Court Case On Bva Considering All Evidence Of Record

[deltaj]

I just read the following case: United States Court of Appeals for the Federal Circuit 99-7094, -7102 Christine Hix Claimant-Appellee and Mary L. Pardue Claimant-Appellee v. Hershel W. Gober Acting Secretary of Veterans Affairs Respondent-Appellant decided September 20, 2000. The final paragraph is a real zinger in that it states BVA must consider all evidence of record. I think the case is about entitlement to DIC by a widow but the issue of consideration by BVA of all evidence of record is a broad issue that pertains to veterans also in my opinion. Could someone post a link to this interesting federal circuit case? I found it by searching google under 38 USC 1318.

Edited June 23, 2009 by deltaj (see edit history)

[Pete53]

http://www.ll.georgetown.edu/federal/judic...ns/99-7094.html

[john999]

Me and my lawyer believe that if the VA does not consider all the evidence of record in a rating then it is CUE. If VA "must" consider all evidence of record and they don't do it then that sounds like a CUE to me. Are we wrong because we are betting the farm we are not wrong?

[Berta]

The VA at any level- VARO or BVA must consider all evidence of record-

I posted the Evidentiary regs here many times on that-

However they can also reject evidence that is not new and material (for re-opened claims) nor probative to the original claim.

I cannot open my Word docs but believe these regs are in 38 USC 4.3 and 4.6 or it is 38 CFR 4.3, 4.6.

And in M21-1.

[john999]

In my CUE case the VA had the evidence, but simply refused to consider it. It was a medical report from my doctor. They only used the evidence from their doctor. They did not list or refer to my doctor's evidence at all in the decision. This is an old one, but a bold one. My doctor said I was IU and incapacitated. The VA gave me 10% based on in-patient records from a stay at the Tampa VA in 1972. It burns me. The gulf between IU and 10% is wide. It was a crazy final decision. I am going to the BVA so I may not live to win or lose it.

[vaf]

These might also help:

VA is required to consider all the evidence of record, including medical records and all pertinent lay statements. See Harder v. Brown, 5 Vet App. 183 (1993).

The Board of Veterans Appeals cannot rely only upon evidence it considers to be favorable to its position. It must base its decision upon all the evidence of record. See Smith v. Derwinski, 2 Vet.App. 137,141 (1992) citing Willis v. Derwinski, 1 Vet.App. 63, 66 (1990).

The Board of Veteran's Appeals' failure to address evidence in its decision is indicative of whether it considered such evidence. See Douglas v. Derwinski, 2 Vet.App. 435, 440 (1992).

[broncovet]

VAF

Those were very handy court cases, and a very excellent post. Thanks

Bronco

[Quint7]

I don't know if this is similar to what John999 said, but I am appealing my effective date for right knee issues that are rated at 20%. It was 0% end of since service (07/1994) and then 10% since about Oct. 2006, which I appealed and was granted 20%.

In my statement I claimed a few things;

My symptomology in 1994 was almost exactly that of today.

I never received a C&P notice in 1994 even though I never had a single issue with mail at that address.

I had years of records in my SMR's about the knee problems, including a statement from a Navy Doc that "not severe enough to rate a medical board" and at my final physical "doctors told said named Marine that 'nothing can be done about the knee',".

I was seen 4 months or so before my dischrarge and diagnosed (again......) with patellafemoral syndrome.

So in my reply last week I stated that I wanted my EED to be the date of discharge. I listed the evidence in my C-file pertaining to proof I didn't blow off the exam, listed all of the above stuff and then said that none of that mattered because........

the rater failed to take all evidence in my SMR into account and based the 0% on 2 things-

Failure to show to the C&P

That I stated at my final physical "the knee is not really a problem". (the final phys. took place BEFORE the last knee visit where I was told I had patellafemoral syndrome).

The rate said that there was a long history of knee problems but based on that one statement and my failure to show they HAD to give me a 0% rating.

I refered to Hyson v Brown about failure to appear for an exam not being a reason to rate a claim at 0% (or deny it, cant remember) unless VA has taken resonable steps to track the vet down to find out why they didn't appear for exam if they are just out of the service. VA didn't do this as I submitted proof that I used the VAMC and collected the GI Bill at the time I failed to show.

But then again I stated that no matter what, when ALL of the evidence in my SMR's was looked at I obviously rated the same 20% I am rated at now because everything is the same as it was from 1989-94 when I was seen over and over for the knee.

I debated using the word CUE but did it anyway. I then also said that a simple De Novo will show the error so hopefully it won't freak everyone at the VARO out when they see CUE.

Like I said, I don't know if it will fly, but it honestly seems cut and dry to me. The rater failed to look at ALL of the evidence in the SMR and chose to ONLY apply the things that would grant me the most basic benefit. I also mentioned that since I never received a copy of this decision (as all of the statements I made in 2006 about not knowing I was ever rated at any % support) it could not be considred abandoned and therefore final.

We will see......

[Pete53]

Good Luck.

If it had not been for John999 I would not have an S rating and 309 extra bucks a month.

[john999]

If you are filing a CUE on a final RO decision I doubt a DRO will approve it because they do not have the guts to award significant retro even if your claim is perfect. They will kick it upstairs to the BVA. This is why you need a lawyer in my opinion. My DRO agreed at the hearing that my original decision was in error, but the written decision was a denial because we were looking at 30 years of retro. That is what my lawyer said and I agree. So now to the BVA on a claim that could have been done at the RO because of a lack of guts. Imagine some DRO granting a 200,000 dollar retro claim that goes back 30 years. He would be overruled by someone who just won't accept that responsibility at the RO level. These guys care about one thing and that is they backsides. If denied at the RO level get a lawyer to write the brief for the BVA. It will be worth it not to make mistakes they can take advantage of and screw you again for 10 years. Someone like Berta, can do this on her own but I am not up to it. I want an expert doing it even if I do pay 20%. Any time I can hire an expert I do it unless I just think it is something I know I can do with my resources.

[Quint7]

John I agree completely. I figure I'll give it a shot. It is only $13000 or so and they just gave me that in backpay for my IVDS/DDD a few months ago. And Buffalo seems to be on a "claim approved" kick lately, so II'll take a shot but definately will lawer up if its denied.

[Berta]

"Me and my lawyer believe that if the VA does not consider all the evidence of record in a rating then it is CUE. If VA "must" consider all evidence of record and they don't do it then that sounds like a CUE to me. Are we wrong because we are betting the farm we are not wrong?"

I feel you are right as long as the evidence is material and probative to the claim.

I can only use here one of my pending CUEs as example-

the veteran-my husband-had undiagnosed and untreated heart disease evident back to 1988.

MY wrongful death award clearly stated that this was only one of the numerous VA medical errors that caused his death.

They failed to rate his CAD at all.No diagnostic code whatsoever and no %- 1997 decision.

My Rep at the time questioned that as well as the fact there was no SMC consideration.

But he didnt advise me to file an NOD and like a dope I didnt.

In 2004 I realised this was a CUE.

The failed failed to consider all probative evidence in a rating decision of 1997.

They have been going round and round with me since 2004 on this claim.

I got a 60 day letter in May-the one where you have to tell them within 30 days that you need 60 days-

and I clearly stated my newest position-

the recent direct SC death award I got made this CU a moot issue and I want the proper SMC posthumous award.

They have to rate the veterans CAD and other disabilities from DMII properly as SC now anyhow.

An improper rating percentage and/or diagnostic code set up CUE if those errors could have materially changed the outcome of the decision being cued.

Although medical decisions and opinions are not basis for CUEs-it is the legal percetage and diagnostic codes that become the legal errors when the VA interprets the medical evidence and opinions and then errs in application of the Schedule of Ratings in 38 CFR.

[Quint7]

This is a little off topic and some venting, but what really gets me about my situation is that the 0% I was "given" (but not informed of in 1995) would have triggered an appeal for sure and even if I had been moved to 10% I would have received points on promotion tests at work and maybe BEEN promoted because of them (I'm a fireman), not had to pay VA funding fees for the 3 houses I bought between 1999 and now and would've had the property taxes lowered a little more on these houses.

I made a point of stating those facts in a few of my letters for my claims.

These decisions affect vets in a lot more ways than just getting some cash from Uncle Sam.

[Berta]

Quint-it does seem that VARO Buffalo is approving more claims these days-

but the award letter they sent me last month is all wrong and it went back to the appeals team.

I emailed them what it should have stated.I waited for over 6 years to see that the VA recognized that undiagnosed and untreated Agent Orange DMII is what caused my husband's death (which trumps the past FTCA and 1151 awards I got-2 distinct and separate matters)

and the award granted me direct SC death but never mentioned Nehmer or Agent Orange or hericides.

The letter actually states they have continued the award under 1151 as the "greater" benefit when the BVA award itself states clearly that they have to pay me ancillary benefits,and send me the FTCA offset due to direct SC death and direct SC DIC.BVA clearly awarded under the AO regulations.

But VARO ignored what the BVA award said and conveniently forgot the auspices of Nehmer, allowing me ALL accrued benefits that were due the veteran in his lifetime.

They are awarding but manipulating awards these days hoping we do not realise they are withholding our money.

My daughter suggested I post this award on the net to help other AO vets as it indicates that VA will SC any Vietnam vet with heart disease.

But the reality is that wont work- VA only SCs CAD related to DMII due to AO.

The BVA award made that clear but VARO Buffalo conveniently 'forgot' to add that critical part of the award-

I cannot apply for nor receive additional Chap 35,refund of 6,000 Chap 35 tuition expense, additional burial expense refund, REPS benefits- 17,000 there alone ,posthumous accrued benefits due the veteran to include SMC,the FTCA 5 figure offset amount, nor the VA Home Loan Guaranty until they properly prepare this award letter.

All of this above adds up to tune of 92-92,000 or more-so it was quite advantageous for VA to send me this erroneous award letter-to stave off paying the money.

These things are not isolated clerical errors- these are deliberate ways for VA to make awards on paper, to show they have an EP code to finalize a claim-

yet keep those financial coffers padded with our money-hoping we will buy what they are selling when they send out ludicrous award letters like what I got.

I asked them to CUE themselves as the award letter is in absolute defiance of all established VA case law and regs and overlooked the Nehmer decision and the fact that I am a Class Action Nehmer widow.

I wonder how many millions the VA saves when they do this stuff.

I know they withheld almost 30 million in the 1990s this way -from AO vets and widows in defiance of the Nehmer Court Order.

[mightyoak]

Hum, This is a very interesting thread. I have had some issues with the Va on looking at all the evidence in my case. At first they would not budge, but I kept badgering and badgering and over loading them with evidence. When I received their SOC I was happy that all my evidence WAS included. Maybe that was lady luck again. I have a feeling I am going to learn alot by reading all these threads. All these posts on this huge site sure explains to me that what I am running into is just typical. And I thought it was all me!

[john999]

I think Berta is showing us why we need expert help with CUE's. She is a self-taught expert, but she can't help us with the infinite details of our potential CUE's at the RO or BVA. One word that seems like you are asking the VA for a judgement call to weigh evidence and your CUE will just die. That is an easy mistake to make if I understand these CUE's in a humble way.

[Quint7]

I thought that I would post, word for word, the decision from 1995 for my knee. it is only a couple of paragraphs. I am adding the bold type, not the VA.

In the paragraph above the knee rating is this statement about a shoulder claim I filed upon discharge.

"The veteran was scheduled for a VAE. The veteran failed to report for the scheduled VA Examination. The exam request was returned as "undeliverable". it is the veterans responsibility to keep the VA aware of his current mailing address. No request to reschedule the examination was received. In the absense of such a request, or an indication that the veteran is willing to report for an examination, the claim is considered based on the evidence of record.

On to the knee.

The veteran was seen on 10-89 with a complaint of right knee pain when running, marching and standing. The veteran was diagnosed with a medial meniscus tear. SMR's show on 2-90, the veteran complained of pain to the right knee. The veteran was seen on multiple occasions with the complaint of right knee pain.

Records dated 4-90 show the veteran was treated for right knee patella femoral pain. SMR's dated 10-93 show the veteran was treated for complaint of exacerbation of an old knee injury while playing basketball. During treatment the veteran stated that "the knee is really no problem". The veteran did not report to the scheduled VAE.

Service connection is granted for right knee condition as the evidence shows onset of the condition(s) during military service. Disabilities of the musculoskeletal system result in anotomical damage, functional loss and evidence of disuse, and/or abnormal excursion of movement. In determining evaluations for disabilites involving the knee, consideration is given to objective evidence of limitation of flexion and extension, subluxation, lateral instability, painful motion, weakness and radiological findings demonstrating joint abnormality. Clinical evaluation of the knee shows normal motion, no evidence of pain or crepitance on movement no joint deformity, no swelling, no atrophy, no instability, and no circulatory disturbances. there are no findings of impairment of the knee which meet the requirements for a compensionable evaluation. Accordingly, a noncompensable evaluation is assigned.

The next issue was my lower back (which has since been diagnosed/ treated as IVDS/DDD and on appeal granted SC).

The decision states as one of the reasons for denial of SC as;

SMR's dated 10-93 shows the veteran was treated for low back strain after playing basketball. Theveteran described a twisting injury. The diagnoosis was lumbar strain. Separation exam is silent for complaint of back pain.

So...... the way I read that decision is:

1) A claim MUST be considered based on the evidence at hand if the vet fails to show for a C&P. (they had my SMR's).

2) VA states that "clinical evaluation" showed no problems with my knee at all (they pretty much covered any issue other than amputation in that statement).

3) Separation exams MUST weigh heavily on claims immediately post service as it is used as a reason to deny any back problems.

So, for issue 1, they didn't look at my SMR's or they would see that in March 1994 I was seen again for the knee and diagnosed with patella femoral syndrome with pain, swelling, tenderness and crepitis. For issue 2, I never had a clinical evaluation by VA as they state that I "failed to show for a VAE", so are they using my military exams? Because all of those show the symptoms I listed above. Finally for issue 3, my separation exam (done on April 4, 1994 which was 4 months before my discharge) states that i have right knee patella femoral syndrome, a right knee AC sprain and my statement that "Iam in good health other than pain in the right knee and both shoulders, chronic athletes foot, scars and hay fever". I also checked the following boxes yes under "do you have?"; swollen or painfull joints, cramps in the legs, trick or locked knee, and I checked "maybe" for bone or other joint deformity. The examiner also handwrote "chronic shoulder and knee pain, evaluated by ortho and told "nothing can be done".

So my point (that was a LOT longer than I planned, sorry) is that a layman could read these records and come to at least a 10% rating, but if I remember a few posts Rentalguy or someone put up, patella femoral syndrome is a automatic 20% rating.

The rater used the excuse of failure to show as a decision and then did a quick flip though my record to list some evidence to at least give SC.

So CUE or not, I'm gonna take this on. $13000 isn't gonna break VA but it will sure as hell be nice to have.

[john999]

The VA slam/dunked you because they say you did not show up for your C&P exam. If you don't go for the exam you almost always lose.

[Quint7]

Yep. BUT, I had just been discharged and they made no attempt to "track me down" to find out why I didn't show. They also didn't contact my former unit, my next of kin or the other VA dept.'s (Education and Medical) to see if they had another address or anything for me. I was also listed in the local phone book.

But as i said, none of that matters because me SMR's show that my condition was obviously ratable at more than 0%. That failure to show scam is just that, a scam.

Hyson v Brown (while saying that this case is specific to Hyson's claim only) said:

"Generally, it is the burden of the veteran to keep the VA apprised of his or her whereabouts. It is only where a file disclosed other possible and plausible addresses that an attempt should be made to locate him at the alternate known address before finding abandonment of a previously adjudicated benefit."

And

"M21-1, Part IV, para 25.05a, NOTE 3, gives instructions for determining whether a better address is of record when notification of an examination appointment is returned as undeliverable. M21-1, Part IV, para 9.04 deals with a claimant's refusal or failure to provide a current address in a predetermination situation. Para 9.11 covers notification to the beneficiary of the final decision. Perhaps these latter paragraphs should address the issue of undeliverable mail.

It is also noted that, through the Patient Inquiry command in the AMIE System, regional offices can access local VAMC hospital records for addresses. Although this is not a nationwide capability, it does offer another avenue for trying to locate a veteran. The cited manual paragraphs do not reference the AMIE System."

(This is a 1993 decision, I was discharged in 1994 and my claim "rated" in early 1995).

Again, I'm not a lawyer and that case is that case, but I asked on here I think or in person what the VA is supposed to do at a minimum if any notice is returned as undeliverable and was told that they are supposed to at least check with other dept.'s of the VA. I also believe that i had read that when a vet's claim is immediately after discharge that VA is to contact the vet's last known unit for any info about a change of address. Also, my paperwork listed my parents address back in NY as my "home of record" and no attempt was made to contact them about m failure to appear.

Like I said though, my SMR's had sufficient info to rate me higher than 0% no matter what, which goes back to the original topic of this thread that VA MUST consider ALL evidence.

(Sorry if it looked like I was hijacking the thread everyone!)

[broncovet]

Roberson vs Principii, Federal Court 2001 states:

"Roberson alleges that Norris v. West, 12 Vet. App. 413 (1999), is applicable and holds that the VA’s requirement that TDIU be specifically requested “loses sight of the Congressional mandate that the VA is to ‘fully and sympathetically develop the veteran’s claim to its optimum before decision on its merits.’” Norris, 12 Vet. App. at 420 (citing Hodge v. West, 155 F.3d 1356, 1362-63 (Fed. Cir. 1998)). Although Norris does not bind this court as precedent, it is both on-point and informative.

The facts of Norris are similar to the present case. Norris was rated 70 percent disabled from a mental disorder. Id. at 415. His rating was increased to 100 percent based on 38 C.F.R. § 4.16 (i.e., the same basis for increasing Roberson’s rating to 100 percent). Id. at 416. Before the Court of Appeals for Veterans Claims, Norris alleged CUE in not giving him an earlier effective date for his 100 percent rating. Id. The government alleged that an informal claim for TDIU was not raised under the specific facts of Norris’s case because entitlement to TDIU requires a showing of at least an informal claim specifically alleging TDIU. Id. The Court of Appeals for Veterans Claims rejected the government’s argument because such a position “loses sight of VA’s congressional mandate that VA is to ‘fully and sympathetically develop the veterans’ claim to its optimum before deciding it on its merits.’” Id. at 420 (citing Hodge v. West, 155 F.3d 1356, 1362-63 (Fed. Cir. 1998)). In addition, the Court of Appeals for Veterans Claims stated that developing a claim “to its optimum” must include determining all potential claims raised by the evidence and applying all relevant law and regulation raised by that evidence regardless of how the claim is identified."

I read the above to mean that the VA cant ignore evidence, and must consider all evidence. JMHO

[allan]

They don't have to ignore it. They can glance over it, making one sentence in the SOC referencing it and giving it no or little weight is giving the evidence consideration at the VARO & BVA level. Isn't it?

In some instances, very little remarks are given as to why they give such little weight to it.

Or, they can agree that the IMO you submit has some merit(even though it's fully favorable), enough to order yet another IMO to try to shoot it down, but not grant the claim. Then the perpetual wheel of remand starts again.