case studies that (should) matter to the cvso nacvso annual training conference grand rapids, mi –...

CASE STUDIES THAT (SHOULD) MATTER

TO THE CVSO NACVSO Annual Training Conference

Grand Rapids, MI – June 12, 2014

Presenter:

Katrina J. Eagle,

Veterans Law Attorney

10755 Scripps Poway Parkway; no. 353San Diego, CA 92131858.549.1561

[email protected]

After Monday

and Tuesday, even

the calendar

says…WTF!!

-- Anonymous-- Anonymous

The Concepts:

1. Presumption of Soundness2. Presumption of AO Exposure

Outside of VN3. Benefit of the Doubt4. Individual Unemployability5. Last but not least…

REPRESENTING THE MILITARY VETERAN

June 12, 2014NACVSO – Grand Rapids, MI

Presumption of Soundness:

Which of 3 basic criteria for service connection does POS relate to?

38 U.S.C. section 1111 says:




38 U.S.C. section 1111 says:

Every veteran is presumed to have been in sound condition when examined, accepted, and enrolled in military service, except as to defects, infirmities, or disorders noted at time of exam.




Which of 3 basic criteria does POS relate to?

2nd prong, i.e., “evidence of in-service occurrence or aggravation of disease or injury”

And, POS does not relieve requirements for evidence of other criteria




What about when evidence shows that in-service injury EPTS? How does POS potentially help veteran?

Because once POS attaches…



Presumption of Soundness:Once a veteran is presumed sound, it

can only be rebutted if VA Secretary produces clear and convincing evidence of 2 things:

1.Injury pre-existed service; AND2.Injury NOT aggravated by service




To be clear, it is NOT the veteran’s job to produce evidence that the pre-existing condition was aggravated; rather…



Presumption of Soundness:It is the Secretary’s BURDEN

to show by CLEAR AND UNMISTAKABLE EVIDENCE it was not.

Horn v. Shinseki, 25 Vet. App. 231 (2012)



Presumption of Soundness:To be even clearer, when an injury

has been shown as pre-existing service, it will be considered to have been aggravated in service unless VA establishes by clear and unmistakable evidence that there was no increase in disability or that the increase was due to natural progression.



Presumption of Soundness:Veterans Court in Horn held: “VA may

not rest on notion that the record contains insufficient evidence of aggravation” and

“Secretary’s failure to produce C&UE of lack of aggravation entitles claimant to a finding of in-service aggravation of pre-existing condition.”



Presumption of Soundness:Veterans Court in Horn rejected the

Board’s reliance on the absence of evidence of aggravation because “in the POS context, such reliance effects an impermissible burden shift” because it “requires the Veteran to generate postservice medical evidence to prove the aggravation that is to be presumed.”



Presumptions (TWO!) Applicable to Claims for AO-Related Medical Conditions:1. Presumption of Exposure to

Herbicides2. Presumption of Service

Connection for Diseases Associated With Herbicide Exposure



Presumption of Exposure to Herbicides: “Boots to ground” in VN b/n

1.9.1962 and 5.7.1975 38 CFR sect 3.307(a)(6)(iii)

VN = landmass, inland waters, and certain ships



Presumption of Exposure to Herbicides: Which of 3 basic criteria for

service connection does it relate to?

2nd prong: relieves veteran of presenting evidence of actual incurrence or aggravation of disease



Presumption of Exposure to Herbicides: What about Veterans who do

not qualify for presumption of herbicide exposure?

Present evidence of actual, direct exposure



Presumption of Service Connection: Presumption is “not the

exclusive means of proof” I.e., presumptive service

connection vs. direct service connection

Combee v Brown, 34 F.3d 1039 (Fed. Cir. 1994)



Presumption of Exposure to Herbicides: Once a Veteran establishes

exposure to herbicides – presumed or actual – then 2nd PRESUMPTION may apply…



Presumption of Exposure to Herbicides: Presumption of service

connection for diseases associated with AO exposure applies to BOTH:

1. Veterans presumed AO exposed 2. Veterans who show actual AO

exposure



Presumption of Exposure to Herbicides: If Veteran exposed AND suffers

AO-presumed condition, then presumed service connected unless VA can rebut.

38 CFR sect. 3.307(a)(6) 38 CFR sect. 3.309(e)



Presumption of Service Connection: Which of 3 basic criteria for

service connection does it relate to?

3rd prong: relieves veteran of presenting evidence of medical nexus b/n in-service AO exposure and specified diseases or conditions



Benefit of the Doubt:

What it is NOT

What it is…


38 USC section 5107(b):“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 CFR section 3.102:“When, after careful consideration of

all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.”


Wise v. Shinseki, 26 Vet. App. 517:Mr. George W. Wise, late-veteran

100% service-connected PTSD since 2000passed in Nov 2008, arrhythmia due to

arteriosclerotic cardiovascular disease Ouida Wise, widow

files for DIC in Dec 2008Medical opinion by treating doc and

supporting articlesBVA hearing, 3 more articles, 2nd MNOBVA secures “expert opinion”


Benefit of the Doubt: Wise v. Shinseki: “Congress has not mandated that a

medical principle needed to have reached the level of scientific consensus to support a claim for VA benefits. Instead, Congress has authorized VA to resolve a scientific or medical question in the claimant’s favor so long as evidence for and against that question is in “approximate balance.” Imposing a higher standard of proof would be counter to the benefit of the doubt rule.”

“approximate balance” = tie goes to the veteran


Individual Unemployability:

1.When must IU be considered?

2.Proper Assessment of Evidence of IU


When is VA required to consider entitlement to IU?

Rice v. Shinseki, 22 Vet. App. 447 (2009):

“A request for IU is best understood as part of an initial claim for VA disability compensation . . . or as a particular type of claim for increased compensation.”



Roberson v. Principi (251 F.3d 1378) (Fed. Cir. 2011):

Once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and submits evidence of unemployability, the ‘identify the benefit sought’ requirement is met and VA must consider IU.

“An award of IU does not require a showing of 100% unemployability.”



When is VA required to consider entitlement to IU?

Record must include “cogent evidence” of unemployability

1. Statements submitted to VA2. Responses to VA examiner3. VA Form 21-8940



How VA is to consider IU:

“Entitlement to IU is based on an individual’s particular circumstances.” Rice at 447

VA must take into account the veteran’s:

1. Eduction2. Training3. Work history (Hatlestad (1991))




“To merely allude to educational and occupational history, attempt in no way to relate these factors to the disabilities of the appellant, and conclude that some form of employment is available, comes very close to placing upon the appellant the burden of showing he can’t get work.” (Gleicher (1991))




“VA may not reject a claim for TDIU without producing evidence, as distinguished from mere conjecture, that the veteran can perform work that would produce sufficient income to be other than marginal.” (Beaty v. Brown (1994))



How VA is to consider IU:Marginal employment ≠ substantially

gainful employment (38 CFR sect 4.16(a))Requiring a veteran to prove that he is

100% unemployable is different than requiring the veteran to prove that he cannot maintain ‘substantial gainful employment.’” Roberson (Fed Cir 2011)

NO “Total occupational impairment”!!



Miscellaneous Final Points:Lay evidence can support a claim/appeal!

Jandreau v. Nicholson: “Lay E can be competent and sufficient to establish a Dx of a condition when lay testimony describes symptoms that are observed at the time they were experienced, and that later support a medical diagnosis.”

DeLisio v. Shinseki (2011): “Entitlement to benefits does not arise with medical Dx, but with manifestations of the condition and filing of claim.”


Miscellaneous Final Points: Refiling vs. Appeal to BVA (do you have

client’s informed consent??)

If use new NOD form, then “full monty”

“Reconsideration” vs NOD

Proper rules for reducing veteran’s disability rating


Assisting Veterans is a Team Effort: 1. CVSO’s are not magicians; neither are

Veterans Law Attorneys

2. Utilize Your Strengths; Consult With Colleagues When Necessary

3. How can knowledgeable attorneys help CVSO’s and their clients?



Katrina’s Contact Information:

10755 Scripps Poway Parkway; No. 353San Diego, CA 92131

858.549.1561 (ph) / 858.549.1167 (fax)

[email protected]


case studies that (should) matter to the cvso nacvso annual training conference grand rapids, mi –...

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