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

[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.

[broncovet]

Allan is no doubt right. I call it the "weasel" clause. The VA wants to weasel out of paying as much as it can possibly get away with. So, they give "lip service" to the regulations, and then delay and deny anyway.

[deltaj]

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......

From your description it appears that V.A. erred in failing to consider your last V.A. medical examination in the original decision. Recently I posted a new topic on a federal circuit decision that V.A. most obtain all service medical records before making a decision. Please read that case because it might be useful to you.

Edited September 2, 2009 by deltaj