Vet Lawyer's Response To Follow Up

[Berta]

Vet Lawyer's response

for free spirit......and others here who read the post it regarded:

I dont remember what forum you posted the question in regarding Chris

Attig's blog :

"if the Veteran would have provided that evidence to prevail in his or claim but for a failure in the VA’s Duty to Assist, then it is possible that an “accrued benefits” claim can be reopened for submission of additional evidence."

This is part of Chris' email response to me to the Duty to Assist part:

“The DTA approach is just one of many techniques to try to reopen a previously denied and unappealed AB claim, but it needs to be coupled with NME that would likely have been provided if requested in a VCAA Notice. It's a tough row to hoe, but I've used the approach.

And while I am not 100% sure, it may not be a viable approach in a pre-VCAA claim. In those situations, however, a due process violation MIGHT yield the same result; reopening.

The case u referenced by link did not use that approach. It was an AB case which required readjudication IAW Nehmer. Since VA violated Nehmer, we reopened on appeal."

I just wanted to make sure we all are on the same page.here. DTA has no impact at all, in my opinion on any current claims.That is what the VCAA is for.

[harleyman]

Berta states- just wanted to make sure we all are on the same page.here. DTA has no impact at all, in my opinion on any current claims.That is what the VCAA is for.

can you elaborate for me here. Not sure I am getting what this is meaning or where it is going. - Harleyman

[Berta]

I finally found the post:

I get nervous when anyone brings up the Pre VCAA DTA regs.

Hell VA violated DTA in MOST of our cases prior to year 2000.

DTA violations dont raise to level of CUE and I think Chris Attig

gave a very good response.

"And while I am not 100% sure, it may not be a viable approach in a pre-VCAA claim. In those situations, however, a due process violation MIGHT yield the same result; reopening.'

I agree with him and would think a 3.156 claim would be better then a DTA pre VCAA violation claim.

I have been in the veterans online claims communities since 1988 and many vets tried to raise futile DTA violations with the VA ,in the past ,yet didn't have the evidence they needed to succeed.anyhow.

DTA was a right we all had but the right had no meat and potatoes if they violated it.

It was sort of like all the anti discrimination to Vietnam vets employment laws we had in the 1970s and 1980s. They didnt mean crap.It was all DOL lip service from our so called grateful nation.

Edited October 5, 2013 by Berta

[free_spirit_etc]

Thanks Berta! That was quick!

Vet Lawyer's response

for free spirit......and others here who read the post it regarded:

I dont remember what forum you posted the question in regarding Chris

Attig's blog :

"if the Veteran would have provided that evidence to prevail in his or claim but for a failure in the VA’s Duty to Assist, then it is possible that an “accrued benefits” claim can be reopened for submission of additional evidence."

This is part of Chris' email response to me to the Duty to Assist part:

“The DTA approach is just one of many techniques to try to reopen a previously denied and unappealed AB claim, but it needs to be coupled with NME that would likely have been provided if requested in a VCAA Notice. It's a tough row to hoe, but I've used the approach.

This almost sounds like he is talking about reopening a previously denied AB claim in which the widow did not provide evidence for her AB claim because it was not requested in the VCAA notice. That is a bit different than ""if the Veteran would have provided that evidence to prevail in his or claim but for a failure in the VA’s Duty to Assist."

And while I am not 100% sure, it may not be a viable approach in a pre-VCAA claim. In those situations, however, a due process violation MIGHT yield the same result; reopening.

I just wanted to make sure we all are on the same page.here. DTA has no impact at all, in my opinion on any current claims.That is what the VCAA is for.

I think duty to assist still comes into play in existing open claims, because there are plenty of court cases where the vets are still arguing the VA failed in their duty to assist and the CVA is remanding them. This usually seems to involve obtaining documents and ordering exams. The question would be whether the DTA can be used in a claim that has been considered closed. Apparently, it cannot. I know DTA could not be raised in a CUE claim, but I wasn't sure otherwise, especially after reading Mr. Attig's statement about if the Veteran would have provided evidence to prevail in his claim but for ta failure in the VA's Duty to Assist..." THAT sure got my attention!

So basically, since they send a letter telling people "send everything you can to prove your case" they are now relieved of the duty to assist otherwise?? Or is it just that the failure has to be raised on appeal while the claim is still open.

There are certain duties that the VCAA notice can't cover. For instance, the duty to liberally read your claim (which I guess is covered by the pending unadjudicated claims) or the duty to provide a medical exam or seek a medical opinion.

In my husband's case - he initially filed his claim for cancer in 2001 and specifically said his doctor told him his cancer started in service. And he sent in the paper the doctor had written that noted the doubling times. He ALSO claimed that his cancer was related to his asbestos exposure. The VA initially framed the claim as Lung Cancer TO INCLUDE as due to asbestos exposure. But then they limited the scope of the medical opinion to only asking about the etiology of the cancer, without addressing the onset - which was the major premise of his claim. The denial reframed the claim to be Lung Cancer AS DUE TO asbestos exposure. They dropped the "to include." My husband specifically disagreed and pointed out that they were ignoring the major premise of his claim, that it started in service. (This was all pre-Hadit). They just went right on denying the claim again - and pretty well just restated what they said the first time.

My husband received the SSOC but he didn't appeal. He honestly thought he had already appealed. This was right around the time he was operated on again and they found out his cancer was inoperable. But not too long after he received the SSOC, he received another letter that told him that his appeal was sent to the BVA. So he thought that meant he had appealed all that he needed to. We found out much later that the appeal that was sent to the BVA was NOT his cancer claim - it was an Old orphan dental claim. So meanwhile he sits back and readies himself for the long wait until the Board hears his decision. In 2006 - He called to see when his case might be heard - and the Board told him they didn't have his claim yet. He called the RO and they said it was not uncommon for them to keep the files even after they send the letter that the claim has been sent to the Board. So he asked about submitting more evidence, and they said to send it to them and they would forward it to the Board. He even sent a letter asking the Board to give him additional time to submit evidence before deciding on his claim. It wasn't until he had contacted a Senator and asked to see if his claim could be expedited when he submitted the evidence, due to terminal illness that he found out that his claim had been considered abandoned. Apparently they don't have to send you a notice when they close a claim as abandoned. That way, they can keep you sitting around waiting for your hearing for a couple years. Anyway, my husband sent a letter asking if the claim was abandoned, and stating he wanted to appeal whatever decision was made to close his claim, but they never responded to that.

Anyway -- he sent a HUGE amount of treatise evidence in support of his claim - but instead of notifying him that the claim was reopened, they sent him a letter telling him that if he wanted to reopen his claim, he had to send new and material evidence, and the evidence had to relate to the reasons the claim was previously denied. My husband once again objected to them limiting the claim to that basis, because they had never developed the claim in respect to the in-service onset to begin with. He ask that they adjudicate that part of the claim. And he told them he had already submitted a lot of evidence, but most of it had to do with the in-service onset (which was NOT the reason the claim was denied). So he objected that the kept limiting his claim to AS DUE TO asbestos exposure, and saying he had to submit evidence on that issue to reopen the claim. He didn't even want to submit more evidence about asbestos exposure until they FINALLY acknowledged the in-service ONSET portion of the claim. He said if he sent more evidence about asbestos exposure, they would just keep pretending like that was the only thing it was about. (He didn't put that in the letter, but he told me).

Anyway --- I think liberally reading a veteran's claim is part of the duty to assist -- and how liberally do you have to read to catch the part where the veteran kept saying "You are NOT addressing the issue of whether my cancer STARTED in service!!!"

But I guess since the VA pretended to get an opinion on that issue after my husband died, and the examiner skirted the topic and discussed whether the symptoms of his viral infections in service were related to his cancer, the VA could say it didn't matter whether they sought a medical opinion during his lifetime because it wouldn't have changed the outcome. And everyone can pretend the VA did their job and assisted him in developing his claim.

I don't know. I wasn't leaning toward a failure of duty to assist argument -- but when I read that on Mr. Attig's site - I started to wonder.

I was wondering mostly in respect to the other decisions, where the discharge physical was apparently not in the file, yet no one tried to obtain it, or notified him that it wasn't in the file. The SMRs clearly state a discharge physical was done - so they should have known there a missing medical record. And I honestly believe it was not in his file on the other decisions because they NEVER mentioned what was or was not shown on the discharge physical. They just say "Your SMRs." But then, proving that is another matter. But if they know there are missing service records, they have a duty to try to locate them, to inform the veteran of what other evidence they can submit to try to prove what the discharge physical would have shown - and a heightened duty to fully discuss in the reasons and basis all the evidence the veteran had that supported his claim. They never did any of this.

In fact with MY claim - I KNOW the discharge physical was missing because I drove to Chicago to look at his file and try to get a copy, I IRISed them when I got home telling them I specifically drove to Chicago to get a copy and neither the person who assisted me or I could find it, and I asked them to look for it and send me a copy. And though they did notify me by IRIS that they did not find it in the file - they did NOT send me a VCAA notice telling me of alternative forms of evidence I could submit, they did NOT mention in the SOC that his discharge physical was missing. They did NOT discuss any evidence that was submitted that was in support of the claim. They did NOT fulfill their heightened duty to assist.

After my first denial, I once again started requesting that they find his discharge physical. I notified them that it wasn't in his C-file when I obtained a copy, but that other veteran's records were in my husband's file, and I requested they look in the other veteran's files to see if my husband's discharge physical was in them. They told me they sent me everything they had. And once again, they did not send me a notice of alternative evidence I could submit, they did not mention that his discharge physical was missing from the record, they did not fully discuss the evidence in the record that supported the claim (as required in their heightened duty to assist), etc. in the SSOC.

So I really don't think the VA should get by with saying that they did everything possible to assist you because they sent a VCAA notice.

Edited October 5, 2013 by free_spirit_etc

[Pete53]

Great thread thank you ladies