Post Service Diagnosis And Failure To Adjudicate

[free_spirit_etc]

Does anyone know if DESHOTEL (July 27, 2006) has over-ruled the below?

http://www.va.gov/vetapp04/files/0405741.txt

In February 2002, the veteran's representative argued that

service connection on a secondary basis for obesity and for

lower back arthritis was warranted. In August 2002 the

veteran's representative again suggested that the veteran's

obesity was secondary to service connected disability. The

Board notes in passing that while service connection on a

direct basis for low back disability has been denied on

numerous occasions, service connection on a secondary basis

under 38 C.F.R. § 3.310 for low back disability has never

been adjudicated by VA.

The United States Court of Appeals for Veterans Claims has

held that two issues are "inextricably intertwined" where

they are so closely tied together that a final decision

cannot be rendered unless both issues have been considered.

Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

The Deshotel case states:

"Where the veteran files more than one claim with the RO at the same time, and the RO’s decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run. We considered this exact issue in Andrews

F.3d 1278 (Fed. Cir. 2005), although the argument regarding a pending

claim was made there by the government rather than the veteran."

But it also states:

"Relying on Roberson, 251 F.3d at 1383-84, we held that where an RO renders a decision on a veteran’s claim for benefits but fails to address one of the claims, that decision is final as to all claims; the RO’s failure to address the implied claim “is properly challenged through a CUE motion,” not a direct appeal.3"

The reason I am asking is because this is similar to my husband's "two-pronged" claim for lung cancer:

1. That is was a DIRECT service connection - as it STARTED in the service.

2. That it was a SECONDARY connection in that is was related to his in-service asbestos exposure.

The RO denied the claim on asbestos exposure - and even CHANGED the claim -

The initial letter from the VA stated “We have received your claim for service connection for lung cancer, to include as secondary to asbestos exposure.”

The February 2003 denial letter stated Decision: “Service connection for adenocarcinoma, left lung, due to asbestos exposure is denied.” However, it did not address the issue of direct service connection.

But they NEVER addressed the DIRECT service connection issue, except to mention that his cancer was not diagnosed in Service nor within his presumptive period.

However: §3.303(d) clearly states “Postservice initial diagnosis of disease. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.

And §3.307 (c.) states: “Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations within the period, should be developed to determine whether there was symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree.”

(His 3.2 cm tumor was discovered one year after the presumptive period).

So my questions are:

1. Does the 2004 BVA case above apply?

As the two issues were "inextricably intertwined" where

they are so closely tied together that a final decision

cannot be rendered unless both issues have been considered.

(I know a BVA case isn't a precedent - but the case THEY cite is)

3. Or does the July 2006 Deshotel case in Federal Court supercede that?

4. If the Deshotel case does supercede, since my husband requested the VA adjudicate his unajudicated claim for DIRECT Service connection PRIOR to the July 27 Deshotel decision -he kept telling them "I applied for DIRECT connection - you have NOT ADDRESSED that!" do the pre-Deshotel decisions apply to this aspect of his case?

5. As the Deshotel case states "where an RO renders a decision on a veteran’s claim for benefits but fails to address one of the claims, that decision is final as to all claims; the RO’s failure to address the implied claim “is properly challenged through a CUE motion,” not a direct appeal.3" - is that saying that the failure to address one of the claims is in and of itself a CUE?

I think we would still have a CUE on failure to apply §3.303(d) And §3.307 (c.)

Because §3.303(d) Post-service diagnosis of disease SPECIFICALLY addresses diseases which were diagnosed AFTER service - and doesn't give the VA the authority to simply dismiss Direct Service connection with the excuse that it wasn't diagnosed in service - without giving medical rational for why the post-service diagnosis would preclude it from being Service Connected.

Also And §3.307 (c.) states: “Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations within the period, should be developed to determine whether there was symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree.”Symptomatology shown in the prescribed period may have no particular significance when first observed, but in the light of subsequent developments it may gain considerable significance. Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations within the period, should be developed to determine whether there was symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree.”

I would think this would be DIFFERENT than a Failure in Duty to Assist - in that they did not DEVELOP the claim as directed by law - looking over the evidence OF RECORD to look at it in the light of subsequent developments.

So once again, failing to address why medical evidence of record would preclude Service Connection of a disease that was diagnosed AFTER the presumptive period -could be a CUE - because section §3.307 (c.)sets out specifically what the VA is supposed to do if a chronic condition is diagnosed AFTER the presumptive period (which automatical ASSUMES that it was not diagnosed WITHIN the presumptive period.)

So once again, a simple "your disease wasn't diagnosed within the presumptive period" doesn't show any attempt to consider and apply the LAWS that SPECIFICALLY tell them what to do if a disease is diagnosed after such time.

But does anyone know if according to Deshotel - failure to adjudicate an issue is a CUE on its own right?

Free

[Hoppy]

Free,

I do not know if it has been overruled. However, it is all a mute issue unless you expect that a review of the SMR and post service medical reports for one year after discharge would result in the finding that symptoms occurred in retrospect that would rise to a 10% rating according to the laws you posted. Do you have this type of medical evidence.

It is my understanding that the VA can make a mistake that would be considered a CUE when supported by medical evidence establishing a claim. Just because they fail to make the evaluation as required by law does not result in a CUE award. They will still consider the medical issues and the medical evidence must support the rating.

Also, I do not know that faliure to apply a law is a CUE. The duty to assist is a law and when they fail to apply that law it does not result in a CUE. I do not know much about CUE's so this is just a guess.

I would look at the laws they cited on the decision as being relevent. If they included 3.307 they could have actually complied with the law. The just did not do a good job of explaining what they did in the decision. If 3.307 is not mentioned then it could be argued that they failed to consider it.

[free_spirit_etc]

ACK! On the laws part - since they copy and paste a whole bunch of laws onto the decisions - but don't really indicate in any way how that law was applied to your case. I will have to check the SOC and see if that is one of the laws they copied and pasted.

One thing the Veteran's Benefit Manual had talked about was that if they state that a veteran's disease wasn't diagnosed until after service - without giving a medical rationale for why that matters in relation to the disease - the decision should be appealed - because they are, in effect, making a medical judgement about the medical condition without backing it up.

If they say, your disease wasn't diagnosed until 5 years post service and accepted medical principles indicate that the incubation period for this disease is 2 years -- (and cite medical principles) THEN they have applied it correctly.

But if they just say "Your disease was not diagnosed until 2 years after your discharge" PERIOD --they have made a medical judgement about the nature of the disease (by implying that WHEN it was diagnosed related to WHEN it was incurred)without backing it up with any medical evidence (relating to the nature of the illness).

Our position is that post service records could show the disease had manifested with symptomology that would rise to a degree of 10% during the presumptive period.

The major arguments we made for this was his consistent reports of fatigue and night sweats. He reported the fatigue PRIOR to his retirement. The VA did a C&P on the fatigue, to see if it was Desert Storm related. But this was before he knew he had cancer. The examiner stated he did not have fatigue at the level of Chronic Fatigue Syndrome, but he did not issue and opinion as to what was causing his fatigue.

Actually, I had always heard of the fatigue that was related to cancer treatment - but was surprised to discover that it is actually one of the FIRST noticable symptoms of cancer - (often discovered in retrospect - Oh THAT'S why you have been so tired lately") and usually more severe in lung and ovarian cancer.

"Fatigue was reportedly present at the time of diagnosis in approximately 50-75% of cancer patients."

"Fatigue was the most frequent and distressing cancer-related symptom occurring in women with lung cancer, two times greater than the next symptom, pain, and remains one of the most common symptoms in newly diagnosed lung cancer patients at any stage of the disease”

The 10% level is an interesting concept because the rating schedule indicates that malignant neoplasms are rated at 100% until 6 months after the cessation of treatment.

6819 Neoplasms, malignant, any specified part of respiratory system exclusive

of skin growths 100

Note: A rating of 100 percent shall continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of §3.105(e) of this chapter. If there has been no local recurrence or metastasis, rate on residuals.

So I would think this would indicate that if the fatigue was cancer related - it would indicate a disability of greater than 10%. Unless the fatigue, itself, had to be 10% disabling. But I would think if they granted that the fatigue was more likely than not cancer related - then the cancer was "manifest" by symptoms --and was 100%.

Now - I know for a CUE the standard is higher than "more likely than not" - which is why the law would come into play...as in DID they follow the law on postservice diagnosis of illness in adjudicating his claim.

But first I have to get the SC granted for the cancer --which is probably quite a distance down the road. And probably --some of the EED by a cue would depend on whether they address the fatigue in their decision on SC - and if they address it favorably. (i.e. if the RO or BVA states in their decision that it was more likely than not that the fatigue was a symptom that showed the cancer more likely than not had manifested during the presumptive period... THEN there would be a stronger case that an error was made in the first decision.

Dream on.......

Free

Free,

I do not know if it has been overruled. However, it is all a mute issue unless you expect that a review of the SMR and post service medical reports for one year after discharge would result in the finding that symptoms occurred in retrospect that would rise to a 10% rating according to the laws you posted. Do you have this type of medical evidence.

It is my understanding that the VA can make a mistake that would be considered a CUE when supported by medical evidence establishing a claim. Just because they fail to make the evaluation as required by law does not result in a CUE award. They will still consider the medical issues and the medical evidence must support the rating.

Also, I do not know that faliure to apply a law is a CUE. The duty to assist is a law and when they fail to apply that law it does not result in a CUE. I do not know much about CUE's so this is just a guess.

I would look at the laws they cited on the decision as being relevent. If they included 3.307 they could have actually complied with the law. The just did not do a good job of explaining what they did in the decision. If 3.307 is not mentioned then it could be argued that they failed to consider it.

[free_spirit_etc]

I sure don't know why --but all roads seem to lead me to CUES. I can go the the BVA site and type the word "frog" in a search -and end up pulling up decisions about CUES.

Anyway - in researching my own question I ran across:

http://www.legion.org/pdf/vt_circuit_0806.pdf

Claims for Retroactive Benefits Where There Was a Deemed Denied Claim

This type of claim presents itself when a regional office grants service connection for condition Y but the effective date established by the RO is arguably incorrect because the claim should have been considered by an earlier (non final) adjudication. Because this area of veterans’ law is still in flux, advocates are advised to continue to file claims for retroactive benefits with regard to finally adjudicated claims if a regional office, in the past failed to adjudicate a claim that was reasonably before the RO, or the RO failed to provide proper procedural and appellate notice.

• The representative should file a CUE claim against the original decision based on the failure of the RO to consider disability Y. The representative should argue that the failure of the VA to recognize and adjudicate the claim that was ignored constitutes clear and unmistakable error (CUE). If such a claim is denied, the advocate should file an NOD to buy time in the hope that Deshotel is overturned (by a higher court or by Congress).

• Representatives are advised to continue to argue that because the claim was ignored and because the RO did not comply with 38 U.S.C. § 5104, the claim is still pending and the effective date should be from the original date of claim.

The following is suggested language (boilerplate) for this notice of disagreement.

In Richardson v. Nicholson, 20 Vet. App. 64 (2006), the CAVC held that appellants can argue that the failure to adjudicate a claim constitutes CUE. The Court held that the VA is required to determine whether the claim was or was not adjudicated. If the claim was adjudicated then the VA is required to consider the current CUE claim. If a claim should have been adjudicated but was not then the VA is required to now adjudicate that claim. This is a notice of disagreement because an earlier effective date should have been established because the rating decision dated [insert date] should have adjudicated this issue. If you determine that the above cited rating did consider this issue, the appellant contends that the failure of the rating to adjudicate this claim constitutes clear and unmistakable error. Please note that the appellant was never provided specific notice of this decision. See 38 U.S.C. § 5104. In the alternative, the appellant argues that the claim was still pending from the original date of claim when benefits were eventually granted. The veteran seeks appellate

[Berta]

There was discussion her on Deshotel when it came out.

It has to be read in context of Andrews- here is latest I have on this odd decision:

http://209.85.165.104/custom?q=cache:jYTA7...326217334650925

However this recent remanded decision by the CAVC shows Deshotel in action-as applied by the CAVC if it is applicable-

http://search.vetapp.gov/isysquery/05bf5cb...e0210f34/3/doc/

Tracy V Nicholson

[free_spirit_etc]

Thanks Berta,

I have seen the BVA already likes to copy and paste the part about all decisions being final. The CVA though does address in their opinon that the claimants relaince on Hodge and Roberson v. Principi was misplaced because he had not argued to the VA that his claim remained unadjudicated --before reopening his claim. In my husband's case - his NOD specifically challenged the fact that his DIRECR SC claim was not addressed -- he sent in more evidence LAST YEAR to ADD to his pending claim - He sent a letter last year asking the RO to adjudicate the unadjudicated claim - once again pointing out that they had never addressed the issue. He also sent a letter asking for the status of his claim last August - asking if it had been closed or not - and if it had - that he disagred with any decision that was made to close it (in essence, a NOD). So different cases MIGHT apply - as his case is not just one where after he was granted benefits he went back and argued that the case should have been adjudicated -- He has made that claim all along - and the RO has never responded.

I still keep reading the decisions to say that the failure to adjudicate a claim is in and of itself basis for a cue..though it looks like the BVA interprets it to mean that if one claim has been denied all other claims can only be reopened by OTHER cues.

I guess I will have time to see how all the decisions play out before it would be time for me to file such a claim anyway.

This is what has taken me so long in putting together my husband's claim -reading the court cases and seeing that you should have argued this at this point and that at that point --which is why we have tried to argue everything we were suposed to argue at the points that we were.

And my husband's case isn't one where we are coming back later and saying "You should have known I was applying for this when I filed for that.' He has specifically argued all along - ADDRESS THE DIRECT SERVICE CONNECTION PART OF MY CLAIM!!!

I know you said the whole claim can be resurrected by the widow. Does this mean I should start bringing these things up in my intial claim --or should I just go for SC and address all the other issues later?

I also see that this decision really addressed the VCAA notice -- and that the Vet was NOT given approriate notice of what he needed to participate in his claim.

I know this is not a cue -- but is one of your battles with them right now.

Free

There was discussion her on Deshotel when it came out.

It has to be read in context of Andrews- here is latest I have on this odd decision:

http://209.85.165.104/custom?q=cache:jYTA7...326217334650925

However this recent remanded decision by the CAVC shows Deshotel in action-as applied by the CAVC if it is applicable-

http://search.vetapp.gov/isysquery/05bf5cb...e0210f34/3/doc/

Tracy V Nicholson

[Hoppy]

Free,

When I went to insurance investigator school they taught us to be in a position to argue both the plaintiff's case and the defendants case. Here I will be playing the devils advocate. This is just my opinion. I hope I am wrong. Free, Berta and anybody on the board feel free to tear this apart. Use my arguments to strengthen you case. I did this on my claims when one hadit member wrote opinions that I would lose many years ago. I sharpened my points and I won thanks to him.

If you are in a position to submit medical evidence that the night sweats and fatigue were early symptoms of the cancer then do it. If you are trying to say that adjudication CUED by not applying 3.307 to a claim that showed no medical link between the cancer and the night sweats and fatigue at the time of the previous decision then you are bucking established case law.

I have seen the VA use the following logic in case law. Unfortunately, It was so long ago that I read the cases I forgot exactly what the names of the cases were. In the mean time I will try to find them. The cases dealt specifically with the failure of military doctors to establish a diagnosis that was made at a later date. It was also determined that had the doctors performed tests the diagnosis would have been made and would have been sufficient to change the outcome. However, the VA did not consider the failure of military doctors to make a diagnosis to be an adjudication CUE. The responsibility of adjudication to fish for evidence was addressed by this decision and the court ruled that adjudication was not required to go fishing for medical evidence. The veteran was denied an earlier effective date of the claim.

The failure of a doctor to schedule tests or make a diagnosis is not the basis of a CUE. Furthermore, adjudication is not required to go on fishing expeditions when the doctors do not establish a link as addressed in case law prior to the VCAA. I have seen no decision that the VCAA over ruled this aspect of previous case law. Many people think the VCAA changed very little in the way cases are adjudicated. The VCAA did require that adjudication develop claims when there are diagnoses of the same name that need to be resolved. Additionally, there were previsions that the veteran had the option to seek a medical opinion for a nexus for any event in the military and a post service condition. I do not recall a burden on adjudication to seek a resolution of all possible scenarios that could develop as the result of vague symptoms that the doctors were aware of and failed to link to any specific condition while on active duty.

There is no unadjudicated claim. You are trying to turn an undeveloped portion of an adjudicated claim into an unadjudicated claim for the purpoe of getting an earlier effective date. They addressed the direct service connection and stated the medical rational was that cancer was not diagnosed in service or the presumptive period. However, they did not develop the claim any further. The problem I see is that this is starting to sound like a problem with the strength of the existing medical evidence. Not a question of whether or not it was adjudicated. It appears to me had they adjudicated the claim as you had wanted the evidence would not have been in the file to award the claim. If the medical reports you cited about the night sweats and fatigue were available to them they could say they read those reports and the doctors made no link connecting it to the cancer. If the reports were not available to them, then the question would be why not? I doubt that even if a report that made no connection between the night sweats and the cancer was available to them that this would be a significant problem. Previous case law required that the missing reports would have had to have been of such significance to change the outcome of the claim. Not only do I not see a change of outcome I do not see any significant reason that the night sweats would have been reason for additional development due to the fact that such a link was not made by the military doctors and adjudication would have had to go on a fishing expedition to explain what was causing the night sweats and fatigue.

It becomes a question if whether or not the evidence at the time of the denial would have even been strong enough to require any further development. How are they to know that the fatigue and night sweats were reason to get more medical reports and apply 3.307. There is a place on the form 9 that allows you to make this kind of statement. If you turned in the form 9 with no mention of your position they could close the claim and require you to re-open it and your medical opinion of a link between the night sweats would become new evidence. If you mentioned it on the form 9 and they closed the claim anyway then you should have appealed. I agree that the claim can be won based on submission of a medical link between the night sweats and the cancer. However, I do not see a CUE.

They will probably claim that in view of the fact that the doctors made no connection between the fatigue and night sweats to the cancer, on the original exams, it would be the claimants responsibility to advance their claim and submit the medical evidence necessary to make the connection at the time this information becomes available to the claimant. 3.307 is an avenue which allows for service connection of these types of claims. However, it is not a mandate that there be a fishing expedition to explain all unexplained or unlinked symptoms which occur in the military at the time of initial adjudication of a claim for service connection.

By the way my personal opinion is that veterans should be compensated for all disabilities which are verified by a medical history for all times the veterans are effected. All time statutes and filing requirements should be set aside. The medical facts speak for themselves. My justification is that veterans were denied their right to adaquate representation when attorneys were taken out of the loop back in the 40's or when ever it was. I am convinced that if I had an attorney of equal expertise and investigative proceedures represent me at the time of my discharge as I had when I was injured while working for city govt. I would have recieved 20 years of benefits that were denied because neither I nor my SO were qualified nor had the proceedures that would have identified disabilities that were present at my discharge yet they not were service connected until 26 years after my discharge. I posted this position long ago.

Edited June 7, 2007 by Hoppy (see edit history)