are in financial difficulty and everyone cannot be given priority by the Board.

Other than filing a motion for advancement with the Board, attempting to “put pressure” on a VA office, the Board, or the Court is not only a waste of time, it can result in additional delay because the C-file may be removed from the line waiting for decision so that VA can respond to such attempts. This includes Congressional “inquiries,” which are often just exchanges of form letters.

There is slightly better news for claims remanded from the Board and the Court. VA is required by law to provide “expeditious treatment” of remanded claims. The Court has made clear that remands must receive higher priority development than other claims. How long VA can take to resolve a remanded claim under the “expeditious treatment” rule is not clear, but claimants can at least point to this requirement in dealing with delays in remanded claims and, if necessary, seek a Court order for VA to make a decision.

In all cases, the best thing a claimant can do is to quickly respond to each VA request with clear and to the point responses do not give VA any reason to delay making a determination.

The Secretary has a statutory obligation to expeditiously process remands from this Court.  Thus, not only must the Secretary ensure that he completes the Court-ordered task, he must do so in an expeditious manner.  38 U.S.C. §§ 5109B, 7112.  Excessive delays in the processing of remands ordered by the Court cannot help but sap public confidence and impugn the Court’s dignity, as from the outside it invariably appears that VA is ignoring the valid mandates of an institution that has express authority over it in matters related to veterans benefits.  See Erspamer v. Derwinski, 1 Vet. App. 3 (1990) (discussing delay in administrative action and public confidence).

Furthermore, the Secretary’s obligation to process Court remands expeditiously is integral to this Court’s jurisdictional authority to remedy unreasonable delays in the processing of veterans’ claims.  See Vietnam Veterans of America v. Shinseki, 599 F.3d 654, 659–660 (D.C. Cir. 2010) (suggesting that the U.S. Court of Appeals for Veterans Claims may have exclusive jurisdiction over claims concerning unreasonable delays in processing); see also Ribaudo v. Nicholson, 20 Vet. App. 552, 557 (2007) (“With respect to matters relating to veterans-benefits claims, however, Congress adopted a very different approach to judicial review.  A decision of the Board can only be appealed to a single venue—this Court.” (citing 38 U.S.C. § 7252(a))).  Therefore, failure by the Secretary to comply with his obligation to process Court remands expeditiously, is the same as noncompliance with the remand order itself, even if the Secretary eventually complies with the substance of the order.  Harvey v. Shinseki, 24 Vet. App. 284, 288 (2011).

 “While there is no absolute definition of what is reasonable time, we know that it may encompass ‘months, occasionally a year or two, but not several years or a decade.'” Community Nutrition Institute v. Young, 773 F.2d 1356, 1361 (D.C. Cir. 1985) (quoting MCI Communications Corp. v. FCC, 627 F.2d 322, 340 (D.C. Cir. 1980).  Erspamer v. Derwinski, 1 Vet. App. 3, 10 (1990).  When delay is alleged as the basis for a petition for writ of mandamus, a clear and indisputable right to the writ does not exist unless the petitioner demonstrates that the alleged delay is so extraordinary, given the demand on and resources of the Secretary, that it is equivalent to an arbitrary refusal to act.  Compare Costanza v. West, 12 Vet. App. 133, 134 (1999) (per curiam order) (addressing an 11–month delay and finding the petitioner did not demonstrate that he lacked alternative means of relief when he did not undertake to resolve delay prior to filing the petition), with Erspamer v. Derwinski, 1 Vet. App. 3, 11 (1990) (addressing a three-year delay and finding petitioner had no adequate alternative means for relief when she contacted the regional office more than 30 times before filing her petition with the Court).

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

What Disabled Veterans Should Know About the St. Louis Fire and the VA Medical Records

In 1973 there was a fire at the National Personnel Records Center (“NPRC”) in St. Louis. The NPRC is an official repository for records of military veterans who served in the United States Army, Navy, Air Force, Marine Corps, and Coast Guard. This event is important to many veterans because a large number of military service records were destroyed. The “fire” has become something of an urban legend because VA sometimes cites it as reason for not obtaining a veteran’s service records, sometimes even when the veteran left service after the fire occurred. According to a VA “Fact Sheet,” the fire destroyed about 80% of Army records for persons discharged between November 1912 and January 1960 and about 75% of Air Force records for persons discharged between September 1947 and January 1964. Because of poor recordkeeping and loaning of records, it is not possible to say for sure exactly which records were destroyed within these groups.

No other records were lost in the fire. VA itself has stated that records for veterans who left service after 1964 were not affected and that only Army and Air Force records were involved (no Navy records were affected). Clearly, records for veterans who left service after 1973 could not have been destroyed in a 1973 file. As a result, any time the “fire” is cited as a reason for VA not locating service records, veterans should take the time to determine if the record could have been affected and, if not, challenge the VA’s conclusion.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

How Effective Date Affects VA Original and Re-opened Disability Compensation Claims

The determination of the effective date for an original claim or a reopened claim is governed by 38 U.S.C. section 5110(a), which provides: “Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim [or] a claim reopened after final adjudication . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.”  The implementing regulation similarly states that the effective date shall be the date of receipt of the claim or the date entitlement arose, whichever is later, unless the claim is received within one year after separation from service.  See 38 C.F.R. § 3.400.  “Generally, effective dates of compensation awards are attached to the date of receipt of the application for benefits, and no earlier.”  Sharp v. Shinseki, 23 Vet. App. 267, 273 (2009) (citing 38 U.S.C. § 5110(a)).  Significantly, “the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA.”  Lalonde v. West, 12 Vet. App. 377, 382 (1999); seeBrannon v. West, 12 Vet. App. 32, 35 (1998) (the “mere presence of medical evidence does not establish the intent on the part of a veteran to seek service connection for a condition.”).

The effective date may also be the date on which entitlement to the benefit arose, if later than the date of the claim.  38 C.F.R. § 3.400(o).  A challenge to a decision assigning an effective date with which a claimant disagrees may be made through a direct appeal of the decision, commencing with the timely filing of a Notice of Disagreement.  38 U.S.C. § 7105.  The NOD must be in writing and filed within one year “from the date of mailing of notice of the result of initial review or determination.”  38 U.S.C. § 7105(b)(1).  Rowell v. Principi, 4 Vet. App. 9, 17 (1993); Cuevas v. Principi, 3 Vet. App. 542, 546 (1992).  Alternatively, if the decision assigning an effective date has become final, a claimant may only pursue one of the statutory exceptions to challenge the finality of that decision.  See DiCarlo v. Nicholson, 20 Vet. App. 52, 56-57 (2006) (discussing the types of collateral attack authorized to challenge a final decision by the Secretary); see also Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc) (same).

However, in Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006), the Court held that claimants may not properly file, and VA has no authority to adjudicate, a freestanding earlier-effective-date claim in an attempt to overcome the finality of an unappealed RO decision.  The Court reasoned that to allow such claims would vitiate the rule of finality. Id. Although there are numerous exceptions to the rule of finality and application of res judicata within the VA adjudication system, a freestanding claim for an earlier effective date is not one of the recognized statutory exceptions to finality.  See DeLisio v. Shinseki, 25 Vet. App. 45, 51 (“[A]n effective date generally can be no earlier than the date of the claim.”); Canady v. Nicholson, 20 Vet. App. 393, 398 (2006) (holding that a “proper effective date is a finding of fact” reviewed under the “clearly erroneous” standard).

A claimant may establish an effective date earlier than the date of the claim if the claimant is able to show an increase in disability in the one-year period preceding the claim. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (“When a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe.”); Dalton v. Nicholson, 21 Vet. App. 23, 34 (2007) (“Board is required to search the record to determine whether it is factually ascertainable that in the one year prior to the application there was an increase in disability.”); Harper v. Brown, 10 Vet. App. 125, 126-27 (1997) (noting that the general rule applies unless it is factually ascertainable that the increase occurred within the year preceding the filing of the claim); see also Scott v. Brown, 7 Vet. App. 184, 189 (1994) (under the terms of section 5110(b)(2), the effective date is either the date of the claim or “some date in the preceding year if it were ascertainable that the disability had increased in severity during that time”).

In other words, the actual increase in disability must have occurred during the one-year period immediately preceding the date of the claim; any evidence demonstrating an increase earlier than the one-year period is not a basis for an effective date earlier than the date of the claim.  The Board’s determination of the proper effective date for an award of VA benefits is a finding of fact reviewed under the “clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4).

There are only two ways to establish an earlier effective date after a decision has become final:  (1) by establishing a “Clear and Unmistakable Error” was made or (2) by submitting official service department records that existed, but were not considered, in a decision.  See 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 3.156(c); 20.1403.  As discussed elsewhere in this Knowledge Book, CUE is a “very specific and rare kind of error” that has special pleading requirements.  Section 3.156(c), however, is fairly straightforward.  If VA or a claimant discovers a service department record, such as a service record, service medical record, or unit report or log, and it is relevant to a previous decision, VA must reconsider that decision.  If reconsideration of the claim with the newly found record results in an award, the effective date of that award is the date that the originally denied claim was submitted, no matter how far back.  38 C.F.R. § 3.156(c)(3).

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

What Disabled Veterans Must Know About VA Disability Claims Nexus Letter

A “nexus letter” is a document prepared for a claimant by a medical professional that explicitly connects an in-service event to the current medical condition for which a claimant is seeking compensation. A claimant is not required to submit a nexus letter, but such a letter can make the difference between an award and a denial. A nexus letter can be submitted with an initial application, during claim development, or after an adverse C&P exam. Submitting a properly worded nexus letter as early as possible in the process, however, is good practice.

A nexus letter is especially important in cases where a claimant has not submitted any medical evidence and a C&P examiner concludes that there is no connection between a claimant’s condition and military service. Without a nexus letter, the claim will be denied. Even when a claimant supplies supporting medical evidence with an application, VA raters can and often do choose the opinion of the VA examiner over a private physician’s opinion for many reasons. In such a case, a “nexus letter” from a private physician is necessary to respond to the C&P examiner’s conclusion.

One reason for raters favoring VA examiner’s conclusions regarding a nexus when there are conflicting or unclear medical opinions is that VA examiners are more familiar with the terms that raters look for when deciding a claim. As described above, VA regulations require only that it be “at least as likely as not” that a condition be related to service for an award. This means that the likelihood of service connection is equal to or greater than 50% (a 50/50 chance or better).

Most medical professionals, however, are not familiar with the VA system or the VA concept of “at least as likely as not.” Physicians are generally familiar with the concept of “medical certainty,” which is a much higher standard than that required by VA. As a result, private physicians may apply the wrong standard if the VA terms are not explained to them. Even then, a private physician may be reluctant to state a conclusion regarding nexus and, if they do, may qualify their conclusion with terms such as “may,” “could,” “suggests,” or “possibly.” VA will often point to such qualifying terms as not meeting the legal standard for establishing a nexus, although the physician actually believed that the condition was more than 50% likely service connected.

To prevent such misunderstandings, a claimant should make sure that the medical professional asked to provide a nexus letter understands the importance of the letter and of using the VA “magic words” to correctly state the physician’s medical opinion. The terms “more likely than not” (meaning greater than 50% likelihood of a connection) and “at least as likely as not” (meaning equal to or greater than 50% likelihood of a connection) are important to use so that VA will have to recognize the nexus letter as supporting service-connection. Any other terms may be misunderstood or misconstrued by VA into something not supporting service-connection. Bringing the relevant C&P Examination Worksheet to the examination or providing it to the medical professional may be helpful.

The Court has stated that “when a nexus between a current disability and an in-service event is ‘indicated,’ there must be a medical opinion that provides some nonspeculative determination as to the degree of likelihood that a disability was caused by an in-service disease or incident to constitute sufficient medical evidence on which the Board can render a decision with regard to nexus.”  McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006) (emphasis added).  The Court has also noted that medical evidence that is too speculative to establish nexus is also insufficient to establish a lack of nexus; a VA medical examination must be undertaken to resolve the nexus issue.  Id. (citing Forshey v. Principi, 284 F.3d 1335, 1363 (Fed. Cir. 2002) (Mayer, C.J., and Newman, J., dissenting) (“The absence of actual evidence is not substantive ‘negative evidence'”)).  Jones v. Shinseki, 23 Vet. App. 382, 387-88 (2010).

If the Board finds his or her testimony credible, a claimant does not need competent medical evidence to substantiate his or her claim.  See Savage v. Gober, 10 Vet. App. 488, 495–96 (1997) (holding that, per 38 C.F.R. section 3.303(b), medical evidence of nexus is not required for benefits if the veteran demonstrates continuity of symptoms between his present disability and service); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Arneson v. Shinseki, 24 Vet. App. 379, 388 (2011).

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

What Disabled Veterans Should Know About Benefit of the Doubt When Filing VA Disability Claims

A key difference between the VA benefits system and other federal benefits systems is the standard for how convincing the evidence has to be in order to support an award. In legal terms, this is called the “standard of proof” or the “evidentiary standard.” Most people are familiar with the standard of proof of “beyond a reasonable doubt” in a criminal trial. This is a very high evidentiary standard.

In VA benefits cases the standard of proof is a “preponderance of the evidence.” This is a very low – and more easily met – evidentiary standard. Because “preponderance” means the “majority,” an award should be granted when the evidence supporting a claim is ever so slightly more than the evidence against a claim. Another way of stating this is that VA is supposed to grant a award unless more evidence is against the claim than supports the claim.

The preponderance of the evidence standard leads directly to another important rule, known as the “benefit of the doubt” rule. The law requires that, after consideration of all the evidence, if there is an approximate balance of positive and negative evidence, the benefit of the doubt in resolving each such issue should be given to the claimant. In other words, if VA finds that the evidence is equally divided between evidence supporting a claim and evidence against a claim, such as two conflicting medical opinions, the claimant gets the benefit of the positive evidence. For this reason, the rule is also known as the “tie goes to the runner” rule, where the claimant is the runner.

The benefit of the doubt rule, however, is widely misunderstood and is often the source of great frustration for claimants. Despite what many believe, the rule does not mean that VA must make an award anytime a claimant submits an account of an event supporting an award. The rule also does not mean that VA has to believe a claimant, a claimant’s spouse, or claimant’s doctor when other evidence is in conflict with their statements. VA is always required to weigh such evidence against other evidence, such as service records or other medical opinions, but VA can find other evidence more convincing.

All the rule really means is that when all the evidence on a particular issue is equally balanced between positive and negative, VA must give the benefit of the doubt to the veteran on that particular issue. The rule only applies when there is a close call on some issue: when the evidence tilts one way or the other, the rule does not apply. Further, giving the benefit of the doubt on one issue does not mean the entire claim must be resolved in favor of a claimant. This is because the rule is applied to individual issues, not an entire claim. So, for example, resolving whether a certain event occurred during service using the benefit of the doubt rule does not have any effect on the issue of whether there is a nexus between the incident and a current condition. If the evidence is strongly against a nexus, the claim will still be (correctly) denied.

Pursuant to 38 C.F.R. § 3.102, any reasonable doubt must be resolved in favor of the appellant “[w]hen there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter.”  “The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.”  38 U.S.C. § 5107(b).

“When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.”  38 C.F.R. § 4.3.  Section 3.102 defines the term “reasonable doubt” as used in § 4.3 as doubt “which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.”  38 C.F.R. § 3.102; see Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001) (stating that section 3.102 “restates” the provisions of 38 U.S.C. section 5107(b) (benefit of the doubt) in terms of “reasonable doubt”).  Thus where the Board concludes that the evidence is not in equipoise, specific consideration of section 4.3 is not warranted.  See Schoolman v. West, 12 Vet. App. 307, 311 (1999) (explaining that where the preponderance of the evidence is against an appellant’s claims, “the benefit of the doubt doctrine does not apply”).  Mayhue v. Shinseki, 24 Vet. App. 273, 282 (2011).

Perhaps the analogy most helpful to an understanding of the “benefit of the doubt” rule is that the standard is similar to the rule deeply embedded in sandlot baseball folklore that “the tie goes to the runner.”  If the ball clearly beats the runner, he is out and the rule has no application; if the runner clearly beats the ball, he is safe and, again, the rule has no application; if, however, the play is close, then the runner is called safe by operation of the rule that “the tie goes to the runner.”  Similarly, if a fair preponderance of the evidence is against a veteran’s claim, it will be denied and the “benefit of the doubt” rule has no application; if the veteran establishes a claim by a fair preponderance of the evidence, the claim will be granted and, again, the rule has no application; if, however, the play is close, i.e., “there is an approximate balance of positive and negative evidence,” the veteran prevails by operation of 38 U.S.C. section 5107(b).  Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

The Court has held that the failure of the BVA to apply the benefit of the doubt rule or to set forth clearly its reasons for not applying it constitutes error.  See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Sussex v. Derwinski, 1 Vet. App. 526, 529 (1991).  In addition, the Court notes that 38 U.S.C. 1154(b) provides specifically that the Secretary “shall resolve every reasonable doubt in favor of the veteran.”  38 C.F.R. § 3.302.  Furthermore, when the BVA can cite no evidence or facts by which to impeach or contradict a claim, there is no justifiable basis upon which to deny application of the doctrine under 38 C.F.R. § 3.102.  Sheets v. Derwinski, 2 Vet. App. 512, 516-17 (1992).

Because the benefit of the doubt rule only applies in these specific situations, the rule is not applicable to many claimants. In cases where there is significant evidence in support of a claim, however, VA must provide a satisfactory explanation as to why the evidence was not balanced enough to apply the rule if the decision was adverse to the claimant.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

What Veterans Must Know About Duty Requirements In Processing VA Disability Claims

Duty to Assist

In requiring the VA benefits system to be a “non-adversarial” process, Congress has imposed on VA a “duty to assist” claimants. The most significant VA duties are discussed below. In general, VA is required to notify a claimant of what information is required to obtain an award of the benefits requested. VA also has a duty to obtain a veteran’s service records, service medical records, VA treatment records, and any other government records (such as Social Security Administration records) that reasonably may contain information supporting the claim. These duties significantly ease the burden on claimants in assembling the evidence needed to support a claim.

The duty to assist, however, does not mean a claimant has no responsibility for his or her claim. Even if a claim satisfies the minimum threshold for the duty to assist to apply, the law requires VA only to “assist” a veteran with the development of the evidence in support of his or her claim: there are limits on what VA has to do to help a veteran. A claimant seeking a benefit, still has a responsibility to be an active participant in the claims process if he or she wants to be successful.

VA has other duties that can be helpful to claimants in certain circumstances. If an award is made, VA has a duty to look for ways to maximize the benefit paid to a claimant based on the evidence. This means that VA has to consider all the possible diagnostic codes that could apply and base an award on the code or codes that result in the highest payment. VA also has to identify and grant awards for “inferred” claims, which are claims that the evidence supports but the claimant did not specifically request. Both of these duties make it easier for veterans to receive the greatest benefit possible without having to be an expert in VA law.

A claimant also needs to keep in mind that, the duty to assist aside, VA also has responsibilities to follow the law and to prevent improper awards. As a practical matter, this means that the system eventually becomes “adversarial” when VA decides that an award cannot be granted. Further, the huge backlog of claims has strained VA’s resources and continues to result in a high rate of errors. For these reasons, claimants should remain actively involved in their claims and maintain a healthy skepticism of VA decisions throughout the process to avoid a wrongful denial.

Duty to Provide Notice

A claimant has an initial responsibility to file a substantially complete application. If he or she does not do so, VA does not have to process the application. VA does, however, have a “duty to notify” the claimant of the information needed to make the application complete enough to process.

Although exactly what makes an application substantially complete is not defined, VA usually requires at least the following minimum information for a substantially complete application: (1) claimant’s name and, if not the veteran, the relationship to the veteran upon whom the application is based; (2) the medical condition(s) claimed; and (3) the claimants signature. Pension claims also require a statement of income before VA will begin processing the claim. Whatever the reason, if VA determines that an application is not substantially complete, VA has to notify the claimant of the information that it believes is needed to complete the application.

Once a substantially complete application has been submitted, VA has a second “duty to notify.” This time VA has to tell the claimant (1) what information is needed to substantiate the claim, (2) what part of that information VA will try to obtain; and (3) what information that the claimant is responsible for providing to VA. Each time a new issue or claim arises, VA has the same duty to notify the claimant of what information is needed and who (VA or claimant) is responsible for obtaining it.

Section 5103A notification requirements cannot be met through a combination of unrelated decisional and postdecisional communications.  Mayfield v. Nicholson, 444 F.3d 1328, 1335 (Fed. Cir. 2006).  Section 5103 requires VCAA notification to be issued “prior to the initial decision of the claim, not afterwards.”  Id. at 1333. 

The Court must assess the Board’s notification analysis as a whole to adequately determine whether a factual finding regarding 38 U.S.C. § 5103(a) notification had been made by the Board in the first instance.  Prickett, 20 Vet. App. at 375-76; Yarbrough v. Nicholson, 21 Vet. App. 512 (2006).  The Court reviews the Board’s determination that VA satisfied its duty to assist under the “clearly erroneous” standard of review.  Nolen v. Gober, 14 Vet. App. 183, 184 (2000).

Duty to Obtain Records

The VA is required to make “reasonable efforts” to obtain a claimant’s military service records, VA medical records, and other pertinent federal records without being asked to do so. If a claimant requests assistance in obtaining records from private physicians and hospitals, VA is required to try to obtain those records as well. However, VA is not required to continue to request or wait for records if it determines that the records do not exist or further efforts to obtain the records would be futile. In addition, VA will not pay for obtaining private medical records.

As a practical matter, VA usually can obtain records from government agencies and the military without significant problems. There are situations, however, where VA does not properly request documents or the documents have been lost or destroyed by another agency. VA must inform a claimant of its failure to obtain relevant records. A claimant can and should submit his or her copy of relevant documents even if VA is technically responsible for obtaining the information because the lack of relevant information can result in denial of an otherwise valid claim.

“The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit under a law administered by the Secretary.”  38 U.S.C. § 5103A(a)(1).  Gardner v. Shinseki, 22 Vet. App. 415, 421 (2009) (“Accordingly, the Secretary’s duty to assist applies to all claimants, regardless of whether they have established veteran status.”).  VA is statutorily required to “make as many requests as are necessary” to obtain a veteran’s relevant service records in the custody of a Federal department or agency.  38 C.F.R. § 3.159(c)(2); see Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); see also Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992) (“There is a continuing obligation upon the VA to assist the veteran in developing the facts of his claim throughout the entire administrative adjudication.”).

Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, the Secretary is required to inform the claimant of the information and evidence not of record that:

(1)   is necessary to substantiate the claim,

(2)   the Secretary will seek to obtain, if any, and

(3)   the claimant is expected to provide, if any, and to request that the claimant provide any evidence in his possession that pertains to the claim.  

See 38 U.S.C. § 5103(a); Pelegrini v. Principi, 18 Vet. App. 112, 119, 121 (2004); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b). This duty includes making “reasonable efforts to obtain relevant records (including private records) that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain.”  38 U.S.C. § 5103A(b)(1).  If the Secretary is unable to obtain all of the records sought, the Secretary must provide notice to the claimant that “identif[ies] the records that the Secretary was unable to obtain,” “briefly explain[s] the efforts that the Secretary made to obtain those records,” and “describe[s] any further action to be taken by the Secretary with respect to the claim.” 38 U.S.C. § 5103A(b)(2).  These requirements also apply to private documents. 

But, the “duty to assist in the development and adjudication of a claim is not a one-way street.”  Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996).  VA’s duty to assist includes making “reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit.”  38 U.S.C. §§  5103A(a)(1), (b); cf.  The Board’s determination whether VA fulfilled its duty to assist generally is a finding of fact that the Court reviews under the “clearly erroneous” standard of review.  See Nolen v. Gober, 14 Vet. App. 183, 184 (2000); Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990). 

Duty to Obtain Lost or Missing Records

VA’s duty in cases involving lost records is to seek out alternative sources for obtaining the lost records.  Cromer v. Nicholson, 455 F.3d 1346, 1351 (Fed. Cir. 2006).  Pursuant to 38 U.S.C. section 5103A, the Secretary is required to “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for benefits.”  38 U.S.C. §§ 5103A(a), (b). Where a claimant’s records are lost or destroyed, VA has a “heightened” duty to assist the claimant that includes advising him that his records were lost, advising him to submit alternative forms of evidence to support his claim, and assisting him in obtaining his alternative evidence.  Washington v. Nicholson, 19 Vet. App. 362, 370 (2005); Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). 

However, the Court cannot grant an appellant’s claim solely because his records were lost because that remedy “would amount to a judicial amendment of the statutory duty to assist-a measure beyond the power of this court.”  Id. at 1351.  A veteran bears the burden of showing error on this issue.  See Hilkert v. West, 12 Vet. App. 145, 151 (1999) (holding that the appellant bears the burden of demonstrating error); Berger v. Brown, 10 Vet. App. 166, 169 (1997) (holding that an appellant “always bears the burden of persuasion on appeals to this Court”).

When medical records are lost, it warrants a heightened duty by the Secretary and the Board to assist and explain the Board’s findings.  See Vazquez-Flores, supra; see also Cromer v. Nicolson, 455 F.3d 1346, 1351 (Fed. Cir. 2006) (“[I]n cases involving lost records, the Board has a heightened duty to explain its findings.”); Daye v. Nicholson, 20 Vet. App. 512, 515 (2006) (where appellant’s records not available, the duty to assist and fully explain reasons and bases is heightened); Stegall, supra; see also Russo v. Brown, 9 Vet. App. 46, 51 (1996) (holding that the Court’s caselaw establishes a “heightened duty” to assist when the appellant’s medical records have been lost or destroyed); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992) (holding that the Board’s duty to assist a claimant in developing his claim is heightened in cases in which the appellant’s SMRs are lost or destroyed “and includes the obligation to search for alternate medical records”); Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) (holding that VA’s duty to assist is “particularly great in light of the unavailability of the veteran’s exit examination and full Army medical records”).

Duty to Provide Medical Examination 

VA is required to schedule a compensation and pension (C&P) examination for a claimant at the nearest VA medical center unless there is a good reason for not doing so, such as when an expert is required that is not available at the nearest facility or the examination is with a VA medical contractor. VA, however, does not have to provide a medical examination in all cases. The standard for providing a medical examination is usually not difficult to meet. VA, however, can refuse to provide a VA medical examination unless there is some reasonable possibility that an examination will provide information that could be useful in deciding the claim.

In general, to obtain a C&P examination a claimant needs to show a current medical condition, some evidence of potential connection to service, and that available medical evidence is not sufficient to allow a decision on the claim. In other words, the claimant must first provide some reason for VA to believe that a medical examination would be helpful in resolving the claim. A claimant’s own statement that his or her symptoms have continued since service or a previous medical examination report can be enough of a reason.

Should VA schedule a medical examination, a claimant has a duty to report for the examination. In most cases, if the claimant does not show up for an examination, the claim(s) associated with that examination can be denied without further development. There are some reasons for failing to show for a scheduled examination, such as illness or urgent family emergency, that can be excused. Even so, claimants should make every effort to reschedule an examination in advance to avoid problems.

As part of his duty to assist, the Secretary must “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit” including a medical examination.  38 U.S.C. § 5103A(a)(1).  The Secretary must provide a medical examination or obtain a medical opinion “when such an examination or opinion is necessary to make a decision on the claim.”  38 U.S.C. § 5103A(d)(1).  VA must provide a medical opinion or examination if the information and evidence of record does not contain sufficiently competent medical evidence to decide the claim, but there is:

(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 or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and

(3)   an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability.

McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 C.F.R. § 3.159(c)(4)(i).  The requirement that the evidence indicate that a condition “may be associated” with service establishes a “low threshold.”  McLendon, 20 Vet. App. at 83. 

When deciding whether an examination is necessary, the Secretary shall consider the evidence of record, “taking into consideration all information and lay or medical evidence (including statements of the claimant).”  38 U.S.C. § 5103A(d)(2).  “The Board’s ultimate conclusion that a medical examination is not necessary pursuant to section 5103A(d)(2) is reviewed under the ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law’ standard of review.”  McLendon, 20 Vet. App. at 81.

Generally, section 5103A notice must be given on “all five elements of a claim for service connection,” which include:

 (1) veteran status;

(2)   existence of disability;

(3)   service connection of disability;

(4)   degree of disability; and

(5)   effective date of disability.  

38 U.S.C. § 5103(a); Dingess v. Nicholson, 19 Vet. App. 473, 487 (2006) (consolidated with Hartman v. Nicholson, No. 02-1506), aff’d in part sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed.Cir.2007)); see also D’Amico v. West, 209 F.3d 1322, 1327 (Fed. Cir. 2000) (noting the five elements of a claim for service connection).

Duty to Identify Inferred Claims

Once VA has gathered all the reasonably obtainable information, including information submitted by the claimant, VA must decide whether or not to grant an award of benefits. In making that decision, VA must consider three other duties owed to the claimant: (1) duty to identify inferred claims, (2) duty to consider all reasonable legal theories, and (3) duty to maximize benefits. In other words, VA has several duties to apply the rules to the facts in a case in whatever way provides the most generous benefits allowed by the law.

These duties do not mean that VA has to look at every possible combination of rules and facts that may be even remotely possible. VA, however, has to review the entire record and apply the applicable provisions of law that are reasonably raised by the evidence. In addition, whether or not new claims are identified, VA must also review the diagnostic codes for the code or combination of codes that results in the highest benefit for the claimant.

Overall, in creating the duty to assist Congress recognized that VA raters are better trained and more experienced with the rules for obtaining benefits than the average claimant. VA must look for claims and grant awards based on all the evidence in the C-file whether or not the claimant asked for the specific benefit. This is a very good reason for claimants to provide as much information as possible when submitting applications or responding to VA requests.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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What Disabled Veterans Must Know About Non-Adversarial System of the Veterans Law

Unique Aspects of Veterans Law

The basic operation of VA is very similar to other federal agencies. The legal requirements that VA must follow are created by Acts of Congress and codified in statutes. The VA Secretary, however, has very broad powers to prescribe the many rules and regulations “necessary or appropriate” to carry out those legal requirements. And, as long as the Secretary’s actions “are consistent” with the laws enacted by Congress, a court will not interfere with VA’s decisions.

Congress, however, has long recognized that veterans have earned special consideration for their service to the country. In recognition of this service, Congress has imposed several special duties and requirements on VA to ease the burden on veterans seeking benefits. Claimants should be aware of these special considerations because they provide a veteran with significant advantages in seeking an award.

There is a “basic principle of the VA claims process that claims will be processed and adjudicated in an informal, nonadversarial atmosphere, and that to ensure a just outcome under this rubric VA will assist claimants in many ways.”  Evans v. Shinseki, 25 Vet. App. 7, 14 (2011); EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (stating that although the arguments made in a VA Form 9 appeal to the Board often frame the nature of that appeal: “there is nothing magical about the statements actually on the Form 9, given the VA’s non-adversarial process.”).  A claimant for VA benefits has avenues to seek redress before the Secretary within the non-adversarial VA system (motions for reconsideration at the Board, motions alleging clear and unmistakable error in Board or VARO decisions, requests for vacation of Board decisions based upon denial of due process, and even requests for equitable relief from the Secretary have long been available).  See 38 U.S.C. §§ 503, 5109A, 7103, 7111; 38 C.F.R. §§ 20.904, 20.1001, 20.1400.  

Unlike other federal benefits systems, such as the Social Security Administration process, the VA claims process is intended to be “non-adversarial, paternalistic, uniquely pro-claimant.” This means that VA is supposed to help claimants with obtaining an award, rather than opposing an award and forcing applicants to “prove” their claims by themselves. This does not mean that a claimant should “file and forget” a claim and expect VA to award a claim without questions, but Congress has removed or reduced many of the most burdensome aspects of obtaining federal benefits for VA claimants.

A significant advantage for veterans seeking benefits is that VA has no formal “pleading” requirements. This eliminates the need for a claimant to identify the specific benefits and the specific legal bases for an award when submitting a claim. Instead, VA claimants only have a general duty to file a “substantially complete” claim.

It is important to keep in mind that, even with the advantages provided by Congress, a VA claimant still has the responsibility to present and support a claim for benefits. This means that an application must provide enough information to allow VA to reasonably attempt to develop a claim to meet the legal requirements for an award. This is not a high threshold, but a claimant must meet it to have VA assist with a claim.

Filing an NOA under section 7266, however, demonstrates the exact opposite intent – a claimant’s intent no longer to pursue his claim for benefits through the Secretary, but instead to take the Secretary to court by seeking a legal review before the Court of the Secretary’s actions on his case.  This separation between VA and the Court was made even more emphatic when Congress passed the Veterans Education and Benefits Expansion Act, Pub. L. No. 107-103, 115 Stat. 976 (Dec. 27, 2001), and removed from section 7266 the requirement for a veteran to “furnish the Secretary with a copy of [an NOA].”  Bobbitt v. Principi, 17 Vet. App. 547, 552-53 (2004).

Filing an appeal to the Court thus is not an action within the “non-adversarial, manifestly pro-claimant veterans’ benefits system.”  Rather, a veteran’s appeal to this Court is the first step in an adversarial process challenging the Secretary’s decision on benefits.  See Forshey v. Principi, 284 F.3d 1335, 1355 (Fed. Cir. 2002) (en banc), cert. denied, 537 U.S. 823, 123 (2002) (“The veterans’ benefits system remains a non-adversarial system when cases are pending before the Veterans’ [sic] Administration.  However, the Court of Appeals for Veterans Claims’ proceedings are not non-adversarial.”).  Before the Court, the Secretary becomes a represented appellee in an appellate court adversarial proceeding.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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What Veteran Should Know About Sources of Authority to Veterans Disability Claims

Acts of Congress

Although many acts of Congress have had some impact on the law governing veterans’ benefits, three acts define the current VA benefits adjudication system.  The Veterans’ Judicial Review Act of 1988 (“generally referred to as the “VJRA”).  Pub. L. No. 100-687, 102 Stat. 4105 (1988).  Among other things, the VJRA:

  1. removed the bar to paid representation of veterans by attorneys and allowed a reasonable fee to be paid;
  2. created a court to review decisions of the Board of Veterans’ Appeals; and
  3. opened a path to higher level review by the United States Court of Appeals for the Federal Circuit and the United States Supreme Court.

The Veterans Claims Assistance Act of 2000 (the “VCAA”) explicitly established the VA’s duty to assist veterans with their claims.  Pub. L. No. 106-475, 114 Stat. 2096 (2000).  Finally, the Veterans Benefits, Health Care, and Information Technology Act of 2006 permitted veterans to retain paid legal counsel following the filing of a Notice of Disagreement instead of having to wait until a Board denial.  Pub. L. No. 109-461, 120 Stat. 3403 (2006).

Statutes

Acts of Congress are not generally constructed in a way to be directly useful in resolving specific complaints or applications for benefits.  In many acts, the bulk of the language is detailed directions on how to amend existing statutes to add or delete a word, a phrase, or a complete section.  It is only after the directions contained in an act are implemented in a “statute” that a complete process can be applied to specific cases.  The entire set of statutes is called the United States Code (“USC”).

For VA, all of the applicable statutes incorporating Congress’ directions regarding VA benefits are located in Title 38 of the United States Code.

Regulations

As with other administrative agencies, VA actions are governed by both “regulations” (also called “rules”) and “informal” internal guidance such as policies, office manuals, and management directives.  The Administrative Procedure Act (APA) mandates that federal agencies publish their substantive rules, and amendments thereof, in the Federal Register, to provide notice to affected citizens and the opportunity to comment. See 5 U.S.C. §§ 552, 553; Morton v. Ruiz, 415 U.S. 199, 232 (1974) (APA provides that “administrative policies affecting individual rights and obligations be promulgated pursuant to certain stated procedures so as to avoid the inherently arbitrary nature of unpublished ad hoc determinations”).  The VA’s rules are found in Title 38 of the Code of Federal Regulations.  The reference is often shortened to “38 C.F.R.” or “38 CFR” followed by the section number (for example, 38 C.F.R. § 3.103, 38 CFR 3.103, or 38 C.F.R. section 3.103).  These rules must comply with the statutes in Title 38 of the United States Code, which is often similarly shortened to “38 U.S.C.” or “38 USC.”

Although it was VA policy to comply voluntarily with the APA since 1972, VA was not otherwise required by law to comply with the APA until the Veterans’ Judicial Review Act (VJRA) became effective in September 1, 1989. Compare Administrative Procedure Act, Pub. L. No. 89–554 (1966) (excluding matters relating to “benefits” from the APA), with Veterans’ Judicial Review Act, Pub. L. No. 100–687 (1988) (subjecting VA to the APA); see also 38 C.F.R. § 1.12 (1972) (“It is the policy of the Department of Veterans Affairs to afford the public general notice, published in the

Federal Register, of proposed regulatory development, and an opportunity to participate in the regulatory development in accordance with the provisions of the Administrative Procedure Act (APA). All written comments received will be available for public inspection.”). Thus, until passage of the VJRA, VA rules and regulations lived in “splendid isolation,” generally unconstrained by judicial review.  Brown v. Gardner, 513 U.S. 115, 122 (1994); see Pub. L. 100–687 (permitting judicial review by this Court and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit)).

Given this unique history, it is not a surprise that substantive rules promulgated before the APA might be contained in the M21–1MR or a directive, letter, or other document (as described below).  See Buzinski v. Brown, 6 Vet. App. 360, 369 (1994) (noting that Rank v. Nimmo, 677 F.2d 692, 698 (9th Cir. 1982), held that “VA handbooks, circulars, and manuals” may have the “force and effect of law” if they prescribe substantive rules); Fugere v. Derwinski, 1 Vet. App. 103, 107 (1990) (the placement of a rule “in a procedural manual cannot disguise its true nature as a substantive rule”), aff’d, 972 F.2d 331 (Fed.Cir.1992).

Moreover, substantive rules promulgated prior to the statutory requirement that VA comply with the APA remain binding on the Secretary until they properly are revoked or amended.  See Fugere, 1 Vet. App. at 110 (noting that a substantive rule may not be rescinded until the Secretary has “‘published notice of his intention to rescind it, invited comment, put that comment … on the public record, and published a reasoned and reviewable explanation of his decision to rescind [it].'” (quoting Nat’l Wildlife Fed’n v. Watt, 571 F. Supp. 1145, 1156 (D.D.C. 1983))).  This is consistent with procedural regularity and basic fair play required in adjudicating veterans’ claims. See Thurber v. Brown, 5 Vet. App. 119, 123 (1993) (holding that veterans in particular are entitled to “procedural regularity and basic fair play” in the adjudication of their claims); Fugere, 1 Vet. App. at 108 (“‘Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.'” (quoting Morton, 415 U.S. at 235)).

Further, it is clear a properly promulgated regulation trumps an M21–1MR provision or other VA directive that plainly is erroneous or inconsistent with regulation.  Compare Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011) (“VA interpretations of its own regulations in its Adjudication Procedures Manual [M21–1MR] are ‘controlling’ as long as they are not ‘plainly erroneous or inconsistent with the regulation.'” (citing Thun v. Shinseki, 572 F.3d 1366, 1369 (Fed.Cir.2009) (quoting Auer v. Robbins, 519 U.S. 452, 461 (1997)))), Haas, 525 F.3d at 1197 (holding that an M21–1MR requirement inconsistent with regulation confers no rights on claimant), and Fournier, 23 Vet. App. at 487–88 (discussing Haas), with Cohen v. Brown, 10 Vet. App. 128, 139 (1997) (“Where the Manual M21–1MR and the regulation overlap, the Manual M21–1MR is irrelevant …. except where the Manual M21–1MR is more favorable to the claimant.”).  See also Castellano v. Shinseki, 25 Vet. App. 146, 150-52 (2011).

The BVA is not free to ignore regulations that the Secretary has promulgated consistent with his statutory authority.  Rather, the “BVA is required to apply all relevant statutes and regulations appropriate to the particular case before it.”  Wilson (Merritte) v. West, 11 Vet. App. 383, 385 (1998) (holding that failure of VA to follow its own regulations in terminating dependency and indemnity compensation benefits, based on severance of service connection, constituted prejudicial error); see also Patton v. West, 12 Vet. App. 272, 283 (1999) (“the Court believes that substantial interests of justice dictate that the Court require the Secretary to adhere to his own regulatory provisions”); Buzinski v. Brown, 6 Vet. App. 360, 367 (1994) (“we agree that … VA is obligated to follow the regulations it promulgates” (citing United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 269 (1954); Vitarelli v. Seaton, 359 U.S. 535, 539 (1959))).

OGC Opinions

The Office of General Counsel of the Department of Veterans Affairs (“OGC”) is the Secretary’s law firm.  One role of OGC is to issue written legal opinions on questions of law raised in adjudicating benefits claims.  The General Counsel’s interpretations on legal matters in those opinions are binding on VA officials, the Board, and VA regional offices in adjudications until a change in the law by Congress, a Court decision, or a later written OGC opinion.

The Court, however, is not bound by VA General Counsel precedent opinions.  Hatch v. Principi,18 Vet. App. 527, 531 (2004); see also Theiss v. Principi, 18 Vet. App. 204, 210 (2004); Cottle v. Principi, 14 Vet. App. 329, 335 (2001); Sabonis v. Brown, 6 Vet. App. 426, 429 (1994); see also38 U.S.C. §§ 7104(c), 7261.  The Court reviews the Secretary’s interpretation of law de novo.  See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (en banc).  Hatch v. Principi, 18 Vet. App. 527, 531 (2004).

M21-1MR Manual

It is very difficult to run an organization as large as the VA with only the formal rules in the Code of Federal Regulations.  So, as with many other federal agencies, VA has developed all sorts of “informal” guidance for its employees to use in performing day-to-day work.  This guidance can be in the form of manuals, “letters,” “memos,” or policies.  Although no one challenges the usefulness of such “guidance,” whether or not these types of documents are the “law” can be an important issue in litigation where a claimant challenges the way VA handles his or her claim.

VA has developed a detailed procedures manual, the Compensation and Pension Manual Rewrite (designated by VA as the “M21-1 MR” manual), to guide its raters and reviewing officials who adjudicate benefits claims.  The M21-1 MR is primarily “an internal manual used to convey guidance to VA adjudicators [and] not intended to establish substantive rules beyond those contained in statutes and regulations.”  See Guerra v. Shinseki, 642 F.3d 1046, 1050-51 (Fed. Cir. 2011) (quoting 72 Fed. Reg. 66,218 (Nov. 27, 2007)).  In other words, the M21-1MR is only guidance for VA personnel and the guidance in the M21-1MR does not replace or overrule Congress’s statutes or VA’s regulations.

Because it can take a long time and significant effort to complete a rulemaking and because many VA rules were created before Court review was available, VA sometimes tries to enforce M21-1MR guidance as if it were a regulation.  The Court, however, has determined that the placement of a rule “in a procedural manual cannot disguise its true nature as a substantive rule,” Fugere v. Derwinski, 1 Vet. App. 103, 107 (1990), aff’d, 972 F.2d 331 (Fed. Cir. 1992), because substantive rules are deemed “the equivalent of VA regulations.”  Cohen v. Brown, 10 Vet. App. 128, 139 (1997).  This means that if there is a conflict between the M21-1MR manual and a substantive rule (a statute in the U.S.C. or a C.F.R. rule), the statute or rule prevails.  In other words, just because the VA says that the M21-1MR requires something does not mean that the law necessarily requires the same thing.  If the issue is important to an award, a claimant should do further research to see if the relevant regulation and statute require a different action or result.

Other VA Policies, Procedures, and Guidance

In certain circumstances, M21-1MR provisions may be construed as “the equivalent of Department regulations.”  See Hamilton v. Derwinski, 2 Vet. App. 671, 675 (1992) (holding that substantive rules in the M21-1MR Manual are binding on VA).  As such, the Board errs when it fails to consider a M21-1MR provision’s possible relevance with respect to VA’s compliance with the duty to assist.  See 38 U.S.C. § 7104(a).  Likewise, the Board should consider the applicability of Fast Letters or predecessors.  Id.see also United States v. Picciotto, 875 F.2d 345 (D.C. Cir. 1989).  Such a policy does not create “new substantive law” it merely clarifies the applicable regulation by “provid[ing] concrete guidance as how” the regulation should “be applied in practice.”  Stinson v. United States, 508 U.S. 36, 44 (1993) (holding that the sentencing commission’s commentary to the sentencing guidelines is treated as an agency’s interpretation of its own legislative rule).

Moreover, a handbook “reflect[s] the agency’s fair and considered judgment on the matter in question.”  Auer v. Robbins, 519 U.S. 452, 462 (1997).  When a handbook was created prior to pending litigation and the policy prescribed therein is consistent with the information provided in other guidance documents issued by the Secretary, the handbook is “in no sense a ‘post hocrationalizatio[n]’ advanced by an agency seeking to defend past agency action against attack.”  Auer, 519 U.S. at 462 (quoting Bowen v. Georgetown Univ., 488 U.S. 204, 212 (1988)).  In order for VA handbooks, circulars, and manuals to have the “force and effect of law” they must “prescribe substantive rules—not interpretive rules.”  Rank v. Nimmo, 677 F.2d 692, 698 (9th Cir. 1982).  The Rank court found that the VA Lender’s Handbook and VA Circular 26–75–8 did not prescribe substantive rules but were “general statements of agency policy and procedure” intended as a “general guide to VA employees,” and thus there was no enforceable duty on the part of the VA to “take all reasonable measures to avoid foreclosure.”  Rank II, 677 F.2d at 698.

The distinction set out in Rank II between “substantive” and “interpretive” rules is similar to this Court’s analysis.  Fugere v. Derwinski, 1 Vet. App. 103, 107–08 (1990) (noting the distinction between “substantive” and “interpretive” rules for enforceability purposes, and holding that a VA manual provision regulating the award of benefits for defective hearing “affected a substantive right and [that] its placement in a procedural manual [could not] disguise its true nature as a substantive rule.”); see also Hayes v. Brown, 4 Vet. App. 353, 360 (1993); Suttmann v. Brown, 5 Vet. App. 127, 138 (1993).  The VA issuances discussed in Rank II, 677 F.2d at 694–95, imposed no specific mandatory duties on VA employees as distinguished from providing general guidance.  Buzinski v. Brown, 6 Vet. App. 360, 369 (1994).

However, “not all agency policy pronouncements which find their way to the public can be considered regulations enforceable in federal court.”  Chasse v. Chasen, 595 F.2d 59, 62 (1st Cir. 1979).  “[I]n order for VA handbooks, circulars, and manuals to have the ‘force and effect of law’ they must ‘prescribe substantive rules—not interpretive rules.'” Buzinski v. Brown, 6 Vet. App. 360, 369 (1994) (quoting Rank v. Nimmo, 677 F.2d 692, 698 (9th Cir.1982)).  Such a result is also possible as to VA issuances that predate the VCAA, should a VA adjudication under the implementing regulations provide a result less favorable than would have been provided under those pre-VCAA issuances.  See, e.g., McCormick v. Gober, 14 Vet. App. 39 (2000) (holding that VBA Letter 20-99-60 was binding VA issuance although not adopted after notice and opportunity for public comment); Morton, supra (as to withdrawal of opinion); Patton v. West, 12 Vet. App. 272, 277-84 (1999) (holding certain parts of VA Adjudication Procedure Manual, M21-1MR, were binding on VA); Cohen (Douglas) v. Brown, 10 Vet. App. 128, 139 (1997) (same).  Holliday v. Principi, 14 Vet. App. 280, 292 (2001) overruled by Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

The VA “Clinician’s Guide” is an instructive, but not a binding, document and allows each VA examiner discretion as to how to conduct an examination in an individual case.  See Allin v. Brown, 6 Vet. App. 207, 214 (1994).  The first chapter of the Guide states, “[t]he Clinicians Guide and any of its parts (worksheets) are intended solely as a guide for clinicians, and it is not legally binding on a clinician to perform all portions of the examination protocol.”  VA Clinician’s Guide, § 1.1 (2002).  Moreover, to the extent that an appellant disagrees with the qualifications or conclusions of the medical examiner, the competency of VA examiners is to be presumed, based on the presumption of regularity, in the absence of evidence to the contrary.  Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009); Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (citing Hilkert v. West, 12 Vet. App. 145, 151 (1999), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table)). Because the examiner is presumed competent, the examiner’s medical judgments, such as what tests to perform and what details of an examination are salient, are also presumed to be sound in the absence of sufficient contrary evidence.  See, e.g., Sickles v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011) (due to presumed competency of medical examiner, Board was entitled to presume that a VA medical examination was sufficiently informed by a physical examination or other diagnostic procedures selected by the examiner); see also Rizzo, 580 F.3d at 1292 (the presumption of regularity may be rebutted by the submission of clear evidence to the contrary).

You may also see references to “38 U.S.C.S.” (United States Code Service”) or “38 U.S.C.A.”  (United States Code Annotated).  These are versions of the United States Code published by non-governmental organizations and which provide additional comments or references in addition to the statute itself.

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Disabled Veterans Have the Right to be Heard with their Disability Claims

“Upon request, a claimant is entitled to a hearing at any time on any issue involved in a claim within the purview of part 3 of [title 38 of the Code of Federal Regulations.]”  38 C.F.R. § 3.103(c)(1).  “It is the responsibility of the [VA] employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position [on appeal].”  38 C.F.R. § 3.103(c)(2).  This provision “imposes … two distinct duties on the hearing officer …:  The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.”  Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (per curiam).  These requirements are designed “‘[t]o assure clarity and completeness of the hearing record.'”  Thomas v. Nicholson, 423 F.3d 1279, 1285 (Fed. Cir. 2005) (quoting 38 C.F.R. § 3.103(c)(2)); see also Bryant, 23 Vet. App. at 499.

“The entire thrust of the VA’s nonadversarial claims system is predicated upon a structure which provides for notice and an opportunity to be heard at virtually every step in the process.”  Thurber v. Brown, 5 Vet. App. 119, 123 (1993); see Cushman v. Shinseki, 576 F.3d 1290, 1300 (Fed. Cir. 2009) (Due Process Clause applies to proceedings for veterans benefits); Gambill v. Shinseki, 576 F.3d 1307, 1310-11 (Fed. Cir. 2009) (same).  The Fair Process doctrine does not prohibit administrative procedures based on a claimant’s perception that they may be “unfair.”  Rather, the doctrine provides claimants with the procedural protection of requiring that they receive notice and an opportunity to be heard, not just once, but “at virtually every step in the process.”  Thurber, 5 Vet. App. at 123.

In order to follow this regulatory mandate, a hearing officer “cannot ignore a lack of evidence in the record on a material issue and not suggest its submission, unless the record (or the claimant at hearing) clearly shows that such evidence is not available.”  Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010) (per curiam).  In regard to the duty to explain issues fully, the Court has stated that when the RO has denied a disability claim because there is no current disability, no nexus to service, or no incident in service, etc., then the Board hearing officer should explain that the claim can be substantiated only when the claimed disability is shown to exist and shown to be caused by an injury or disease in service, and the Board hearing officer’s explanation and discussion should be centered on these issues.  Bryant, 23 Vet. App. at 496.  In regard to the duty to suggest the submission of overlooked evidence, the Court in Bryant clarified that “nothing in the regulation limits the Secretary’s duties to advise the claimant to submit evidence only to those situations when the existence of such evidence is raised at the hearing;” rather, the hearing officer “must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record.” Bryant, 23 Vet. App. at 496- 97.

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How Due Process Works in Veterans Disability Compensation Claims

The entire thrust of the VA’s nonadversarial claims system is predicated upon a structure which provides for notice and an opportunity to be heard at virtually every step in the process.  The Secretary shall provide notice of a decision regarding a claim for benefits and “an explanation of the procedure for obtaining review of that decision.”  38 U.S.C. § 5104(a); see Rosler v. Derwinski, 1 Vet. App. 241, 249 (1991).  “Each appellant will be accorded hearing and representation rights pursuant to the provisions of [38 U.S.C. Chapter 71] and regulations of the Secretary.”  38 U.S.C. § 7105(a).  The VA regional office (RO) must provide notice of the right to appeal in regular and in simultaneously contested claims.  38 C.F.R. §§ 19.25, 19.100.

In simultaneously contested claims, the VARO must provide notice of appeal to other contesting parties.  38 C.F.R. § 19.102.  It must provide notification of the filing of an administrative appeal.  38 C.F.R. § 19.52.  It must furnish a Statement of the Case (SOC) to a claimant, 38 C.F.R. § 19.30, which “must be complete enough to allow … appellant to present written and/or oral arguments before the [BVA].”  38 C.F.R. § 19.29.  In simultaneously contested claims, each interested party must be furnished with an SOC.  38 U.S.C. § 7105A; 38 C.F.R. § 19.101.

A Supplemental SOC (a “SSOC”) is required when an appellant submits additional evidence to the VARO prior to the transfer of appellant’s records to the BVA, 38 C.F.R. § 19.37(a), and when a BVA remand of a case to the VARO results in additional evidentiary or procedural development and continuation of the denial of benefits, 38 C.F.R. § 19.38; see generally 38 C.F.R. § 19.31 (“a period of 60 days … will be allowed for response”); 38 C.F.R. § 20.302(c) (but only 30 days, in the case of a simultaneously contested claim, 38 C.F.R. § 20.501(c)).

If the BVA questions the adequacy of appellant’s substantive appeal, appellant is provided “notice … and a period of 60 days … to present written argument or to request a hearing to present oral argument.”  38 C.F.R. § 20.203.  The Board shall decide an appeal “only after affording the claimant an opportunity for a hearing.”  38 U.S.C. § 7104(a).  In connection with the right to a hearing, a claimant has the right to present evidence, testimony, and argument in support of a claim.  38 C.F.R. § 20.700.

A claimant has the right to notification of the time and place of the hearing on appeal.  38 C.F.R. § 20.702(b).  A claimant has the right to notification of the certification of appeal and transfer of the appellate record to the BVA.  38 C.F.R. § 19.36.  If a “Travel Board” hearing is held, a claimant must be notified of its time and place.  38 C.F.R. § 19.76.  When a “Travel Board” hearing is requested, a claimant must be furnished with an SOC if not previously furnished.  38 C.F.R. § 19.77.

“After reaching a decision in a case, the Board shall promptly mail a copy of its written decision to the claimant.”  38 U.S.C. § 7104(e).  A claimant is entitled to a hearing if a motion for reconsideration of a final BVA decision is granted.  38 C.F.R. § 20.1003.  The BVA may vacate an appellate decision which denies “due process of law” upon the request of appellant, or on the BVA’s own motion.  38 C.F.R. § 20.904.  Thurber v. Brown, 5 Vet. App. 119, 123-24 (1993).

As written, the due process provisions of 38 C.F.R. section 3.103 apply only to benefits and relief under part 3 of title 38 of the Code of Federal Regulations.  Part 3 is entitled “ADJUDICATION,” and is divided into two subparts: subpart A, which deals with compensation, pension, and DIC, and subpart B, which deals with burial benefits.  As written, section 3.103(b)(2) requires pre-termination/reduction notice only where there is a termination or reduction of an “award of compensation, pension or [DIC].”  Grovhoug v. Brown, 7 Vet. App. 209, 214 (1994).

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision!

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For Cases & Decisions that Could Save Your VA Service-Connected Claims!

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