Claims Checklist:

[broncovet]

Link:

http://www.pva.org/site/DocServer/SOAR_Vol...pdf?docID=12444

Appeals Checklist & TipsIt is important for anyone appealing to the Court of Appeals for Veterans Claims (Veterans Court), to be sure to present all issues and arguments in the

opening brief. An appellant cannot wait to present them to the Court in a replybrief because the Court will not consider

them. Courts, including the Veterans Court, “have consistently concluded that the failure of an appellant to include

an issue or argument in the opening brief will be deemed a waiver of the issue or argument.” Carbino v. West,

168 F.3d 32 (Fed. Cir. 1999). See also Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990) (“Advancing different arguments

at successive stages of the appellate process does not serve the interests of the parties or the Court. Such a practice hinders the decisionmaking process and raises the undesirable specter of piecemeal litigation”), aff’d, 972 F.2d 331 (Fed. Cir. 1992).

Claims Checklist

. The supervisor of VALO, Linda E. Blauhut, PVA associate general counsel and her colleague, Jennifer Zajac, PVA assistant

general counsel, have been able to identify some of the most frequent reasons the Court has given for

remanding appeals to the VA for additional development and adjudication of veterans’ claims. By identifying the

reasons why the Court remands cases to the VA, Blauhut and Zajac were able to create a claims checklist for

use by PVA service officers as they file and develop claims by PVA members and other claimants for VA benefits.

Use of the checklist may help PVA representatives to ensure that the claims of members and other claimants

are fully developed.

Has adequate VCAA notice been provided? The Veterans Court has remanded many appeals to VA because

VA did not provide notice to the claimant of information and evidence that is necessary to substantiate his or

her claim.

Has VA provided incorrect notice? The Veterans Court has remanded many cases because VA gave the veteran incorrect information.

Have all of the veteran’s servicerecords been obtained? A surprising number of veterans’ appeals are remanded by the Veterans Court because the agency did not obtain all of the service medical and personnel records. PVA representatives should review each veteran’s claims file to ensure that all service records are present in the claims file. If not, the representative should notify the VA and request VA to obtain the missing records.

Have all of the veteran’s private medical records been obtained? Many cases are remanded because the records before the Court indicated that the veteran had been receiving private medical care but the records of that care had not been obtained. PVA

representatives should request that the veteran obtain a copy of these records and provide them to the representative for review before they are submitted to VA. When the records are obtained the representative should review them to decide whether they are relevant to resolution of the veteran’s claim.

Have all of the veteran’s VA treatment records been obtained? Many court-ordered remands are issued because all of a veteran’s VA treatment records were not obtained or reviewed by VA adjudicators. PVA representatives should ensure that all VA treatment

records have been obtained. If the records are missing, the VA should be asked to obtain them for incorporation into the veteran’s claims folder.

Is the VA examination or VA medical opinion adequate? Many cases are remanded by the Court because of inadequate VA examinations or opinions. PVA representatives should closely examine VA examination reports and medical opinions to ensure that they are adequate and respond to the medical issues involved in each claim. If found inadequate, the representative should

inform the VA and request that the agency obtain a more accurate examination report or medical opinion. If it appears to the veteran’s PVA representative that VA’s examination report or medical opinion does not support the veteran’s claim, the representative should notify the veteran of this conclusion and should advise the veteran to obtain and submit a medical opinion

that supports the claim to benefits. Many claims for VA benefits require detailed and well-reasoned medical opinions or examination reports. When reviewing the quality of medical opinions or examination reports, try to ensure that they are complete and

unambiguous. If they are incomplete, confusing, or ambiguous, request that VA obtain a more complete medical opinion or examination report. See 38 C.F.R. § 4.2 (2004) (requiring that, if examination report “does not contain sufficient detail, it is incumbent upon the [RO] rating board to return the report as inadequate for evaluation purposes”); see also Bowling v. Principi,

15 Vet.App. 1, 12 (2001) (emphasizing the BVA’s duty, under 38 C.F.R. § 19.9 (2000), to return inadequate examination report); Hicks v. Brown, 8 Vet.App. 417, 422 (1995) (1995) (concluding that inadequate medical examination frustrates judicial review).

Did VA inform the veteran of the need to obtain and submit an expert medical opinion? The Veterans Court frequently finds it necessary to remand an appeal because VA did not inform the veteran that he or she should file an expert medical opinion to support a claim. PVA representatives should review a veteran’s records to determine whether to advise the veteran to obtain

and submit an expert medical opinion that supports the veteran’s claim.

Did VA provide the veteran with an adequate personal hearing? Did the VA official conducting the veteran’s personal hearing inform the veteran of all of the issues involved in the case?

Did the VA hearing official also suggest to the veteran that the veteran should obtain and submit necessary information and evidence to help support his or her claim to VA benefits?

During the hearing the veteran’s PVA representative should ask the VA hearing official to state, on the record, what he or she believes the issues to be in the case. The veteran’s PVA representative should also ask the VA hearing official to state, on the record,

whether the veteran needs to obtain and file additional evidence to support his or her claim.