The Law Of Veterans’ Benefits 2008-2010: Significant Developments, Trends, And A Glimpse Into The Future

[rakkwarrior]

I spoke in another thread regarding precedent court decisions. Here is a link to the Veterans' Law Review. this will guide the reader into the implications of such precedent decisions and how they will affect the VBA in the coming years. Some of the Court cases I spoke of in my other thread, are found here.

http://www.bva.va.gov/docs/VLR_VOL3/1-Allen-TheLawofVeteransBenefitsPages1-66.pdf

Feel free to comment, this is an open discussion. I am not an "expert" in VA law, I am a student of the ever developing system which affects my comrades...brothers and sisters. I firmly believe no matter how much you, know, or how degreed you are, when you stop learning and think you "know it all" you have lost the war, no matter how many fights you have won henceforth.

[Berta]

Yes I agree with you Rakk and thanks again for another very informative post.

Precedent General Counsel Opinions are also excellent sources too.

Your presence here is very welcome and enlightening.I put one of your post links into the DIC form.

BTW I heard from a veteran who has someone interested in becoming an NSO.

I have sent her info from the DAV web site as to their NSO program.

I assume and could be all wrong but doesn't one need to be hired by a major vet org before they can even attempt to become an NSO?

I know the DAV has a rigid training program and they probably start with the same Basic Training Cert I got from NVLSP and then there is the seminar stuff etc etc.LOTS to it. Also I did some volunteer work for my former POA with State of NY who kept urging me to apply for a vet rep job. But I learned the state requires only vets and not civilians to become Vet reps.

I wasn't interested at all as I am retired but I expect to hear soon from this woman who is interested in NSO position (this was third party email and I dont now her) and I am referring her to the DAV web site and a few other sites as to NSO qualifications and to us here too.

Thanks for any input.

[Berta]

Re Tyrues:

I think Tyrues was doomed from the start.

I also think many initial claims are simply not worded correctly and thus things can go haywire.

There really isnt any VA rating for Gulf War Syndrome and the regs have been posted at hadit many times as to what a qualifying GW disability is.And I also added the 9 new presumptives to that topic last year.

Also Tyrues lung claim might have been claimed or construed as a secondary to the GW illness claim.

Or possibly he did not articulate more beyond stating a lung condition. ?

Of course the key issue is this:

“the Veteran did not appeal, “thus no court jurisdiction was possible."

“The majority of the en banc Court concluded that it did not

have jurisdiction to consider the 1998 Board decision concerning

the Veteran’s lung condition.51 The Court found that it did not

need to consider whether the two matters constituted a single

“claim.”52 Rather, it held that the key to its decision was that “this

Court’s jurisdiction is controlled by whether the Board issued a

‘final decision’ – i.e., denied relief by either denying a claim or

a specific theory in support of a claim and provided the claimant

with notice of appellate rights.”53 Because the 1998 decision was

one that denied relief, the Veteran was provided appellate rights

with respect to that denial, but since the Veteran did not appeal, the

Court held it lacked jurisdiction to consider the matters at issue in

that decision.”

re: Jones V Shinseki

“The examiner may also have an obligation to

conduct research in the medical literature depending on

the evidence in the record at the time of examination.

The phrase “without resort to speculation” should reflect

the limitations of knowledge in the medical community

at large and not those of a particular examiner”

More and more in the last few years I have seen C & P doctors squeezing out of a detailed opinion by stating that they wold "have to resort to mere speculation".

The BVA completely disregarded an Opinion I got like this and favored the 3 IMOs I already had.

I think this phrase has become a VA C & P mantra because some VA C & P doctors are unwilling to support claims based on the evidence in the clinical record.I laughed when I saw the last C & P doc say this regarding my and I quickly filed a response based on medical fact.

A suggestion of a mere speculation opinion isn't an opinion at all.This type of VA BS might not help a claim but might not hurt the claim.

A strong IMO can overcome this type of 'opinion'.Even common sense can sometimes.

quote source http://www.bva.va.gov/docs/VLR_VOL3/1-Allen-TheLawofVeteransBenefitsPages1-66.pdf

Is it just me or have others here noticed how quick VA docs use the 'mere speculation" BS these days?

Maybe it is because when BVA remands a claim for a specific type of doctor's opinion, you might find a PA or RN wrote the opinion and therefore they might lack any expertise beyond mere speculation.As soon as I heard a PA was doing the cardio opinion BVA had remanded my claim for I ordered a cardio IMO opinion.The BVA award letter arrived before the cardio had time to even prepare the IMO.I already had prime facie medical opinions that warranted the award=I guess the PA didnt even read them.

[rakkwarrior]

To become an NSO a veteran only needs to be an honorably discharged service-connected disabled veteran with at least 16 months eligibility under Voc Rehab, Ch. 31. We do a local interview, recommendation, and they are then asked to attend a panel interview in Washington D.C. with our National Service staff. If selected they will begin a 16 month OJT program.

Other than the aforementioned, we do not require anything more than aptitude and behavioral testing/assessment to ensure they have the basic qualities we are looking for.

[rakkwarrior]

"A suggestion of a mere speculation opinion isn't an opinion at all.This type of VA BS might not help a claim but might not hurt the claim."

Thus the reason the VA can no longer merely cite, "cannot provide an opinion without resorting to mere speculation" without providing a rationale as to why "mere speculation" is the basis for the opinion. The Jones decision is crucial because as you said an adequate medical opinion, or series of medical opinions will lend incredible weight to a favorable decision.

Keep in mind the Court's precedent in Nieves-Rodriguez v. Peake wherein the Court provided (citations not omitted),

"Both VA medical examiners and private physicians offering medical opinions in veterans

benefits cases are nothing more or less than expert witnesses. While the Federal Rules of Evidence

are not binding in this Court, nor on the Board, the rules on expert witness testimony provide useful

guidance that has been exhaustively vetted by both the Rules Advisory Committee and by the U.S.

Congress. In U.S. district courts, expert testimony may be received from a suitably qualified expert

under the following conditions: (1) The testimony is based upon sufficient facts or data; (2) the

testimony is the product of reliable principles and methods; and (3) the expert witness has applied

the principles and methods reliably to the facts of the case. See FED. R. EVID. 702. The Court agrees

that these are important, guiding factors to be used by the Board in evaluating the probative value

of medical opinion evidence, and that this Court's review of the Board's evaluation of competing

medical opinions will be enhanced by their application."

Note the discussion of the Federal Rules of Evidence-702, The Court then opined,

"In this inquiry, the claims file is not a magical or talismanic set of documents, but rather a tool to assist

VA examiners to become familiar with the facts necessary to form an expert opinion to assist the adjudicator

in making a decision on a claim. There are other means by which a private physician can become aware of

critical medical facts, not the least of which is by treating the claimant for an extended period of

time. See, e.g., Kowalski, 19 Vet.App. at 179 (holding that the Board may rely on a private medical

opinion that is based on an accurate medical history offered by the veteran). Review of pertinent

medical literature may also furnish information relevant to diagnostic and nexus issues."

"The mere statement that one physician did or did not have access to a claims file is of little

use in providing adequate reasons or bases for a decision where the Board fails to explain what

information in the claims file was important and necessary for a competent and persuasive medical

opinion, and why the absence of record review detracts from the probative value of the opinion of

a physician."

The relevant discussion here is that A REVIEW OF THE CLAIMS FILE does not automatically hold a VA examiner's opinion presumptively greater value than that of a private provider, given the provider is duly informed of the relevant facts necessary to support their ultimate conclusion. An excellent tool is to consider the independent medical opinion's values in accordance with the Federal Rules of evidence, while not the gold Standard in prosecuting cases under VA law, you will never be penalized for having a more thorough opinion conforming with the Rule, than an opinion which does not conform to said rule.

In the end, even the newest VA adjudicator will have to consider the application of Nieves-Rodriguez, especially if this is brought to bear during the initial claims process. We at DAV do often provide such written argument so that it will not be overlooked when the claim is an issue of controversy, and the medical evidence is incontrovertible and fully justifies a grant for the issue as sought. Be careful however, when prosecuting claims as due to exposure such as Agent Orange where presumptive provision have been applied to some conditions, where other have been ruled out. See the CAVC's opinion in Povolick v. Shinseki (2009).

[Tbird]

Thanks for that link. I've added to our home page http://www.hadit.com

I spoke in another thread regarding precedent court decisions. Here is a link to the Veterans' Law Review. this will guide the reader into the implications of such precedent decisions and how they will affect the VBA in the coming years. Some of the Court cases I spoke of in my other thread, are found here.

http://www.bva.va.go...tsPages1-66.pdf

Feel free to comment, this is an open discussion. I am not an "expert" in VA law, I am a student of the ever developing system which affects my comrades...brothers and sisters. I firmly believe no matter how much you, know, or how degreed you are, when you stop learning and think you "know it all" you have lost the war, no matter how many fights you have won henceforth.

[Vync]

I'm no expert, but would 'mere speculation' represent 50/50, as in maybe, maybe not? If that is the case, would arguing relative equipoise be a good idea?