"Frost"ing on the Cake

[broncovet]

Who doesnt like a little "Frost"ing?   In this precedential case, the issue came up if his Secondary conditions can come before the primary conditions?   Well, it can!!!  That is the Frosting!!

Quote

.Entitlement to Secondary Service Connection on a Causation Basis Has a Single Temporal Requirement

This Court long ago established that a disability may be found service connected on a secondary basis if there is

evidence demonstrating that the disability is (1)caused by a service- connected disease or injury or (2)aggravated

by a service-connected disease or injury. See Allen v.Brown ,7 Vet.App.439,448 (1995)(en

banc);38 C.F.R.§3.310(a)(2017)

.Because Mr.Frost does not argue that his GSW residuals were aggravated by his service-connected PTSD,the Court's

analysis will focus on the former method of attaining secondary service connection,the causation basis.

Secondary service connection for VA benefit purposes is not addressed in any statute.

Instead,the causation method of attaining secondary service connection is addressed in §3.310(a),

which provides in relevant part that a disability "proximately due to or the result of a service- connected disease or injury shall be service connected."38 C.F.R.§3.310(a).

Current precedent caselaw speaks to several aspects of the relationship between primary and secondary disabilities

under §3.310(a). See Ellington v.Peake, 541 F.3d 1364 (Fed.Cir.2008)(effective dates); Roper v.Nicholson,

20 Vet.App.173,177-78 (2006)(interpreting the § 3.310(a)proviso that when secondary service connection is established,"the secondary condition shall be considered a part of the original condition"); Allen,

7 Vet.App.at 444-50 (analyzing whether § 3.310(a)contemplates aggravation of a non-service-connected condition by a service-connected condition).

 

However,we have no explicit precedent caselaw concerning the temporal issue that the Secretary raised in his

brief. Normally when courts are faced with interpreting regulatory language,examination of the regulation's text is the starting point. See Good Samaritan Hosp.v. Shalala ,508 U.S.402,409

(1993)("The starting point in interpreting a statute [or regulation] is its language."); Petitti v. McDonald

,27 Vet.App.415,422 (2015) ("Regulatory interpretation begins with the language of the regulation,the plain meaning of which is derived from its text and its structure.").If the plain meaning of the regulation is clear from its language,that meaning controls and that is the end of the matter. Tropf v.Nicholson ,20 Vet.App.317, 320 (2006).However,if

the language is ambiguous,courts should defer to the agency's interpretation of its regulation unless that

interpretation is inconsistent with the language of the regulation or plainly erroneous or does not

represent the agency's fair and considered view on the matter. Auer v.Robbins ,519 U.S.452,461- 62 (1997);

Bowles v.Seminole Rock &Sand

 

Petitti

,27 Vet.App.at 423

In this case,the Secretary first argued a temporal component to § 3.310(a),that a veteran would be precluded as a

matter of law from entitlement to secondary service connection on a causation basis where the

purported primary condition was not service connected, or even diagnosed,at the time that the secondary

condition was incurred.However,the plain language of §3.310(a)— that a disability "proximately due to

or the result of a service-connected disease or injury shall be service connected"— does not establish such a temporal

requirement. See Petitti 27 Vet.App.at 422.

Nothing in the text of the regulation specifies or indicates that the primary condition must be service connected,

or even diagnosed,at the time the secondary condition is incurred.

''''''''''''''''''''

......this point,the Court would have reservations concerning the Secretary's initial interpretation.A

temporal requirement such as that suggested by the Secretary would make little sense given the current protracted nature of veterans benefits claims adjudication.The time from date of filing of a claim for service connection

to date of resolution of that claim often exceeds several years and may exceed a decade. See

 

available at

https://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2016AR.pdf (average length of time

between filing a VA Form 9 appeal and the Board's disposition was 1,785 days).That a veteran

may file for service connection for a primary condition and not receive a final determination of

entitlement until much later renders the Court unable to countenance an interpretation of §3.310(a)

that would require the primary disability to achieve service-connected status before the secondary

disability is incurred or diagnosed. In addition,the Court observes that a veteran has

no obligation to file a compensation claim as soon as he or she becomes aware of disability.

See Browder v.Derwinski,

1 Vet.App.204,208

(1991)(the Secretary may not raise the equitable defense of lack of diligence in pursuing a claim,

commonly called laches,against veterans in benefits cases). And,in fact,a veteran may not

become aware of disability immediately;instead, for a variety of reasons,awareness may follow

some time after initial symptoms arise. See,e.g.,

 

For the rest of the cake, Frosting and all, go here:

http://search.uscourts.cavc.gov/isysquery/26b9afbc-7ee8-47c9-a564-505b08ba6e61/1/details/

[NissanDriver]

Wow!!!

[GeekySquid]

On 9/14/2018 at 1:01 PM, broncovet said:

Who doesnt like a little "Frost"ing?

Bronco, as a heads up the link to the case is not working. I have attached the actually pdf to his post

For me the most interesting sentence in the file is

"The Court holds that there is no such temporal requirement inherent in § 3.310(a), even when the veteran claims that the primary condition caused the secondary condition. Therefore, for a veteran to be service connected on a secondary basis under a causation theory, the primary disability need not be service connected, or even diagnosed, at the time the secondary condition is incurred. "

the practical application of this ruling could be game changing for many veterans and might change the complexion of many initial claims if the Veterans and VSO's learn about the ruling.

great find.

 

 

cava case about secondary conditions FrostJL_15-3102.pdf

[broncovet]

Yes, Geeky squid.  The paragraph you quoted is HUGELY Significant to some Vets.  (This can be a deal maker).  

  I dont know why the link did not work, but thank you for reposting the Frost case link, which does a great job explaining why/how we can get service connected for a secondary condition BEFORE we get sc for the primary in some cases.  That's the "Frosting" on the cake.  

Edited September 22, 2018 by broncovet

[GeekySquid]

17 minutes ago, broncovet said:

I dont know why the link did not work

Bronco,

I noticed this with another link you posted in another thread. The URL does not contain the search parameters so when it hits the search box, the box does not know what to look for.

maybe a direct link to the actual PDF would work out better? or listing the case name and number? either way I found Frost was by reading the section you posted which includes that phrase " Secondary Service Connection on a Causation Basis Has a Single Temporal Requirement " and searching for that in the decisions. It can be tedious to find if you don't have explicit unique phrases to search for.