free_spirit_etc

http://www.hadit.com/2007/ratingreduction.htm 5.9.4 Rating Reduction in Unprotected Cases (Cases Involving Disabilities Where the Veteran Does Not Have Either a Total Disability or a Disability Rating That Has Been in Effect for Five Years or More) Although the protections discussed above in Sections 5.9.2 and 5.9.3 are limited to total (100%) disabilities and disabilities where the rating has been in effect for five years or more,453 the advocate may still wish to argue that other VA regulations and substantive rules protect a disability rating from being reduced. In Faust v. West,454 the CAVC made clear that the VA is required to comply with several general VA regulations regardless of the rating level or the length of time that the rating has been in effect. For example: · Any proposed reduction must be based upon review of the entire history of the veteran's disability; · The VA must determine whether there has been an actual change in the disability; · Any improvement must reflect an improvement in the veteran's ability to function under the ordinary conditions of life and work; and · Examination reports reflecting any such change must be based on thorough examinations. **Advocacy Tip** The following argument includes boilerplate language that an advocate may wish to use in such a case. VA regulations impose a duty on the VA to make an explicit finding that the preponderance of evidence shows that there has been improvement in any disability rating that the VA proposes to reduce. Specifically, 38 C.F.R. § 4.1 (2002) states that "t is . . . essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history." Similarly, 38 C.F.R. § 4.2 (2002) establishes that "t is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present." These provisions impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the veteran's disability. . . . Furthermore, 38 C.F.R. 4.13 (2002) provides: "When any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms." Pursuant to these provisions, it is obvious that in any rating-reduction case, the RO and BVA are required to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.455 Thus, the VA is required to review the entire evidence of record and to determine and make an explicit finding as to whether the evidence shows that there is an actual improvement in a veteran's disability since the last rating decision which either granted or continued the disability rating before the VA may reduce the disability rating. In addition to these VA regulations, the Manual M21-1, Part VI, paras. 9.03(a) and (f) requires the VA to make findings that the evidence demonstrates improvement before a rating reduction is made. It states the following: Reasons And Bases. An examination which is the basis for reduction must be as thorough as the examination which established the current rating. Cite the symptoms and the findings demonstrating improvement in the context of the whole recorded history and evidence of improved ability to function under the ordinary conditions of life and work.. [sic] In psychiatric cases, outline social and economic adjustments along with the other evidence warranting the reduced evaluation. . . . [sic] (emphasis added). Thus, the Manual M21-1 also requires a finding of improvement before a reduction is made in an ongoing disability rating. Therefore, the VA may not lawfully reduce a disability rating unless it addresses whether the condition has actually improved since the time it was either granted or continued. Footnotes 453. See Smith (Raymond L.) v. Brown, 5 Vet. App. 335, 339 (1993). 454. 13 Vet. App. 342, 349 (2000). 455. Brown (Kevin), 5 Vet. App. at 420-21. See also Lehman, 1 Vet. App. at 342-43 (finding that the Board violated 38 C.F.R. §§ 4.1, 4.2 where the Board relied upon one medical report which drastically differed from all other evidence of record without reconciling the evidence).

Thanks Patti! That is very nice of you. I actually think we wrote quite a bit of rationale. We already sent that. Right now it looks like you have your hands full fighting your own battles - so I am flattered that you offered to help with mine - especially since even I don't have enough time to fight my own battle with this yet. So if you have some time when I get around to pulling it all together - it would be nice to have another brilliant mind give some input! Free

Hoseas 2:14 I will draw her near and take her to the desert and there in the desert I will speak to her heart. This verse just keeps coming to me when I think of you right now. You have had to battle so hard for so long - and maybe you need a few days - to rest in the "desert." And I was thinking of a ritual that helps me sometimes - a release ceremony. I usually like the Fire release - but you can release in many ways. From the Serenity Prayer - I am pretty good at having the serenity to accept the things I cannot change - and the courage to change the things I can - It is that danged old Wisdom to Know the DIFFERENCE that gets me every time. So the release ceremony helps me. So I am offering it to you. Just write a letter to God -- and express all your worries and concerns - and then BURN IT - as you burn it - know that you have turned it over to him. He will take care of what he will take care of - And what he gives you back - is YOUR assignment to handle. Somehow - this helps me sometimes - to not waste my time on senseless battles - and also to not give up on battles I am supposed to fight. I guess it helps me with the "wisdom to know the difference." Everything that God does not give back is not something that you have to have the serenity to accept either. Sometimes I think he divides them up and says "Here. I will handle this one - and you take care of that one." You can also build a little fire and write down your concerns and place them on the fire one by one. Or you can take them out into nature - and put them on a tree - or bury them -- just some tangible way to know that you are releasing them and turning them over. And THEN rest up - because you just might get an assignment. Free

Free sez' "You can lay down your sword - or you can pick it back up - any time YOU want." Betty sez' "I know what I would like to do with it." LOLOLOLOLOLOLOLOLOLOL Here is an online Voodoo Doll http://www.guzer.com/animations/voodoo.php Free

Betty, I don't think you can appeal the decision now. You don't want to appeal the decision that has been made - that you are granted SC for anxiety. You can't appeal the effective date or the percent until they make THAT decision. And the BVA gave it back to the RO to decide that. If the RO makes a decision you don't agree with on either of those - then you can take THAT back up through the channels...and yes, it will take awhile. But I don't think you can appeal the fact that the BVA didn't grant the effective date. And I wouldn't count on the RO reading the whole BVA statement - they will most likely go back to 2004. I think you stand a chance of it going back to the initial claim(s) if you point out the law - and the dates - and ask them what to do. Or else just see if you can submit evidence to make sure they get the right effective date to start with. The same with the percentage - See if as you are already 100% and declared unemployable - if that will be granted. See if since you already get pension AND the DOCTORS said you are unemployable - if that claim is recognized - or if you have to file a separate claim. Or you also have the choice to wait - and see what their little brains come up with on their own. I wouldn't overwhelm them with any information at this point - as they don't like to read a lot. But I think it would be okay to send SOME brief, to the point, questions and / or statements. I DO believe that you CAN get 100% ALL the WAY back... How long that takes is the question of the day. I vote for the plan that takes the least amount of time - as long as it isn't so stressful that it isn't worth it. You are already a hero! You conquered the demons!! So any further battles are at your discretion. You can lay down your sword - or you can pick it back up - any time YOU want. And maybe..just maybe..you have already tamed the beast - (though I am not sure if tame beasts read any better than wild ones........) However, they DO read - they know EXACTLY which parts to IGNORE. Free

So live your life that the fear of death can never enter your heart. Trouble no one about their religion; respect others in their view, and demand that they respect yours. Love your life, perfect your life, beautify all things in your life. Seek to make your life long and its purpose in the service of your people. Prepare a noble death song for the day when you go over the great divide. Always give a word or a sign of salute when meeting or passing a friend, even a stranger, when in a lonely place. Show respect to all people and grovel to none. When you arise in the morning give thanks for the food and for the joy of living. If you see no reason for giving thanks, the fault lies only in yourself. Abuse no one and no thing, for abuse turns the wise ones to fools and robs the spirit of its vision. When it comes your time to die, be not like those whose hearts are filled with the fear of death, so that when their time comes they weep and pray for a little more time to live their lives over again in a different way. Sing your death song and die like a hero going home. Chief Tecumseh (Crouching Tiger) Shawnee Nation 1768-1813

Kim, I am sorry to hear about the loss of your husband. How wonderful that you could be right there with him. My husband died February 5, 2007. He was sick for several weeks - and he hated the hospital beds. He said he wanted a double bed. He said - every time I do a meditation and they tell me to go to the place I feel the safest and happiest - I imgaine myself in your arms. So when I got to take him home - I have a massage table - and I set that right next to his hospital bed - so I could have it at the same height - and I could hold him in my arms. So, though I know the loss of your husband is so hard right now - he was so blessed to spend his last moments here on earth in the EXACT place I am sure he felt the safest and happiest - right in your arms. You actually have up to one year to file your claim. You can file it at ANY time - but as long as you file it in one year - you can be paid all the way back to the date of your husband's death. That would be your DIC claim - the claim for YOUR OWN monthly benefits, which are separate from what was due to your husband. It looks like you have a very strong case for DIC already - as his Diabetes contributed to his death - and was also service connected. If you have any problems - you might have to get a doctor's statement pointing out the Diabetes contributed MATERIALLY to his death - and also see about getting an opinion as to whether it actually CAUSED the heart disease. If the VA determines that his death was the result of a Service connected condition - you should get DIC, (almost $1,100 a month), Educational Benefits (if you want them) VA home loans, etc. These benefits are tax free. Also - they will reimburse you about $2,000 for his funeral and burial. If you are not eligible for DIC - you might be eligible for Pension - which is based on income - but also available for deaths from NONservice connected conditions. As far as your husband's claim - You have the right to accrued benefits. Basically, you re-open his claim - and they decide it based on the evidence in the file at the time of his death - and if the ruling is in his favor - you will recieve the amount he would have gotten within those months from the time he opened the claim until his death. Actually, the VA SHOULD have sent you a Form to apply when you reported his death. However, the VA does not always do what they SHOULD do. You can request the Form from them, or get it from the VA website - or go to a veteran's service officer and have them help you. The basic claim form is for DIC, Pension, AND Accrued benefits. The one form takes care of ALL of those - and they also let you file a claim with Social Security at the same time. The Burial Claim is a SEPARATE claim - and so you would want to fill out a separate form form for that. If I recall correctly - as long as the death is Service Connected - you have quite some time to file that - beyond the year they allow for Non SC. I think the educational benefits are also a separate claim. I am so sorry for your loss - and wish you the best of luck. I also see Berta is on top of this - and she is the Master Queen of the Widows on this board. She has fought almost any claim you can imagine - and has a wealth of wisdom and experience. Kind of wish she would run for President.. Free

Betty, My first thought is that the other BVA case was actually a case in which they person appealed the actual effective date. IF you only get paid back to 2004 - you can appeal the effective date - and if it had to go all the way to the BVA - your decision would look like the one posted. Again, I am assuming the BVA case you posted is of this nature - that the person had already been granted the award - but had appealed the effective date - and the BVA was deciding THAT issue. Again, you might want to consider the proactive approach I suggested in the SUCCESS thread - to point out to the RO (through IRIS or a letter) what the BVA said about the SMRS being new AND material - and since the law says ___ - does that mean THEY will award it all the way back - or should YOU do file something?" You would basically be TELLING them what you want them to do - but framing it as a question - so they would be more likely to try to be helpful. Free

And Betty sez: "I have fought a good fight, I have finished my course, I have kept the faith.."

Yep. Josephine's case reminded me of the story - the Emperor's New Clothes. She kept trying to tell them the Emperor was naked - and they kept admiring his new clothes. I mean the discharge stuff is a farce - and they KNOW it is a FARCE - and that is what the two quacks did - they tried to build on the Farce - with a bunch of made up stuff - counting on the Farce discharge supporting their opinion. And it WOULD have - had Betty not fought it so strongly. But Betty continued to tell them the Emperor had no clothes - and 100 other people backed her story - But they discounted THEIR OWN doctors who also agreed with Betty - so they could maintain the farce that they KNEW was a farce all along. They KNEW the emperor was naked - but they still made Betty PROVE it. When she finally got someone to say it in a way that THEY felt exposed and naked too - they decided the game was over. Or at least the BVA did - Who knows about the RO - they might still be admiring the Emperor's new clothes. Free

I was surprised when the RO called the info we sent "treatises." I am HOPING that as they have acknowledged them as such - they will have to treat them as such in decision making. It might be because we used mostly government sites and very reputable sources for the information. It could also be because we were actually reporting what is considered COMMON KNOWLEDGE in the medical field. In this - the treatisy evidence SHOULD be considered. It is not a case of SOME people with ___ get ___. Or ___ CAN cause ____. Or ___ OFTEN leads to ____. It is case of it is COMMON KNOWLEDGE that pulmonary adenocarcinoma not only MIGHT be slow growing. It is COMMON KNOWLEDGE that it IS slow growing! And it is also COMMON KNOWLEDGE that the STANDARD doubling time for this cancer is 180 days. And we have very reputable sources that state this, as well as a statement from a doctor. And it is COMMON KNOWLEDGE that cancer has to double a certain number of times to reach a certain size. The STANDARD used for a 3.1 cm tumor is 35 doublings. We even submitted a research article that specifically studied FAST growing tumors. In that study, only 28% of the pulmonary carcinoma were considered fast growing (less than one hundred days doubling time) - and of those - the FASTEST doubling time was 72 days (so it would still take over SIX YEARS for it to grow to 3 cm). Now that is one of the "stretches" - as it doesn't apply directly to my husband's personal case. But it was submitted to help counter any opinion THEY might get stating that ALL cancer doesn't grow at the standard rate - an allude that his might have grown extremely rapidly. Okay.. yeah.. but what are the chances that his grew THREE times FASTER than the "fast growing" tumors that have been studied? NOT more likely than not by any means. We have SO MUCH treatisy evidence in the file SUPPORTING that the ONLY way to say it is more likely than not that his tumor grew to 3.1 cm within 2 years of discharge would require a doctor to Step WAY outside the realm of ACCEPTED standards - and even WAY beyond the realm of "well it is "possible." Right now I THINK they are still playing around with the "His symptoms in service were not caused by his cancer." That is what the denial said - but I need to get the doctor's report to see what he actually said. They are SUPPOSED to be sending it to me. But I am also still waiting for the C-file I requested last summer too. The last IRIS said they would send the doctor letter FIRST - and as his C-file is "large" - they will send that LATER. Ahem..it is ALREADY later, thank you... Anyway - I think we have enough supporting medical info about cancer in the files - that when I get the IMO that connects all the dots - it will be hard for a VA doctor to defeat it - which is why they have been avoiding talking about inception in the first place. They can't find any medical evidence to support a theory that the cancer started AFTER service. So they just ignore that part - and blab on about how his symptoms weren't caused by cancer. The VA IGNORED the claim my husband presented over and over again - "My cancer STARTED when I was in active service." Now that they have FINALLY acknowledged that IS his claim - it looks like their doctor ignored it - and only talked about symptoms. I think a real key to claims is what they IGNORE. Right now, I am so busy keeping up with my life and fighting all the other governmental agencies - that I don't have near enough time to put into getting the VA claim all the way together. But once I get the C-file and Doctor Report - I think getting the IMO ought to do it. The BVA has awarded LOTS of claims on the doubling time. They have pretty SHORT discussions on it. I think when they see the IMOs or treating doctor statements that CLEARLY STATE the nature of the cancer makes it so it is VERY UNLIKEY that it would have grown as fast as neccessary to have started AFTER service - they grant it pretty quickly. They don't ususally get into long drawn out discussions of the evidence. At the BVA - Most of the cases where SC is denied are ones where the claimant JUST relied on lay and treatisy evidence - and the VA doctor who gave the opinion either states it is imposiible to determine EXACTLY when cancer STARTS without speculating - OR they give an opinion that the medical community considers that cancer's ONSET is when it is diagnosed. The opinion on cancer ONSET can be easily defeated - Why do we push toward EARLY detection if cancer doesn't start until it is diagnosed. The speculation can also be defeated in MANY cases. If my husband's cancer was a type that grew fast enough that it would have NORMALLY reached that size in four or five years - then it would be harder to determine how likley it would be that it COULD have grown to that size in two years. But his cancer is the time that would NORMALLY take 15 - 17 years to reach 3.1 cm. How much SPECULATION would it really take for a more likely than not opinion? BUT - IF the claimant has NO medical opinion - AND the VA doc gives one of those flimsy ones - the BVA HAS on occasion, but RARELY will - over-rule the doctor's opinion based on the treatisy evidence. The best a vet can hope for in that situation is a REMAND - for further development. But sometimes - they go ahead and deny. I am not sure what the RO does - The RO is probably not sure what it does either. Free

I think that is your key for the earlier effective date. § 3.105 Revision of decisions. (a) Error. Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of this section, where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of §3.500((2) will apply. § 3.156 New and material evidence. © Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph © of this section are met; (3) An award made based all or in part on the records identified by paragraph ©(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. (4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim. And, yes - you were given good advice on filing the TIU claim. The 1992 date is the date of the DENIAL. I wonder when they are saying that claim was FILED. That Should be your Effective Date. But again - it MIGHT even be able to go back to when you were awarded your Pension. I wish I could find the section I had - I believe from the MR-21 that said if a vet claims for an earlier effective date - they cannot hold up the rest of the claim while they decide that. I am wondering if it would be best to be proactive on this. Something like sending an IRIS and ASK them. Though you wouldn't REALLY being asking them - you would be connecting the dots for them AGAIN. Something like: "As the BVA pointed out that my SMRS that showed in-service treatment for my condition were not associated with the claims file when my claim was originally decided, and that materially affected my claim - it is my understanding that under ____ the date of my award would be the date of the claim was originally filed. I am wondering if this will be done automatically, or if I will be required to file a CUE for this. It is my understanding that either the veteran or the VA can call a CUE on a previous decision. So I am not certain whether the VA is doing this - based on the BVA decision, or if I will be required to do this." I am not sure about what occured with the 1983 granting of Pension - but depending on what occured - you could even add - "I am also not sure if the effective date goes back to the filing date that resulted in the decision that the BVA indicates was made on my claim in 1992 (in which my SMRS showing in-service treatment of my condition were not associated with the record), or if it goes back to the ____ date, where the VA granted 100% disability for this condition in 1983, but denied me Pension based on excessive income. As the VA rated the condition at 100% for Pension purposes at that time, but did not Service Connect my disability - due to material SMRs not being in my file - I am wondering if my effective date actually goes back to THAT claim. You could also add - "Also, as I am already recieving Pension for being 100% disabled, and unable to work - am I required to file for TUI, or is that already of record in the granting of the Pension?" ****That section could be adapted based on whether they granted the Pension for Anxiety - or a combination of symptoms - as to whether they already found the anxiety 100% - or if TUI would need to kick in. And I would ADD - "I understand that the Pension and Compensation Manual indicates that if there is a question on the effective date of the claim - that the claim be processed while that issue is being decided. Therefore if there will be any delay in determining my effective date - based on my previous claims for this condition - I ask that my Compensation be started, while the issue in respect to the effective date is being determined." **** I am NOT sure if sending this would be a good thing to do. You might want to see what others think on the matter. I was just thinking that even though the BVA granted SC - that doesn't mean the RO learned to read - so you might want to proactively connect the dots for them in advance - so they MIGHT see: 1. The BVA SAID the SMRs were material and not in your record when your claim was decided. 2. That the REGS SAY that this means your claim should be granted back to the ORIGINAL filing. 3. That you filed more than once. 4. That you are ALREADY considered UNEMPLOYABLE through the granting of the Pension. 5. That they should NOT hold up your ENTIRE claim while deciding (i.e. should AT LEAST pay you RETRO to 2004 OR the Original date the claim that resulted in the 1992 denial's date - while deciding if you are eligible even EARLIER). I just thought it might be to your advantage to tell them where to dig BEFORE they start digging --because you know how once they dig in it is hard to get them to budge. And framing it as a question -- perhaps through the IRIS - might make it a bit more smoother - than if you present them with statements of what they SHOULD do. I know. I know. You questions will really be -- "Here is the law. Please explain to me how you are going to follow the law... Are YOU going to follow the law? ..Or am I supposed to file CUES... and TUI claims to get you to follow the law? Please help me do the right thing to help you follow the law..." - and will also be a chance to REMIND them of the dates involved and the issues involved... Just a thought, FREE

It looked the the BVA was already leaning that way on the Remand. They pointed out the Reverand and one of the treating doctors - asked the AMC to get even more information from them - and to send it back to the quacks to see if they continued with the same diagnosis in light of the additional evidence - and to justify their diagnosis with reasoning if they did. It looked like the BVA was saying - It looks this is something other than a Personality Disorder - this needs to be checked out - and the docs who have labeled her with such need to actually look at the other evidence and either change their diagnosis - or give their medical rationale for why their opinion is so out of step with the rest of the record." "Does not change our opinion" is not providing any medical rationale for the diagnosis. They didn't justify it because they couldn't justify it. I do think something needs to be done about these bogus psych discharges vets get -which sets them up for this to happen to them. I wonder if Betty can now get that bogus C&P removed from her file so it can never haunt her again. Free

Woo Hoo! Congrats to you! Free

Here is another Federal Court Decision (2007) that says they can't just blow off lay evidence - even of medical conditions. The vet STILL can't diagnose himself. BUT - the VA can't ignore lay statements merely because the medical records didn't document the same thing. This probably won't result in the VA NOT ignoring lay evidence - They will probably just get more skilled in how the WORD why they are ignoring the evidence. Can hardly wait until the Federal Courts make a decision on "Internet print-outs" http://www.cafc.uscourts.gov/opinions/07-7029.pdf United States Court of Appeals for the Federal Circuit 2007-7029 ALVA JANDREAU, Claimant-Appellant, v. R. JAMES NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee. Ronald L. Smith, Disabled American Veterans, of Washington, DC, argued for claimant-appellant. With him on brief was Zachary M. Stolz. Leslie Cayer Ohta, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Peter D. Keisler, Assistant Attorney General; Jeanne E. Davidson, Director; and Mark A. Melnick, Assistant Director. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel; and Y. Ken Lee, Attorney, United States Department of Veterans Affairs, of Washington, DC. Appealed from: United States Court of Appeals for Veterans Claims Chief Judge William P. Greene, Jr. United States Court of Appeals for the Federal Circuit 2007-7029 ALVA JANDREAU, Claimant-Appellant, v. R. JAMES NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee. ___________________________ DECIDED: July 3, 2007 ___________________________ Before MICHEL, Chief Judge, and BRYSON and DYK, Circuit Judges. DYK, Circuit Judge. Alva Jandreau (“Jandreau”) appeals the judgment of the United States Court of Appeals for Veterans Claims (“Veterans’ Court”). That court affirmed an earlier decision of the Board of Veterans’ Appeals (“Board”) that denied service connection for residuals of a right-shoulder dislocation. We reject appellant’s argument that the evidentiary standard should be relaxed, but hold that the Veterans’ Court improperly held that lay evidence cannot be used to establish a medical diagnosis. We remand for further proceedings consistent with this opinion. BACKGROUND Jandreau served honorably in the U.S. Army from May 1957 to May 1959. In May 1997, Jandreau filed a claim with the Veterans Administration (“VA”) for residuals of a right shoulder injury. He asserted that the injury to his shoulder had occurred during basic training at Fort Dix, when he had dislocated his shoulder and had been treated for his injury on the base. The VA attempted to obtain Jandreau’s service medical records, but was unable to do so because those records had been destroyed in a 1973 fire at the National Personnel Records Center in St. Louis. In an effort to provide the necessary evidence as support for his claim of service connection despite the destruction of the records, Jandreau submitted a number of documents to the VA. He submitted a statement from a fellow serviceman, Frederick Burnham, averring: “I remember Alva [Jandreau] being in great pain after dislocating his shoulder while in training.”1 J.A. at 35. Jandreau also submitted multiple medical reports, detailing medical examinations conducted in 2000. Those reports stated that Jandreau suffered pain, arthritis and rotator cuff impingement in his right shoulder. In particular, one report by Dr. Timothy Snell, M.D., assesses Jandreau’s condition as “[r]ight shoulder pain, most likely sequelae of his dislocation of the shoulder.” Id. at 7. Jandreau also submitted a radiology report indicating a history of right-shoulder dislocation and pain and documents indicating treatment for that condition. The VA denied service connection because “no medical evidence was received showing continuity of treatment for the right shoulder since discharge from military service.” J.A. at 78. Jandreau appealed to the Board, which issued its decision on May 1 The VA specifically allows veterans to introduce into evidence statements of fellow service members when records were destroyed in the 1973 fire. See Veterans Benefits Administration Adjudication Procedures Manual M21-1MR, part III, subpart iii, ch. 2, § E.27.b (2005), available at http://www.warms.vba.va.gov/admin21/ m21_1/mr/part3/subptiii/ch02/ch02_sece.doc, page 2-E-5. 2007-7029 2 27, 2004. The Board denied service connection for Jandreau’s injury, reasoning that Dr. Snell’s report merely recorded Jandreau’s assertion that he had suffered a dislocation but did not diagnose a dislocation when it occurred. The Board stated that “the Board is not required to accept evidence that is simply information recorded by a medical examiner, unenhanced by medical opinion.” J.A. at 13. It further concluded that “[m]edical diagnosis and causation involve questions that are beyond the range of common experience and common knowledge, and require the special knowledge and experience of a trained physician.” Id. The Board rejected the testimony of both Jandreau and his fellow serviceman, because “[w]hile the veteran and his buddy are arguably competent to present evidence concerning the occurrence of an injury, they are not competent to present evidence to establish the etiology of a current disability.” Id. The Board thus found that “there is no competent evidence on file linking the veteran’s current right shoulder disabilities to service or to any incident therein.” Id. Jandreau appealed to the Veterans’ Court, which affirmed the Board’s decision. The court concluded that the Board did not err in rejecting lay evidence that Jandreau suffered a dislocation during service and “did not err in discounting Dr. Snell’s medical opinion because it was premised on a fact that Mr. Jandreau was not competent to establish—that he had dislocated his shoulder during service.” Jandreau v. Nicholson, No. 04-1254, slip op. at *3 (Vet. App. Aug. 24, 2006). The court held that “[w]here the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is required; however, lay assertions of symptomatology or injury may suffice where the determinative issue is not medical in nature.” Id. Thus the court held that “whether [Jandreau] experienced a dislocation of his shoulder requires a medical 2007-7029 3 diagnosis.” Id. Jandreau timely appealed the decision of the Veterans’ Court to this court. We have jurisdiction pursuant to 38 U.S.C. § 7292(a). Cromer v. Nicholson, 455 F.3d 1346, 134-49 (Fed. Cir. 2006). DISCUSSION I On appeal Jandreau first argues that the destruction of records while in the government’s custody should result in a relaxed evidentiary standard for veterans. We reject this argument. The statute provides that “a claimant has the responsibility to present and support a claim for [VA] benefits.” 38 U.S.C. § 5107(a). In our decision in Cromer, 455 F.3d 1346, we considered and rejected the argument that service connection should be presumed when a veteran’s medical records are destroyed while in the government’s custody. 455 F.3d at 1350-51. In Cromer, the medical records were destroyed in the same 1973 fire at the National Personnel Records Center that resulted in the presumed destruction of Jandreau’s records. See id. at 1347. We reasoned that the veteran has the evidentiary burden of establishing his claim in veterans’ benefits cases and that Congress and the VA have specifically shifted that burden in particular cases, but have not done so here. Id. at 1350-51. We further noted that the VA has eased the evidentiary burden on veterans whose records were lost in the 1973 fire, but has not provided for an adverse presumption of service connection. Id. at 1351. 2 2 See Veterans Benefits Administration Adjudication Procedures Manual M21-1MR, part III, subpart iii, ch. 2, § E.27.b (2005), available at http://www.warms.vba.va.gov/admin21/m21_1/...2/ch02_sece.doc, 2007-7029 4 Jandreau on appeal does not deny that our decision in Cromer is controlling on the issue of burden shifting, but asserts that his claim is different because he asserts only that his burden of proof should be “somewhat relaxed.” Reply Br. at 1. To the extent Jandreau seeks a modification of his burden of proof, we see no material difference between his argument and the argument we rejected in Cromer. To the extent that Jandreau seeks to invoke traditional evidentiary adverse inference rules, we find those rules to be inapplicable, even if we were to agree that they apply in the context of VA proceedings. The general rules of evidence law create an adverse inference when evidence has been destroyed and “(1) . . . the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) . . . the records were destroyed with a culpable state of mind; and (3) . . . the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.” Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002) (internal citation and quotation marks omitted); see also 31A C.J.S. Evidence § 168 (2007); 2 Kenneth S. Brown, McCormick On Evidence § 264 (6th ed. 2006). The burden is on the party seeking to use the evidence to show the existence of each criterion. Residential Funding, 306 F.3d at 107. There is no claim here that the records were willfully or recklessly destroyed. While some circuits have held that a showing that a party was negligent in page 2-E-5 (listing alternate documents, such as statements from service medical personnel, statements of fellow service members, letters, photographs or prescription records, state or local accident and police reports, that the veteran can provide to substitute for documents destroyed in the 1973 fire). 2007-7029 5 the destruction of records creates an adverse inference,3 we need not decide whether that is the correct rule because Jandreau conceded at oral argument that there was no evidence of government negligence leading to the destruction of the records. II Jandreau’s second argument on appeal is that the Veterans’ Court erred in holding that that lay evidence is insufficient “where the determinative issue involves either medical etiology or a medical diagnosis,” and that accordingly, “whether [Jandreau] experienced a dislocation of his shoulder requires a medical diagnosis.” Jandreau, No. 04-1254, slip op. at *3. We agree. The holding of the Veterans’ Court is inconsistent with our decision in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), which was decided shortly before the decision of the Veterans’ Court in this case. Buchanan involved a situation where the veteran claimed service connection resulting from schizophrenia that allegedly began during his service. The veteran sought to establish service connection by submitting affidavits of relatives and his commanding officer testifying that his symptoms of paranoid schizophrenia first manifested themselves during service, as well as a medical opinion from 2001, almost twenty years after the conclusion of his service, that stated that his symptoms first 3 See Residential Funding, 306 F.3d at 108; Rogers v. T.J. Samson Cmty. Hosp., 276 F.3d 228, 232 (6th Cir. 2002). Other circuits have held mere negligence insufficient to apply an adverse presumption. See, e.g., Aramburu v. The Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997); Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997); Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir. 1995); Vick v. Texas Employment Comm'n, 514 F.2d 734, 737 (5th Cir. 1975); see also Med. Lab. Mgmt. Consultants v. Am. Broad. Co., 306 F.3d 806, 824 (9th Cir. 2002); Jackson v. Harvard University, 900 F.2d 464, 469 (1st Cir. 1990). 2007-7029 6 appeared during service. Id. at 1333. The Board determined that lay evidence without confirmatory documentary evidence cannot be credible, and the Veterans’ Court affirmed. Id. at 1337. We reversed, holding that numerous veterans’ statutes and regulations require consideration of lay evidence. Id. at 1334-35; see also 38 U.S.C. §§ 1154(a), 5107(; 38 C.F.R. §§ 3.303(a), 3.307(. In other words we found that the statute makes clear that, in the veterans’ context, traditional requirements for admissibility have been relaxed. See 38 U.S.C. § 5107(B) (“The Secretary shall consider all . . . lay and medical evidence of record in a case . . . with respect to benefits.”). We concluded that “lay evidence is one type of evidence that must be considered” and that “competent lay evidence can be sufficient in and of itself.” Buchanan, 451 F.3d at 1335. We noted that the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Id. at 1336-37. The rule announced in Buchanan is particularly important when veterans’ service medical records have been destroyed. Unless lay evidence were allowed, it would be virtually impossible for a veteran to establish his claim to service connection in light of the destruction of the service medical records. Under Buchanan the conclusion of the Veterans’ Court that “competent medical evidence is required . . . [when] the determinative issue involves either medical etiology or a medical diagnosis” is too broad. Jandreau, No. 04-1254, slip op. at *3. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition,4 (2) the layperson is 4 Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. 2007-7029 7 2007-7029 8 reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Contrary to the Veterans’ Court, the relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans’ Court. We do not reach the question whether in the present case the lay evidence is competent and sufficient to establish shoulder dislocation, a matter beyond our jurisdiction. We remand to the Veterans’ Court so that it may remand to the Board for further consideration under the correct legal standard. CONCLUSION For the foregoing reasons, the decision below is REVERSED AND REMANDED COSTS No costs.

Here's a good one - From the Compensation and Pension Adjudication Manual PROLOGUE "to care for him who shall have borne the battle and for his widow and his orphan...." Abraham Lincoln Abraham Lincoln emphasized the debt owed to America's veterans and our citizens have honored that debt by creating the Department of Veterans Affairs whose responsibility it is to place into deeds those words. Veterans Benefits Administration employees have a unique opportunity to serve America's veterans. Our mission is to see that our country's veterans and their dependents receive the benefits they so richly deserve. We are fortunate to have the opportunity to help repay those who so courageously and unselfishly served their country. In performing our duties we must be constantly aware of the special status of those we serve. They responded willingly when called to duty to defend the people of the United States, risking their lives and limbs. We must respond just as willingly to their needs and those of their families. This manual provides procedures for administering compensation and pension benefits. While these procedures are important to our accomplishing our task, VA employees must never lose sight of the humanity of those people we serve. We must commit ourselves to seeing that they are treated sympathetically and with respect and dignity. As you go about your daily duties, keep in mind Abraham Lincoln's pledge and our commitment.

§ 3.105 Revision of decisions. (a) Error. Previous determinations which are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. Except as provided in paragraphs (d) and (e) of this section, where an award is reduced or discontinued because of administrative error or error in judgment, the provisions of §3.500((2) will apply. § 3.156 New and material evidence. (a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. (Authority: 38 U.S.C. 501, 5103A(f), 5108) ( Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(B)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. (Authority: 38 U.S.C. 501) © Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph © of this section are met; (ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim. (2) Paragraph ©(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. (3) An award made based all or in part on the records identified by paragraph ©(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. (4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim. (Authority: 38 U.S.C. 501(a))Cross References: Effective dates—general. See §3.400. Correction of military records. See §3.400(g). [27 FR 11887, Dec. 1, 1962, as amended at 55 FR 20148, May 15, 1990; 55 FR 52275, Dec. 21, 1990; 58 FR 32443, June 10, 1993; 66 FR 45630, Aug. 29, 2001; 71 FR 52457, Sept. 6, 2006]

Yep. That IMO helped a LOT!! The sad thing is that it was all a game, and everyone could SEE the game and knew what it was all along - and that she was required to track down someone who would call it for what it was - and had to pay a substantial amount to get that opinion. Was the opinion worth every penny? Yes. BUT - the biggest factor in the IMO was NOT the doctor issuing a nexus opinion - It was the doctor pretty much declaring - I SEE YOUR GAME! You are playing games with this woman. YOU know you are playing a game. And NOW I know you are playing a game. The hell they put her through in the meantime was inhumane. I DO think the BVA was already leaning pretty firmly in her direction. Based on the prior remand - it looked like they were saying "Hey. The preacher had some legitimate stuff - Ask him more. There might be something to this pool incident. Find out. Find out more info that the CLAIMANT has pointed out. And then see if the quacks want to change their mind - or give some reasons for not doing so." The quacks knew better than to try to justify their opinion. It could NOT be justified - and they knew it. The IMO EXPOSED the quacks. But everyone could already SEE their quackiness. The RO knew. The AMC knew. The BVA knew. And they knew that Betty knew. But she had to pay someone to expose what everyone could ALREADY see. THAT is injustice! Betty GOT her justice - but it sure wasn't given to her. She had to claw her way through so much BS to get it. So much for the VA motto. Free

"If I could get them to pay me back to that date, I would shut up." LOLOLOLOLOLOLOLOLOL Betty - shut up when they still owe her something????? Yeah. Right. They tried so hard to shut you up -- and you got louder and louder. I was thinking they did not HAVE some of the records - and YOU sent them - and then they tried to say they couldn't read some of THOSE (the ones that were favorable of course....) I would go back to the earliest date you filed ANY claim for anxiety - and argue for a CUE - as material evidence in the SMRs was not available to the RO - and it was also not available to anyone giving a medical opinion. If the VA sends your C-file to doctors for an opinion - and the evidence of in service treatment is not in the file when the Dr. issues their opinion - then the doctors opinion shouldn't be used to show you wouldn't have gotten benefits back then anyway. The missing SMRs MATERIALLY effected your claim. You had SMRs showing in service treatment. THe VA did not obtain them - so any medical opinions they obtained that said your anxiety wasn't service connected, should be discounted - because the opinion was based on the incomplete evidence provided to them by the VA. Free

Yes. She should apply for DIC - if his cause of death can be connected to his SC condition(s). That would be her OWN claim - for DIC and / or Pension (a claim for one is a claim for both). Also - as he had a claim PENDING - the VA closes it - but she can reopen it - by filing for ACCRUED benefits. She has the right to any benefits that would have been paid had his claim been decided during his lifetime. So based on the evidence in the file when he died - they will make a decision - and if it is in the vets favor - then the widow gets the benefits he would have been paid. (so say he filed the claim five months before he died - she gets HIS five month payment) The vet does not have to be 100% for 10 years IF they die from a SC condition - or from something that can be attributed to a SC condition. Free

I would THINK they could go back to 1992 right off the bat - or actually, the BVA says 1992 DENIAL - so actually when you FILED that claim. I would also assume that you also applied for SC when you got the Pension in 1983. Especially since the BVA said that the SMRs were both new AND material... they are indicating that the information in the SMRs MATERIALLY affected your claim - so I think even if they didn't go back to the date when you filed the claim you were denied in 1992 - you MIGHT be able to file a CUE for an Earlier Effective Date - and at least get it back to THAT date pretty easily - by pointing out that the BVA said the SMRs were material to your claim - but I would think it SHOULD go back the the FIRST time you filed for benefits for anxiety. Free

Woo! Hoo! 1983??? 100% - and then they determined it was not service connected because of SMR's that showed that it WAS that were NOT of record. CUECUECUECUECUECUECUECUE!!!!!!!!!!!!!!!! Free And now that you have some spare time - I guess you can report the quacks to the medical licensing boards for changing your diagnosis and issuing opinions without so much as giving you any tests. The regulating agencies might have some interest in psychiatrist who are willing to actually CHANGE someone's diagnosis without so much as doing any tests to justify such a change. Free again..

OMG!!! I am so very, very happy -- got goosebumps all over. And I am so proud of you - because you never gave up - even when all the odds were stacked against you - and even when no one gave you much hope - even us sometimes. Of course, ALL your fight might not be over - since you don't know what effective date they will use - But it looks like if they do not go all the way back to AT LEAST 1992 - the BVA has set up a very good claim for the earlier effective date - since they mentioned that SMRs that show the in-service treatment were NOT of record when the initial decision was made. I was thinking you also applied earlier than 1992. Did you? If so - the BVA's remark about SMRs that showed treatment in the service not being part of your record until you submitted them - should be able to take you back to any decision made. Hmmmm.. You report your victory - and here I am already planning the next fight....lol Celebrate! Celebrate! Celebrate! Free

Ack!!!!!!!!!! What time does the mail come? I am watching the success story forum like a hawk - waiting for a new post.. Free

I'm rooting for you!!! Free