Not Sure - Would Really Like a Consensus

[harry59]

Fellow Veterans,

A couple of days ago I found out that I was awarded 100% P&T. I was at 80%, but my mental health claim (that was finally decided on) pushed me over the line. I do not have my Decision Letter yet so I do not know any specifics. Now that I'm P&T, I'm really on the fence as to whether or not I should fight for my denied secondary claims of Hypertension and Obstructive Sleep Apnea (OSA). I'm not sure for a couple of reasons:

1. I'm not sure if, at my age (62), I will ever be reevaluated for mental health, which could possibly lead to a rating reduction in a future C&P exam. Is there an age limit where the VA will not reevaluate mental health claims? I know the M-21, Part IV, states that "with only rare exceptions, veterans over the age of 55 will not be recalled for reexamination." but I'm not sure if that pertains to mental health claims.

2. As you know, DIC can be awarded to a spouse if the veteran had been P&T for at least 10 years, or if the veteran dies from a service-connected illness or injury. DIC for my spouse is the primary reason I would fight for my denied secondaries as it is likely that hypertension and/or OSA could likely be a contributing factor in death. I know the VA is looking at changing the rating schedule for OSA, which will not benefit veterans.

So, should I continue my fight???

 

Thank you to all repliers!

[Tbird]

@Carl Baconthat is interesting, can you give us a link to the video.

[Carl the Engineer]

PM sent,

Carl

[Vync]

1 hour ago, Carl Bacon said:

I just watched a "Veteran vs VA" hearing.

In the hearing, the VA argues that the M-21 is just a guide.  One of the Judges counters to the VA that the VA uses the M-21 as a guide when it conflicts with other regs and uses the M-21 as law when it can or wants.  

So, any arguements either way, i.e., which reg "trumps" which reg, would be determined at the Judge level, and then whatever Judge you get.  No way to predict and outcome.

However, it was ineresting watching the plantiff's matter of fact pleading and the VA's lawyer dancing.

Bottom line is the VA can do whatever it wants and follow whichever reg it can until it gets to the Judge(s), and then they decide.

My opinion only,

Carl

 

I looked into this a while back and received a variety of answers, but here is some information further below to take into consideration (not to be construed as legal facts as I do not know if these have been superseded or altered. My interest came after looking into the VA denying me the S-DVI premium waiver because I was still employed. My research found that after the Paperwork Reduction Act of 1995 was implemented, the VA moved insurance division's definition of "totally disabled" from a regulation into their insurance procedure manual. I believe that it was superseded by actual laws and regulations with greater weight, but the VA lawyer I spoke with said all procedures carry the same weight as a law/regulation. It's sitting at the BVA waiting to be docketed.

 

I found this PDF on the VA's web site which is titled "Two Perspectives on Legal Authority Within The Department of Veterans Affairs Adjudication" written by Jeffrey Parker.He was a Senior Counsel with the BVA. The publishing date was not listed, but the most recent references were from 2008, so it must have been written some time shortly afterwards.

https://www.bva.va.gov/BVA/docs/VLR_VOL1/vlr1parker.pdf
 

Quote

 

Such an accumulated body of administrative authority that is
available to VA adjudicators may de facto function as quasi-legal authority
to VA adjudicators, whether or not the sources purport to be legally
authoritative or even disclaim any legal authority. Although manuals
were meant only to provide procedures for applying laws and regulations,
and were not meant to become substantive rules, the procedural versus
substantive rule distinction is not always clear or maintained.

25 See Fugere v. Derwinski, 1 Vet. App. 103, 106–07 (1990); DVA Op. Gen. Counsel Prec. 7-92
(1992) (explaining that when a manual or circular or similar administrative document creates a
substantive, as opposed to a procedural right, VA will be bound to its terms).

 

The online legal dictionary defines "substantive" as "relating to the essential legal principles administered by the courts, as opposed to practice and procedure". It sounds like there is a difference there...

Regarding departmental procedures, the VA is supposed to give notice and opportunity for public comment before they can update their procedure manuals like M21-1 as required per the Administrative Procedures Act. They got smacked in Fugere v. Derwinski (1990) by changing M21-1 on a whim and trying to use the changes to justify reduction of Fugere's rating percentage.

 

And then there is Patton v. West (1999) https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000068683/Patton-v.-West,-Mar-30,-1999,-12-Vet.App.-272-(1999)

Quote

The Court held that VA is required to follow the special evidentiary procedures for posttraumatic stress disorder (PTSD) claims based on personal assault that were established in the Manual M21-1 provisions.  VA has undertaken a special obligation to assist a claimant, who have submitted a well-grounded claim, in producing corroborating evidence of an in-service stressor in personal assault cases.  VA has provided for special evidentiary procedures, including interpretation of behavior changes by a clinician and interpretation in relation to a medical diagnosis, for personal assault PTSD cases.  

It still sounds like statutes (laws) and regulations take precedent over departmental procedures. But if departmental procedures create a substantive benefit for the vet, the VA is bound to grant it. The courts can also rule on specific factors and give them the weight of law like in Patton. 

[Tbird]

Here is the video mentioned in @Carl Baconpost

Stover  v. McDonough 20-5580 USCAVC

 

[Dustoff1970]

That is an excellent post Vync about the legal standing of of the VA Manual 21-1 claims procedure manual.  Many years ago I read some of those same federal, CAVC court cases that generally speaking the 21-1 manual does not have the same force and effect as actual 38 U.S.C. Code or 38 CFR regulations UNLESS it is determined by a judge or judges on appeal that said manual guidelines were substantive and amounted to a regulation.

This of course give VA lawyers, Court and BVA judges a lot of leeway in how to rule on your appeal.

In my claims and appeals I have cited M21-1 guidelines but only in conjunction with actual 38 CFR regulations and/or 38 U.S.C law.  Does not hurt to do it this way but do not rely only on the M21-1 procedures as argument evidence in your claim and appeals.  This was the advice I received from the "Veterans Advocate publications", Lexus Nexus reference manual, and other creditable resources.

My comment is not legal advice as I am not a lawyer, paralegal or VSO.

Edited April 7, 2022 by Dustoff 11

[Dustoff1970]

Thanks for that video T Bird In 2003 during my the CAVC court appeal the court did not allow video recordings of their arguments and decisions for public consumption that I am aware of. 

Judge Greenberg was very sympathetic to my pro se pleadings and allowed me to enter into the ROA record on appeal a lot of favorable evidence and arguments that was opposed by the hateful VA lawyers.  Another Judge made the actual ruling on my appeal.

Edited April 8, 2022 by Dustoff 11