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Dean

Updated Law For T.d.i.u.

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Law Update & Practice

The Veterans Law Group (VLG) introduces the Law Update as a permanent section to its website. The Law Update is designed to cover some of the major changes in veterans’ disability law since 2003. For the most part, this section is intended for veterans service officers (VSOs), who represent disabled veterans or their survivors/dependents before the Regional Offices and the Board of Veterans’ Appeals. The Law Update offers a brief abstract of the new case, statute, regulation or General Counsel Opinion, with a practice note on each.

The Law Update does not cover all of the recent changes in veterans’ disability law. Indeed, it purposefully limits its discussion to those legal developments, which VLG believes are the most important to VSOs in representing their clients. Further, not all aspects of a new case or statute are discussed; rather, only those part(s) which are particularly relevant to the general representation of disabled veterans and their survivors/dependents.

VLG advises that representatives should not rely upon the Law Update as a complete guide for representing their clients, but should consider it as one source to keep current on some of the changes in veterans’ disability law.

A. FEDERAL CIRCUIT COURT OF APPEALS

1. Disabled American Veterans v. Sec. of Veterans Affairs, 327 F.3d 1339 (Fed.Cir. 2003) (The Federal Circuit held that 38 C.F.R. § 19.9(a)(2) was invalid. § 19.9(a)(2) permitted the BVA to obtain evidence and adjudicate an issue not previously considered by the regional office.).

Practice Note: To comply with the DAV case, the Board has recently created a separate department called the Appellate Management Team. It performs many of the same functions of a regional office, setting up medical examinations and developing other types of evidence.

2. Paralyzed Veterans of America v. Sec. of Veterans Affairs, 345 F.3d 1334 (Fed.Cir. 2003) (The Federal Circuit decided that 38 C.F.R. § 3.159(b)(1) is invalid. § 3.159(b)(1) implemented the VA’s duty to notify claimants of necessary information and evidence pursuant to 38 U.S.C. § 5103. Under § 5103 and § 3.159(b)(1), the claimant is generally given one year from the date of the notice in which to submit evidence. However, § 3.159(b)(1) also permitted the VA to adjudicate the claim before the one-year period if the claimant had not responded to the notice within thirty days. In light of these conflicting time frames, the Federal Circuit held that , § 3.159(b)(1) was a valid implementation of the statute.)

Practice Note: Many of the regional offices may not be aware of this holding. Be sure to keep an eye on any VA notices pursuant to § 5103 which restrict the veteran’s time frame to submit evidence one-year following the notice.

3. Szemraj v. Principi, 357 F.3d 1370 (Fed.Cir. 2004); Moody v. Principi, 360 F.3d 1306 (Fed.Cir. 2004) (In both cases, the Federal Circuit decided that the VA must give a liberal reading to all pro se pleadings submitted by veterans.)

Practice Note: Szemraj and Moody are two decisions with great potential. For years now, the CAVC cases have undermined the concept that a veteran’s pleading should be sympathetically read, and that the VA should consider all potential claims raised by the record. We all know that veterans are not experts in drafting pleadings, nor should we expect them to be.

4. Barrett v. Principi, 363 F.3d 1316 (Fed.Cir. 2004) (The Federal Circuit held that mental incapacity could be a basis to toll the 120-day time period for filing a Notice of Appeal at the CAVC following an adverse BVA decision. The Court stated that the veteran must establish that his psychological disability made him incapable of rational thought or deliberate decision making, or rendered him unable to function in society.).

Practice Note: Barrett is a very important case. Barrett stands for the broad proposition that any time period for filing a written submission (e.g. one-year period for filing a Notice of Disagreement) can be tolled or extended based upon a sufficient showing of the veteran’s psychological disability.

B. COURT OF APPEALS FOR VETERANS CLAIMS

1. Brambley v. Principi, 17 Vet.App. 20, 23-25 (2003) (CAVC clarifies that 38 C.F.R. § 3.321(b)(1) obligates the VA to consider an extra-schedular rating as part of a claim for an increased-evaluation for service-connected disability. As with any disability claim, VA must ensure that an adjudication of a claim for an extra-schedular rating is based upon a fully developed medical record; specifically here, a complete picture of the veteran’s service-connected disabilities and their effect on his employment.).

Practice Note: An extra-schedular theory for a higher disability rating is often overlooked. If the claims file shows that the veteran’s disability(ies) is preventing, or substantially interfering with, his or her ability to work, then the veteran’s representative should press for a higher rating based upon a theory of an extra-schedular disability rating. Remember that a theory of total disability rating due to a veteran’s unemployability based on an extra-schedular rating is available to a veteran, even though he or she might not meet the percentage disability requirements for a traditional TDIU claim. See Bowling v. Principi, 15 Vet.App. 1, 6 (2001); 38 C.F.R. § 4.16(b).

2. Davis v. Principi, 17 Vet.App. 54, 57 (2003) (CAVC vacated Board decision denying the claim for service-connected substance abuse. In that case, the veteran alleged that his substance abuse was caused by the VA’s in-service methadone treatment. The Court noted that, while primary substance abuse can never be service-related, a theory of secondary service-connection can be a valid basis for finding service-related substance abuse.).

Practice Note: Davis illustrates an important principle of secondary service connection. Many disabilities, including physical and psychological disabilities, which do not appear to be service-related, may be service-connected on a secondary basis. For example, if a veteran has service-connected leg disability, which, over time, causes a back disability, the back disability can be found service-related on a secondary theory.

3. Moran v. Principi, 17 Vet.App. 149, 154 (2003) (CAVC vacates Board decision for its failure to consider the veteran’s allegations of combat as a basis for corroborating an alleged stressor for a PTSD claim.)

Practice Note: PTSD claims, in general, require: 1) a current diagnosis of PTSD, 2) medical evidence of a nexus between the claimed stressor and the PTSD condition, and 3) credible supporting evidence that the alleged in-service stressor occurred. As to the third requirement, a determination of combat status gives rise to a nearly conclusive presumption that the in-service stressor occurred. Often combat status is determined by the veteran’s medals or decorations, but, as Moran points out, a veteran’s statements can also be a basis to find combat status.

4. Jeffcoat v. Principi, 17 Vet.App. 213, 219 (2003) (CAVC vacates Board decision in part because of the VA’s failure to comply with the previous Board remand instructions.).

Practice Note: In Stegall v. West, 11 Vet.App. 268, 271 (1998), the CAVC set forth a very important proposition. The Court held that a veteran has an absolute right to compliance with the instructions of any previous remand from the Board or the Court. Thus, a veteran’s representative should carefully look through a veteran’s claims file to see if there are any previous BVA or Court remand orders. If so, look carefully at the remand instructions, (e.g., instructions to obtain another medical examination, to obtain military or private medical records or documents, etc…), and make sure the VA complies with these instructions.).

5. Pelegrini v. Principi, 18 Vet.App. 112 (2004) (CAVC elaborated on the new notice requirements under 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). These sections together require, among other things, that the VA notify the veteran: 1) what evidence is necessary to substantiate his claim, 2) who will be responsible for obtaining this evidence, and 3) to submit any evidence in his possession that pertains to the claim. In Pelegrini, the Court held that the VA was obligated to provide this notice prior to an initial adverse decision by the Regional Office’s adjudicating officer.).

Practice Note: Pelegrini is an important case, as it takes the VCAA notice requirement one step further. Now, the VA must provide notice before the ALJ issues the first rating decision, denying the veteran’s claim.

6. Pelegrini v. Principi, 3 Vet.App. 269, 272 (1992), where, in discussing the requirements for a TDIU rating in a case where a veteran had both service-connected and nonservice-connected disabilities, the Court of Appeals for Veterans Claims stated: Under 38 C.F.R. § 4.16(a), a determination concerning unemployability indeed must be made on the basis of service-connected disabilities alone; “nonservice-connected disabilities...will be disregarded.” Even if, as it appears, the BVA determined that appellant’s unemployability was a result of his age and nonservice-connected [conditions], its task was not finished. The BVA still was required to decide, without regard to the nonservice-connected disabilities or his age, whether appellant’s service-connected disabilities are sufficiently incapacitating as to render him unemployable.

6. Bowling v. Principi, 15 Vet.App. 1, 5-6 (2001), the Court of Appeals for Veterans Claims made clear that so long as there is evidence of unemployability in the record, a claimant may be entitled to TDIU award under 38 C.F.R. § 4.16(b), even though the claimant does not meet the percentage disability requirements under 38 C.F.R. § 4.16(a).

C. GENERAL COUNSEL’S PUBLISHED OPINIONS (From time to time, the General Counsel’s Office of the Veterans Administration publishes opinions on the interpretation or application of statutes or regulations. These opinions are considered binding precedent with respect to all claims pending before the regional offices and the Board of Veterans’ Appeals.)

1. VAOPGCPREC 6-2003 (This opinion addresses whether a veteran’s tobacco-related disability or death may be service connected secondary to a service-connected mental disability, which caused the veteran to use tobacco. 38 U.S.C. § 1103(a) prohibits a finding of service connection of a disability or death resulting from the veteran’s use of tobacco during his service. The General Counsel opinion, however, clarifies that service connection is permissible if the veteran’s disability or death is the result of his post-service use of tobacco, which is caused by a service-connected psychological disability.)

Practice Note: Representatives should keep this General Counsel opinion in mind when handling PTSD and other mental disability claims. Many emotional disorders and disabilities can lead to the veteran’s chronic tobacco use after service in much the same way that emotional disabilities can lead to veteran’s “self-medication” (drug or alcohol abuse) following service. Of course, there must be medical evidence in the record supporting this secondary theory of service-connected disability or death.)

2. VAOPCGPREC 3-2003 (This opinion discusses whether a claimant is required to show that the disease or injury increased in severity during service before the presumption of aggravation applies. 38 U.S.C. § 1111 provides that a veteran will be presumed in sound condition if his entrance examination does not note any relevant defects, diseases or conditions. The statute further provides that this presumption may be rebutted by clear and unmistakable evidence of both 1) that the condition existed prior to service, and 2) that it was not aggravated by service. However, 38 C.F.R. § 3.306(b) imposes an additional requirement on the claimant in order to receive the presumption in cases of aggravation. § 3.306(b) requires the claimant to show that the pre-existing condition increased in severity during service. The General Counsel opinion determines that this part of the regulation is invalid, as it is inconsistent with 38 U.S.C. § 1111.)

Practice Note: VAOPCGPREC 3-2003 is a new General Counsel opinion, of which many of the regional offices may not be aware. Therefore, be on the look out for claims which have been denied on the basis that there was no evidence of increased disability during service. This showing is no longer required to obtain the favorable presumption.

D. STATUTES

1. Amendment to 38 U.S.C. § 1116(a)(F) (This amendment eliminates the requirement that respiratory cancer (cancers of the lung, bronchus, larynx, trachea) becomes manifest within 30 years of the veteran’s departure from Vietnam to qualify for the presumption of service connection based on exposure to herbicides such as Agent Orange. This amendment also broadens the presumption of exposure to herbicides to include all Vietnam veterans, not just those who have a presumptively service-connected disease).

Practice Note: This amendment covers two different aspects of a toxic exposure claim. First, a veteran must establish that his exposure to the toxin must have occurred in service. Second, he must prove that his current disease or disability is related to the in-service toxic exposure. With respect to some claims, such as those outlined in listed in § 1116(a)(F), the VA will presume in-service exposure and/or service connection.

2. Amendment to 38 U.S.C. § 5121(a) (VA law makes clear that a veterans’ pending disability claim terminates upon the veteran’s death. However, a survivor of the veteran (such as a surviving spouse, child, or parent) may file a so-called “accrued benefits” claims. In this action, the survivor continues the veteran’s disability claim under the survivor’s name, typically arguing the same theories and relying upon the same evidence. Until recently, 38 U.S.C. § 5121(a) provided a two-year maximum cap on the amount of accrued benefits which could be recovered. The recent amendment to § 5121(a) removes this two-year limitation. Now, a survivor can receive the full measure of retroactive, unpaid accrued benefits, if he or she prevails in the survivor claim.

Practice Note: Be advised that the amendment was not made retroactive, and thus only applies to survivor claims in which the veteran died on or after December 16, 2003, the date of the enactment of the amendment.

E. REGULATIONS

1. Amendment to 38 C.F.R. § 4.71a (Diagnostic Codes 5235-5243) (These diagnostic codes set forth the criteria for rating spinal disabilities. Prior to the amendment, the applicable diagnostic codes, 5285-5295, were fairly general and unrestrictive. In particular, diagnostic code 5293 permitted disability ratings of up to 60%, without having to show specific medical findings of motion and functional loss or physical incapacity. The new diagnostic codes have raised the bar, requiring specific and measurable medical findings of motion loss and/or incapacitating episodes.)

Practice Note: The new diagnostic codes were not made retroactive, and therefore claims pending during their promulgation should not be governed by these more restrictive codes. Separately, the representative should always keep in mind the TDIU theory for back claims. More often than not, severe back disabilities prevent, or at least seriously impair, the veteran’s ability to work. If a veteran cannot work due to his back problems, then regardless of the veteran’s scheduler disability rating, the representative should press for a total disability rating based upon unemployability.).

2. 38 C.F.R. § 20.900 (The amendment provides that a claim sitting at the Board may be advanced on the docket for adjudication due to the advanced age of the veteran.).

Practice Note: This is an important amendment to keep in mind. A veteran’s claim dies with the veteran. Therefore it is important to move his or her case along as quickly as possible. But the representative must make a written request under § 20.900 to expedite the claim. The Board will not do it on its own initiative.

3. 38 U.S.C 4.16(b) provides for an award on TDIU, even if a claimant does not meet the 60% disability requirements § 4.16(a): It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a).

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good stuff, thanks dean.

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Dean,

I happen to come across your post, and the part C2 interest me very much. This may really help me as I had a pre-existing condition when I was invited to join the military. I always thought that I had to prove the military aggravated the condition, which to me is extremely hard to do. Now, the VA must provide evidence that it was not aggravated by the service. My condition is Hereditary Angioedema, but I did not know the name of the condition prior to my military service entrance exams. The medical people at the entrance exam actually laughed, and told me to get my a## in the next line and bend over. No test whatsoever was done. I had horrible medical care during my military service, and had to get Congressman Hamilton to help me get out of a pole climbing class. The military sent me to a shrink, as they thought I had mental issues. After they got done with me, I did.

Papa

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2. Paralyzed Veterans of America v. Sec. of Veterans Affairs, 345 F.3d 1334 (Fed.Cir. 2003) (The Federal Circuit decided that 38 C.F.R. § 3.159(b)(1) is invalid. § 3.159(b)(1) implemented the VA's duty to notify claimants of necessary information and evidence pursuant to 38 U.S.C. § 5103. Under § 5103 and § 3.159(b)(1), the claimant is generally given one year from the date of the notice in which to submit evidence. However, § 3.159(b)(1) also permitted the VA to adjudicate the claim before the one-year period if the claimant had not responded to the notice within thirty days. In light of these conflicting time frames, the Federal Circuit held that , § 3.159(b)(1) was a valid implementation of the statute.)

Practice Note: Many of the regional offices may not be aware of this holding. Be sure to keep an eye on any VA notices pursuant to § 5103 which restrict the veteran's time frame to submit evidence one-year following the notice.

Great post!

I am a little confused about #2. It seems to say first that the Federal Circuit found 3.159(b)(1) is invalid. Further in the paragraph, it states that the court held that it "was a valid implementation of the statute". I'm sure I am missing something, but, is 3.159(b)(1) still a valid rule or not?

Thanks again - this is helpful.

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