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

[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.