Hearing Coming Up

[Dean]

I got a letter the other day and was told that I have a hering in about 3 weeks. I do not know what is on my docket at all. I have so many things filed, I do not even know whatthings that the hearing is about. I have went through this before. It sux how they do not tell you in the letter that the hearing is about. When I call the idiots in Atlanta they tell me that they do not know. The person acted like it was a problem to just answer the phone. I finally found out what was on there but I can't count on her to be correct since she was trying to get me off of the phone every time she got finished with a sentence. I was writing this as I was on the phone.

I am thinking that Depression will be on the docket along with other things that I have filed. I have been trying to get service connected for depression for a long time now. The only way that I think that I can get them to do this is to explain to them that the depression is secondary. I have tried to get every doctor to put that in my records. I have been denied for this even though I gave them the record years ago to look at that this doctor put this on. Now I have to find that 1 paper in about 5 boxes of my files. I am going to try to get a copy of that record from the V.A. but it was years ago and the doctor is gone now.

If anyone has any idea's that can help me please send me an e-mail. I am going to be up to my neck in paperwork for the next couple of weeks. Thanks in advance.

[Dean]

What do you get service connection for now and at what rating?

Back DDD of Lumbar Spine,with bilateral lower radiculopathy 40%, Bilateral Hernia,post operative (1997) Inquinal Nerve Entrapment 10%, Residuals ,Right wrist fracture with carpal tunnel syndrome 10%, Rhinitis and Sinusitis 10%

This adds up to 60% with their math. This is what I am getting from a June 2004 Decision.

I contribute all of my service connected disabilities to my depression. If I were not disabled for these reasons, I could work and function as a normal person does. These disabilities cause stress and depression, because I have to stay at home or in bed at home for most of my life. The pain alone is depressing. Taking pain pills each and every day and then taking stomach pills to stop the problems that the pills cause to my stomach. Not being able to do things with my children, ie - sports, going to events with them or going to school events that they are in due to not being able to sit down for long periods.

What should I take to the Psychologist appointment? I do not think that I should take the V.A. paperwork stating Personality Disorder. I want the doctor to get her own opinion.

Law Update & Practice

The Veterans Law Group (VLG) introduces the Law Update as a permanent section to its website. The Law Update is designed to cover some of the major changes in veterans’ disability law since 2003. For the most part, this section is intended for veterans service officers (VSOs), who represent disabled veterans or their survivors/dependents before the Regional Offices and the Board of Veterans’ Appeals. The Law Update offers a brief abstract of the new case, statute, regulation or General Counsel Opinion, with a practice note on each.

The Law Update does not cover all of the recent changes in veterans’ disability law. Indeed, it purposefully limits its discussion to those legal developments, which VLG believes are the most important to VSOs in representing their clients. Further, not all aspects of a new case or statute are discussed; rather, only those part(s) which are particularly relevant to the general representation of disabled veterans and their survivors/dependents.

VLG advises that representatives should not rely upon the Law Update as a complete guide for representing their clients, but should consider it as one source to keep current on some of the changes in veterans’ disability law.

A. FEDERAL CIRCUIT COURT OF APPEALS

1. Disabled American Veterans v. Sec. of Veterans Affairs, 327 F.3d 1339 (Fed.Cir. 2003) (The Federal Circuit held that 38 C.F.R. § 19.9(a)(2) was invalid. § 19.9(a)(2) permitted the BVA to obtain evidence and adjudicate an issue not previously considered by the regional office.).

Practice Note

: To comply with the

DAV

case, the Board has recently created a separate department called the Appellate Management Team. It performs many of the same functions of a regional office, setting up medical examinations and developing other types of evidence.

2. Paralyzed Veterans of America v. Sec. of Veterans Affairs, 345 F.3d 1334 (Fed.Cir. 2003) (The Federal Circuit decided that 38 C.F.R. § 3.159(:P(1) is invalid. § 3.159(B)(1) implemented the VA’s duty to notify claimants of necessary information and evidence pursuant to 38 U.S.C. § 5103. Under § 5103 and § 3.159(B)(1), the claimant is generally given one year from the date of the notice in which to submit evidence. However, § 3.159(B)(1) also permitted the VA to adjudicate the claim before the one-year period if the claimant had not responded to the notice within thirty days. In light of these conflicting time frames, the Federal Circuit held that , § 3.159(B)(1) was a valid implementation of the statute.)

Practice Note

: Many of the regional offices may not be aware of this holding. Be sure to keep an eye on any VA notices pursuant to § 5103 which restrict the veteran’s time frame to submit evidence one-year following the notice.

3. Szemraj v. Principi, 357 F.3d 1370 (Fed.Cir. 2004); Moody v. Principi, 360 F.3d 1306 (Fed.Cir. 2004) (In both cases, the Federal Circuit decided that the VA must give a liberal reading to all pro se pleadings submitted by veterans.)

Practice Note

:

Szemraj

and

Moody

are two decisions with great potential. For years now, the CAVC cases have undermined the concept that a veteran’s pleading should be sympathetically read, and that the VA should consider all potential claims raised by the record. We all know that veterans are not experts in drafting pleadings, nor should we expect them to be.

4. Barrett v. Principi, 363 F.3d 1316 (Fed.Cir. 2004) (The Federal Circuit held that mental incapacity could be a basis to toll the 120-day time period for filing a Notice of Appeal at the CAVC following an adverse BVA decision. The Court stated that the veteran must establish that his psychological disability made him incapable of rational thought or deliberate decision making, or rendered him unable to function in society.).

Practice Note

:

Barrett

is a very important case.

Barrett

stands for the broad proposition that any time period for filing a written submission (e.g. one-year period for filing a Notice of Disagreement) can be tolled or extended based upon a sufficient showing of the veteran’s psychological disability.

B. COURT OF APPEALS FOR VETERANS CLAIMS

1. Brambley v. Principi, 17 Vet.App. 20, 23-25 (2003) (CAVC clarifies that 38 C.F.R. § 3.321(B)(1) obligates the VA to consider an extra-schedular rating as part of a claim for an increased-evaluation for service-connected disability. As with any disability claim, VA must ensure that an adjudication of a claim for an extra-schedular rating is based upon a fully developed medical record; specifically here, a complete picture of the veteran’s service-connected disabilities and their effect on his employment.).

Practice Note

: An extra-schedular theory for a higher disability rating is often overlooked. If the claims file shows that the veteran’s disability(ies) is preventing, or substantially interfering with, his or her ability to work, then the veteran’s representative should press for a higher rating based upon a theory of an extra-schedular disability rating. Remember that a theory of total disability rating due to a veteran’s unemployability based on an extra-schedular rating is available to a veteran, even though he or she might not meet the percentage disability requirements for a traditional TDIU claim.

See Bowling v. Principi

, 15 Vet.App. 1, 6 (2001); 38 C.F.R. § 4.16(B).

2. Davis v. Principi, 17 Vet.App. 54, 57 (2003) (CAVC vacated Board decision denying the claim for service-connected substance abuse. In that case, the veteran alleged that his substance abuse was caused by the VA’s in-service methadone treatment. The Court noted that, while primary substance abuse can never be service-related, a theory of secondary service-connection can be a valid basis for finding service-related substance abuse.).

Practice Note

:

Davis

illustrates an important principle of secondary service connection. Many disabilities, including physical and psychological disabilities, which do not appear to be service-related, may be service-connected on a secondary basis. For example, if a veteran has service-connected leg disability, which, over time, causes a back disability, the back disability can be found service-related on a secondary theory.

3. Moran v. Principi, 17 Vet.App. 149, 154 (2003) (CAVC vacates Board decision for its failure to consider the veteran’s allegations of combat as a basis for corroborating an alleged stressor for a PTSD claim.)

Practice Note

: PTSD claims, in general, require: 1) a current diagnosis of PTSD, 2) medical evidence of a nexus between the claimed stressor and the PTSD condition, and 3) credible supporting evidence that the alleged in-service stressor occurred. As to the third requirement, a determination of combat status gives rise to a nearly conclusive presumption that the in-service stressor occurred. Often combat status is determined by the veteran’s medals or decorations, but, as

Moran

points out, a veteran’s statements can also be a basis to find combat status.

4. Jeffcoat v. Principi, 17 Vet.App. 213, 219 (2003) (CAVC vacates Board decision in part because of the VA’s failure to comply with the previous Board remand instructions.).

Practice Note

: In

Stegall v. West

, 11 Vet.App. 268, 271 (1998), the CAVC set forth a very important proposition. The Court held that a veteran has an absolute right to compliance with the instructions of any previous remand from the Board or the Court. Thus, a veteran’s representative should carefully look through a veteran’s claims file to see if there are any previous BVA or Court remand orders. If so, look carefully at the remand instructions, (e.g., instructions to obtain another medical examination, to obtain military or private medical records or documents, etc…), and make sure the VA complies with these instructions.).

5. Pelegrini v. Principi, 18 Vet.App. 112 (2004) (CAVC elaborated on the new notice requirements under 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(B). These sections together require, among other things, that the VA notify the veteran: 1) what evidence is necessary to substantiate his claim, 2) who will be responsible for obtaining this evidence, and 3) to submit any evidence in his possession that pertains to the claim. In Pelegrini, the Court held that the VA was obligated to provide this notice prior to an initial adverse decision by the Regional Office’s adjudicating officer.).

Practice Note

:

Pelegrini

is an important case, as it takes the VCAA notice requirement one step further. Now, the VA must provide notice before the ALJ issues the first rating decision, denying the veteran’s claim.

C. GENERAL COUNSEL’S PUBLISHED OPINIONS (From time to time, the General Counsel’s Office of the Veterans Administration publishes opinions on the interpretation or application of statutes or regulations. These opinions are considered binding precedent with respect to all claims pending before the regional offices and the Board of Veterans’ Appeals.)

1. VAOPGCPREC 6-2003 (This opinion addresses whether a veteran’s tobacco-related disability or death may be service connected secondary to a service-connected mental disability, which caused the veteran to use tobacco. 38 U.S.C. § 1103(a) prohibits a finding of service connection of a disability or death resulting from the veteran’s use of tobacco during his service. The General Counsel opinion, however, clarifies that service connection is permissible if the veteran’s disability or death is the result of his post-service use of tobacco, which is caused by a service-connected psychological disability.)

Practice Note

: Representatives should keep this General Counsel opinion in mind when handling PTSD and other mental disability claims. Many emotional disorders and disabilities can lead to the veteran’s chronic tobacco use after service in much the same way that emotional disabilities can lead to veteran’s “self-medication” (drug or alcohol abuse) following service. Of course, there must be medical evidence in the record supporting this secondary theory of service-connected disability or death.)

2. VAOPCGPREC 3-2003 (This opinion discusses whether a claimant is required to show that the disease or injury increased in severity during service before the presumption of aggravation applies. 38 U.S.C. § 1111 provides that a veteran will be presumed in sound condition if his entrance examination does not note any relevant defects, diseases or conditions. The statute further provides that this presumption may be rebutted by clear and unmistakable evidence of both 1) that the condition existed prior to service, and 2) that it was not aggravated by service. However, 38 C.F.R. § 3.306(B) imposes an additional requirement on the claimant in order to receive the presumption in cases of aggravation. § 3.306(B) requires the claimant to show that the pre-existing condition increased in severity during service. The General Counsel opinion determines that this part of the regulation is invalid, as it is inconsistent with 38 U.S.C. § 1111.)

Practice Note

: VAOPCGPREC 3-2003 is a new General Counsel opinion, of which many of the regional offices may not be aware. Therefore, be on the look out for claims which have been denied on the basis that there was no evidence of

increased disability during service

. This showing is no longer required to obtain the favorable presumption.

D. STATUTES

1. Amendment to 38 U.S.C. § 1116(a)(F) (This amendment eliminates the requirement that respiratory cancer (cancers of the lung, bronchus, larynx, trachea) becomes manifest within 30 years of the veteran’s departure from Vietnam to qualify for the presumption of service connection based on exposure to herbicides such as Agent Orange. This amendment also broadens the presumption of exposure to herbicides to include all Vietnam veterans, not just those who have a presumptively service-connected disease).

Practice Note

: This amendment covers two different aspects of a toxic exposure claim. First, a veteran must establish that his exposure to the toxin must have occurred in service. Second, he must prove that his current disease or disability is related to the in-service toxic exposure. With respect to some claims, such as those outlined in listed in § 1116(a)(F), the VA will presume in-service exposure and/or service connection.

2. Amendment to 38 U.S.C. § 5121(a) (VA law makes clear that a veterans’ pending disability claim terminates upon the veteran’s death. However, a survivor of the veteran (such as a surviving spouse, child, or parent) may file a so-called “accrued benefits” claims. In this action, the survivor continues the veteran’s disability claim under the survivor’s name, typically arguing the same theories and relying upon the same evidence. Until recently, 38 U.S.C. § 5121(a) provided a two-year maximum cap on the amount of accrued benefits which could be recovered. The recent amendment to § 5121(a) removes this two-year limitation. Now, a survivor can receive the full measure of retroactive, unpaid accrued benefits, if he or she prevails in the survivor claim.

I found this and my back compensation payment date started in Jan. 1995 and an increase was given in 1996 and 1997 was when it went up to 40%. This is a new law and if I am reading it correctly it started in 2003. This should make mine be able to be increased to 60%.

The web site for this is: http://www.veteranslaw.com/Law%20Update.htm There are some interesting things on this page for a lot of people, including you.

Practice Note

: Be advised that the amendment was not made retroactive, and thus only applies to survivor claims in which the veteran died on or after December 16, 2003, the date of the enactment of the amendment.

E. REGULATIONS

1. Amendment to 38 C.F.R. § 4.71a (Diagnostic Codes 5235-5243) (These diagnostic codes set forth the criteria for rating spinal disabilities. Prior to the amendment, the applicable diagnostic codes, 5285-5295, were fairly general and unrestrictive. In particular, diagnostic code 5293 permitted disability ratings of up to 60%, without having to show specific medical findings of motion and functional loss or physical incapacity. The new diagnostic codes have raised the bar, requiring specific and measurable medical findings of motion loss and/or incapacitating episodes.)

Practice Note

:

The new diagnostic codes were not made retroactive, and therefore claims pending during their promulgation should not be governed by these more restrictive codes. Separately, the representative should always keep in mind the TDIU theory for back claims. More often than not, severe back disabilities prevent, or at least seriously impair, the veteran’s ability to work. If a veteran cannot work due to his back problems, then regardless of the veteran’s scheduler disability rating, the representative should press for a total disability rating based upon unemployability.).

[Objee]

Just that you seem to have a huge amount of info about your disabilities

and you're trying to tie all of it into depression.

I thought that diagramming it might make it clearer in a rater's mind so

s/he could follow your writeups. I got a bit lost in the haypile of data.

Ralph

[Dean]

Just that you seem to have a huge amount of info about your disabilities

and you're trying to tie all of it into depression.

I thought that diagramming it might make it clearer in a rater's mind so

s/he could follow your writeups. I got a bit lost in the haypile of data.

Ralph

Are you doing this for me?

[Dean]

Berta, check this site out and tell me what you think.............

http://www.veteranslaw.com/Law%20Update.htm

[Berta]

This are all good citations-

but the VA is supposed to know all this anyhow-

"What should I take to the Psychologist appointment? I do not think that I should take the V.A. paperwork stating Personality Disorder. I want the doctor to get her own opinion"

I would take it all Dean- she can use what she needs.BUT I would highlight right away and give this doc copies of the medical statements you said that you already have documented- that your depression is due to your service connected disabilities.

I dont understand why the diagnosis is even in question-since you have these medical statements- but apparently it is and this will be a current evaluation of your depression.

A good IMO needs to contain strong medical rationale for the diagnosis and has to state the nexus and support that too with medical rationale.

It also helps too when a doctor supports their opinion with part of a good medical treatise-

-they dont need to use the whole thing- just quote from it and give the proper citation for it's source.

This will help the TDIU claim-I assume this is still a pending issue-

I dont know how this will tie in to the hearing----for the remanded conditions-

PS -will you have a vet rep at the hearing? can your family be there?

For the hearing- I dont know what it is specifically for-but I assume it is for the remand-

Since your family will benefit considerably from any positive results- it would be great if they would get some manila folders and some labels and help you to separate and label anything that you will need.

I have dozens of manila files-one for each claim I have at the VA -

AO death claim, 2 CUEs, one that the AO claim decision render moot, and also a legal question claim under Bonny V Principi.

I also have manila folders for each claim with copies of the medical evidence - for the CUES it is the regs that support them and the final decisions I cued,

I have a separate correspondence folder for all the letters from the VARO and then I have put copies of the correspondence also into the specific claim folder.

The recent SF 95 matter with counsel is also a separate file-

One manila folder contains the rating decisions and all the SOCs and SSOC I have gotten. A big folder-

Another contains all the award letters I have received.

And one is for Rod's SMRs, his DD214s and his DD 215, his SRB from the Corps -stuff like that.

I use colored labels to state what each folder is for and I also write on the manila cover what the folder contains.

I also have a folder of VARO phone logs and who told me what and when from the 800#.

Your family will benefit considerably from your success on these claims and can help- and should be willing to try to get this all organized and then determine what you need to take to the hearing.

Organization also relieves a LOT of stress-

I know if my vet rep or the VARO should call me,

I can find the proper files in a heart beat and deal with them-

Has the VA defined exactly what this hearing is about?

This narrows what you need to focus on and bring with you.

Edited January 25, 2007 by Berta

[Dean]

Berta,

I am already working on everything that you said to do. I have been working on this for the past week. I plan to have my wife help me with the paper work sorting. I had a lot of this sorted out about 10 years ago....LOL....

That really is not funny, but I had to laugh at something. The pressure is getting to me. I am going to try to organize all of this stuff before the hearing. I only have about 4 feet of records to go through. I just do not really have a place to put everything.

I went to my initial appointment with the psychologist. I will be taking my MMPI test tomorrow. I decided to tell her about the Personality Disorder. I think that she understood the point that I have a lot of disabilities, and that the disabilities are causing a lot of depression. I am skeptical that she will do the right thing for me and not try to analyze the results. I guess that is just the way that I have become over the years with these doctors. It makes me paranoid when I talk to them. She did tell me that she has never dealt with the V.A. before. I told her that she should be glad that she has not had to.

I am supposed to be getting a phone call today aroud 2pm from the Department of Veteran Services. Hopefully they will be able to shed some light about what my hearing is about.

(((This will help the TDIU claim-I assume this is still a pending issue-

I dont know how this will tie in to the hearing----for the remanded conditions-)))

The judge stated in his report that if my claims are properly look at and rated, I could get the T.D.U.I. rating based on Schedular Rating if nothing else. That is why I am looking at everything so hard. I will let you know what is discussed in the phone call today.