Request To Revisit A Previous Decision.

[Hoppy]

In the continuing saga of a veteran who I am helping a service officer suggested that I request the RO to revisit a previous denial. I recently obtained a medical opinion from a licensed clinical psychologist who was a staff clinician at a local VA hospital. This clinician stated in her report that she has treated hundreds of cases of panic disorder while working for the VA or the last 15+ years. The clinician also stated that she has performed compensation and pension examinations. The veteran's claim was previously denied without a C&P exam, which forced me to obtain the report from this staff clinician.

The staff clinician summarily stated that the veteran currently has a panic disorder subsequent to a progression of symptoms noted by qualified examiners while serving in the military meeting the DSM IV criteria for panic disorder and the condition was of such prolonged development and lack of treatment resulted in a chronic condition prior to discharge. The full report is three pages long. I intend to submit this report as evidence in support of the claim.

I am upset that this veteran's claim was denied illegally without a C&P exam. I have explained to the service officer that had the VA followed the law the exam that I obtained would have been developed through the C&P process. I told the service officer that the failure to provide a C&P exam was in direct defiance of federal circuit court instructions involving cases whereby the VA determines that new and material evidence is required because the VA has wrongly confused the material facts of a new claim with a previously denied and closed claim.

I am advancing the position that new and material evidence should not have been a requirement and the position taken by the VA that they could not schedule a C&P exam until the veteran obtain a new and material evidence created an illegal and unnecessary delay. This type of delay is atypical in that it requires extensive and sometimes expensive reports and totally circumvents any development of a claim by the VA prior to a denial. This type of decision should be given full and careful consideration. A denial of a C&P exam can create undue hardship and expense. As such, a separate expedited appeal process should be available. The fact that the BVA in many cases is citing the federal circuit court decision and remanding C&P exams on claims that were denied without a C&P by this RO and other RO's should be investigated to determine if the RO's are willfully circumventing the requirements detailed by the federal circuit court. Understanding and implementing the court's decision could be interpreted as an elementary duty of an individual's job. Failure to perform elementary duties of a job has been determined to be gross incompetence. Additionally, due to the fact that the veteran at the time he was notified that he needed new and material evidence was not given any explanation as to his rights to appeal the determination that he needed new and material evidence the claim should now be expedited to put it back on schedule as though a C&P exam had been properly obtained prior to the denial.

Initially the service officer told me there was nothing I could do except appeal the denial. After I got done explaining to her my position as I described above the service officer tells me to advance a request to revisit the claim.

Edited October 1, 2009 by Hoppy

[akwidow]

hmm. It's amazing how light bulbs go off. I just realized that there was never a C&P for AO, which my late hisband also filed for and was denied in 2003. I found evidence of undiagnosed heart disease and DMII in his VA medical records. I guess I better do something about that too.

Thanks again for all your work and wisdom.

[Pete53]

Wings and Hoppy are really good at digging out info needed for claims.

[deltaj]

x

x

x

Yes Mam! CAVC SEARCH: http://search.uscourts.cavc.gov/ ~~~~Wings

Morton v. West

96-1517 Jack W. Morton, Appellant, I. BACKGROUND The appellant, Jack W. Morton, served in the U.S.

[14 Jul 1999] http://search.uscourts.cavc.gov/isysquery/...4e17692/22/doc/

96-1517 Jack W. Morton, Appellant, the right upper extremity were not well grounded. Morton v. West , __ we voted for, a full Court decision in Morton v. West [29 Jul 1999]

http://search.uscourts.cavc.gov/isysquery/...4e17692/23/doc/

Morton Overturned

On November 9, 2000, the President signed into law the Veterans

Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475,

114 Stat. 2096 (2000).

Among other things, this law eliminates the concept of a

well-grounded claim, redefines the obligations of VA with

respect to the duty to assist, and supersedes the decision of

the CAVC in Morton v. West, 12 Vet. App. 477 (1999) withdrawn

sub nom. Morton v. Gober , 14 Vet. App. 174 (2000) (per

curiam order), which had held that VA cannot assist in the

development of a claim that is not well grounded.

This change in the law is applicable to all claims filed on

or after the date of enactment of the VCAA, or filed before

the date of enactment and not yet final as of that date.

VCAA, Pub. L. No. 106-475, ง 7(B), 114 Stat. 2096, 2099-2100

(2000), 38 U.S.C.A. ง 5107 note (Effective and Applicability

Provisions); see generally Holliday v. Principi, 14 Vet.

App. 280 (2001); see also Karnas v. Derwinski, 1 Vet.

App. 308 (1991). On August 29, 2001, the final regulations

implementing the VCAA were published in the Federal Register.

The portion of these regulations pertaining to the duty to

notify and the duty to assist are also effective as of the

date of the enactment of the VCAA, November 9, 2000. 66 Fed.

Reg. 45,620, 45,630-45,632 (August 29, 2001) (to be codified

as 38 C.F.R. 3.159).

Where the law and regulations change while a case is pending,

the version more favorable to the veteran applies, absent

congressional intent to the contrary. Karnas v. Derwinski, 1

Vet. App. 308, 312-313 (1991).

The Board is of the opinion that the new duty to assist law

has expanded VA's duty to assist (e.g., by providing specific

provisions requiring notice of what is required to

substantiate a claim), and is therefore more favorable to the

veteran. Therefore, the amended duty to assist law applies.

Id.

During the pendency of the veteran's claim, the United States

Court of Appeals for the Federal Circuit (CAFC) overturned

and vacated some parts of the development regulations. See

Disabled American Veterans et al. v. Secretary of Veterans

Affairs, Nos. 02-7304, -7305, -7316 (Fed. Cir. May 1, 2003).

Thank you, Wings. You are a lifesaver. I can see where this law is very applicable to my husband's case.

[deltaj]

Thank you, Wings. You are a lifesaver. I can see where this law is very applicable to my husband's case.

Wings, Could you supply a link to the Federal Circuit case which overturned parts of the VCAA?

[Wings]

x

x

x

Delta, It was not, in fact, the Federal Circuit that overturned Morton's "well-grounded" threshold for the duty to assist; it was US Congress in 146 Cong. Rec. H9913-14 (Oct. 17, 2000). ~Wings

Note: The Links I provided yesterday to the Morton cases, from the COAVC, appear to be broken today! Let's try this again!

A. Court's Decisions and Opinions http://search.uscourts.cavc.gov/

B. Search term, "Morton v West".

I like to search by Panel decisions rather than single judge, because I like to read the dissenting opinions! So I pull up the Panel decisions, sort by date, right click click on the highlighed "details" (right click to open in a new tab --you can open many tabs at one time); click "view", read it and weep ...

C. results

12. 96-1517 (Quick View | Details | Similar)

96-1517 Jack W. Morton, Appellant, I. BACKGROUND The appellant, Jack W. Morton, served in the U.S.

14 Jul 1999

11 hits

51.1K

13. 96-1517 (Quick View | Details | Similar)

96-1517 Jack W. Morton, Appellant, the right upper extremity were not well grounded. Morton v. West , __ we voted for, a full Court decision in Morton v. West , __

29 Jul 1999

49 hits

54.1K

D. Read more cases whereby you see clearly "Morton v West". From the dates you will progression from the Morton case (and other's similar) (1999), to passage of the VCAA (2000). Discussions focus on C&P examinations, well-grounded, presumptive conditions such as AO, duty to exist, etc.

Here's a piece with pertinent detailed with history:

Duenas v Principi (2004)

II. ANALYSIS

A. Duty to Provide a Medical Examination under 38 U.S.C. 5103A(d)

1. Applicable Laws and Regulations

Even prior to the enactment of the Veterans Claims Assistance Act of

2000, Pub. L. No. 106- 475, 114 Stat. 2096 (Nov. 9, 2000), VA had a duty

to assist claimants "in developing the facts pertinent to a claim" and

that duty to assist included, in certain situations, providing the

claimant with a medical examination. 38 U.S.C. 5107(a) (1999); see

Green v. Derwinski, 1 Vet.App. 121, 124 (1991).

However, under a line of cases decided prior to the enactment of the VCAA

of 2000 and culminating in this Court's decision in Morton v. West, that

duty was not triggered unless a claimant first demonstrated, as a

threshold matter, that the claim at issue was well grounded. Morton, 12

Vet.App. 477, 486 (1999); Caluza v. Brown, 7 Vet.App. 498, 505-06 (1995),

aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table).

A claim was considered to be well grounded if the claimant provided

"competent evidence of current disability (a medical diagnosis), . . .

of incurrence or aggravation of a disease or injury in service

(lay or medical evidence), . . . and of a nexus between the in-service

injury or disease and the current disability (medical evidence)."

Caluza, 7 Vet.App. at 506. Whether the claimant ultimately prevailed

on the merits of the claim was a separate matter. See id. at 507-13.

Displeased with the Morton decision, which the Committees on

Veterans' Affairs deemed a "significant barrier to veterans who need

assistance in obtaining information and evidence in order to receive

benefits from . . . VA," Congress eliminated the well-grounded-claim

requirement by enacting the Veterans Claims Assistance Act of 2000.

See 146 Cong. Rec. H9913-14 (Oct. 17, 2000) (Explanatory Statement by the

House and Senate Committees on Veterans' Affairs); Luyster v. Gober, 14

Vet.App. 186, 186 (2000).

The Committees also noted that under VA's "claimant friendly" and

"non-adversarial" adjudicative system, "VA must provide a substantial

amount of assistance to a [claimant] seeking

benefits." 146 Cong. Rec. at H9913(citations omitted).

Congress highlighted the importance of providing medical examinations and opinions

as part of that assistance by establishing standards for determining when

VA is required to provide examinations and opinions. See 38 U.S.C. 5103A(d).

Under the new legal framework, there is generally no

prerequisite to receiving VA assistance; VA is simply required to assist a

claimant at the time that claimant files a claim for benefits. See 38 U.S.

C. 5103A(a); 38 C.F.R. 3.159© (2003). Whether the claimant prevails on the

merits of the claim, however, remains a separate matter.

Under section 5103A(b), VA's duty to assist includes making

"reasonable efforts to obtain relevant records," such as service medical

records, records from VA health-care facilities, and private medical

records, so long as the claimant adequately identifies those records to

the Secretary and authorizes the Secretary to obtain them. Depending on

the record of evidence provided by the claimant, or after any such

development, VA's duty to assist may also include,

under section 5103A(d), providing a claimant with a medical examination:

(1) In the case of a claim for disability compensation, the

assistance provided by the Secretary under subsection (a) shall

include providing a medical examination or obtaining a medical

opinion when such an examination or opinion is necessary to make a

decision on the claim.

(2) The Secretary shall treat an examination or opinion as

being necessary to make a decision on a claim for purposes of

paragraph (1) if the evidence of record before the Secretary, taking

into consideration all information and lay or medical evidence

(including statements of the claimant)- that

(A) contains competent evidence that the

claimant has a current disability, or persistent

or recurrent symptoms of disability; and

(B) indicates that the disability or symptoms may be

associated with the claimant's active military, naval, or air

service; but

© does not contain sufficient medical

evidence for the Secretary to make a decision on

the claim.

38 U.S.C. 5103A(d)(emphasis added); see Wells v. Principi, 326 F.3d

1381, 1384 (Fed. Cir. 2003) (holding that proof of current disability

alone is insufficient to trigger Secretary's obligation to provide medical

examination); Charles v. Principi, 16 Vet.App. 370, 374-75 (2002)(holding

that appellant's own lay testimony regarding symptoms is sufficient to

satisfy section 5103A(d)(2)(B) when symptoms are "capable of lay

observation").

The Secretary implemented section 5103A(d) in 38 C.F.R. 3.159©(4)(i),

which was made applicable to any claim for benefits pending before

the Department and "not decided by VA" as of November 9, 2000. 66 Fed.

Reg. 45,620, 45,629-31 (Aug. 29, 2001).

Under the regulation, an examination is necessary

if the information and evidence of record does not contain sufficient

competent medical evidence to decide the claim, but does:

(A) Contains competent lay or medical evidence of a current

diagnosed disability or persistent or recurrent symptoms of

disability;

(B) Establishes that the veteran suffered an event, injury[,]

or disease in service . . . ; and

© Indicates that the claimed disability or symptoms may be

associated with the established event, injury, or disease in service

or with another service-connected disability.

38 C.F.R. 3.159©(4)(i) (emphasis added).

Although the regulation contains a requirement that is not present in

the statute, namely the requirement that the evidence of record "[e]

stablishes that the veteran suffered an event, injury, or disease in

service," the U.S. Court of Appeals for the Federal Circuit has held that

the regulation is not in conflict with the statute. Paralyzed Veterans of

Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003).

In this regard, the Court notes that under section 5103A(a)(2) of the

statute, the Secretary "is not required to provide assistance to a

claimant under this section if no reasonable possibility exists that such

assistance would aid in substantiating the claim."

Because some evidence of an in-service event, injury, or disease is required in order to

substantiate a claim for service connection and because a postservice

medical examination could not provide evidence of such past events, a

medical examination conducted in connection with claim development could

not aid in substantiating a claim when the record does not already

contain evidence of an in-service event, injury, or disease. See

Paralyzed Veterans of Am., 345 F.3d at 1355-57.

In addition, when deciding whether, under section 5103A(d) and

3.159©(4), to provide a claimant with a medical examination, the Board is

required to provide a written statement of the reasons or bases for its

conclusion. 38 U.S.C. 7104(d)(1). That statement must be adequate to

enable a claimant to understand the precise basis for the Board's decision,

as well as to facilitate review in this Court. See Gilbert v. Derwinski,

1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must

analyze the credibility and probative value of the evidence, account for

the evidence that it finds to be persuasive or unpersuasive, and provide

the reasons for its rejection of any material evidence favorable to the

claimant. See Caluza, 7 Vet.App. at 506. In the absence of a finding of

nonprejudicial error, vacatur and remand is warranted where the Board has

failed to provide an adequate statement of its reasons or bases for its

determinations. See Tucker v. West, 11 Vet.App. 369, 374 (1998); Soyini

v. Derwinski, 1 Vet.App. 540, 546 (1991) (holding that failure to provide

adequate statement of reasons or bases does not necessitate remand "in the

face of overwhelming evidence in support of the [board's] result in a

particular case").

[cowgirl]

Wings, nice - certified Hadit paralegal trainer! Thanks for the simple and necessary lesson. My jaws tighten when I see the terms well grounded, gets ambiguous to me and returns nightmares of my earlier failed claims. Can't tell you how many times I've gone back to reread my claims decisions after many of your helpful posts. Sorta hits me like, Gee, I shoulda had a V8!