Substitution Effective Date Doesn't Violate Equal Protection

In Copeland v. Shinseki, docket 11-2408 (Vet. App. Nov. 14, 2012), the CAVC held that Congress’s assignment of an effective date for 38 U.S.C. § 5121A (the statute that allows a deceased veteran’s surviving spouse to be substituted for the veteran in a pending claim or appeal) did not violate the equal protection clause of the Fifth Amendment of the U.S. Constitution. The Court held that the veteran’s surviving spouse did not demonstrate that the assignment of the effective date was “patently arbitrary and irrational,” which would be required to find the statute constitutionally defective under rational basis review. The Court acknowledged that the effective date resulted in disparate treatment of survivors of those who died before and after the effective date, but determined that “the differing treatment is caused by an effective date that has a rational relationship to a legitimate governmental purpose for enacting legislation,” and thus did not violate the Constitution.

In a dissent, Judge Hagel asserted that the Court lacks the power to declare any statute unconstitutional.

VA Fiduciaries & Accrued Benefits

In Youngman v. Shinseki, docket no. 2011-7139 (Fed. Cir. Nov. 9, 2012), the U.S. Court of Appeals for the Federal Circuit held that a veteran’s fiduciary does not have the authority to receive accrued benefits that were awarded but unpaid at the time of the veteran’s death. The only beneficiaries who can receive accrued benefits are designated family members (surviving spouse, children, dependent parents) as provided in 38 U.S.C. § 5121(a). The only other payments allowed by that statute are for reimbursement of expenses for the veteran’s last illness and burial.

In Youngman, the veteran was awarded 100% disability in May 2005, effective March 1986. This resulted in a back award of approximately $350,000. At the time of the award, the veteran had a VA-appointed fiduciary. Proceedings had commenced in state court to appoint this fiduciary as the veteran’s “curator” under Kansas law. The VA regional office acknowledged that the funds could be released to the fiduciary, but later informed the fiduciary that they would not release funds until the state-court appointment was completed. The veteran died before the state proceedings were completed, and the award remain unpaid.

VA refused to pay the award to the fiduciary because neither she nor the veteran’s heirs (his cousins) were eligible accrued beneficiaries under VA law. 38 U.S.C. § 5121(a). The Federal Circuit held that § 5121(a) applied to the distribution of accrued benefits in all cases, and that there was no exception for fiduciaries.

Increased Disability Ratings & Effect of Medication

In Jones v. Shinseki, docket no. 11-2704 (Vet. App. Oct. 26, 2012), the CAVC held that VA cannot deny a higher disability rating based on “relief provided by medication when those effects are not specifically contemplated by the rating criteria.” In this case, the Board denied a 30% disability rating for the claimant’s irritable bowel syndrome because his symptoms were relieved by medication – even though the effect of medication is not among the criteria for consideration in the relevant diagnostic code. The Court found that the Board committed legal error by doing so, expanding on its prior holdings that VA cannot consider “factors which are wholly outside the rating criteria provided by the regulations.” Jones at *7 (citing Massey v. Brown, 7 Vet.App. 204, 208 (1994)); see also Otero-Castro v. Principi, 16 Vet.App. 375, 382 (2002).

Applying the Presumption of Soundness

In Gilbert v. Shinseki, docket no. 11-2355 (Vet. App. Oct. 24, 2012), the CAVC clarified the law on when the presumption of soundness applies. The Court held that the presumption of soundness applies only when a condition that is not noted upon entry into service manifests in service, and there is a question as to whether the condition preexisted service. In order to be entitled to the presumption of soundness, therefore, the veteran must show that the condition (1) was not noted upon entry into service and (2) manifested (was incurred) in service.

In order to rebut the presumption of soundness, the Secretary must “prove by clear and unmistakable evidence” that the condition “both preexisted service and was not aggravated by service.” If the Secretary rebuts the presumption, then the veteran has not established that the condition manifested in service – and service connection is not warranted. If the Secretary fails to rebut the presumption of soundness, the veteran is not entitled to the presumption of aggravation. Instead, the condition is deemed incurred in service. Finally, even if the presumption of soundness applies – and is unrebutted by the Secretary – the veteran must still prove that the current disability is related to that in-service condition (the nexus element).

Board Hearing Officer: Must Explain Issues, Suggest Evidence

In Procopio v. Shinseki, docket no. 11-1253 (Oct. 16, 2012, Vet.App.), the U.S. Court of Appeals for Veterans Claims (CAVC) held that a Board member conducting a hearing has a duty to explain the issues and suggest the submission of evidence relevant to those issues, just as a hearing officer would be required to do at a regional office hearing.

The veteran in this case asserted that his prostate cancer and diabetes were related to Agent Orange exposure, even though the ship on which he was stationed was not on VA’s list of ships whose crew members are presumed to have been exposed to Agent Orange. To support his claim, he submitted medical treatise evidence and a statement from his private physician. The regional office denied the claim because there was no evidence of direct exposure to Agent Orange. The veteran testified at a video conference before a member of the Board of Veterans’ Appeals, who affirmed the RO’s decision and denied the claim.

The Court found that the Board failed to ensure that the hearing officer suggested evidence to submit to substantiate the veteran’s claim. The Court noted that, at the Board hearing, the veteran had requested that the record be held open an additional 60 days to allow him to submit another medical opinion. The Court stated that the Board member should have explained to the veteran that a nexus opinion alone would not substantiate the claim – because that would still not establish that he was directly exposed to Agent Orange in service. The Court held that the Board member did not comply with his duty to inform the veteran of “the elements of his claim that still needed to be proven and to suggest the submission of evidence . . . that he might have overlooked.” Procopio at *11.

Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012

President Obama signed the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 into law in August, providing benefits to veterans and restricting protests of service members’ funerals.

The new law provides extended healthcare benefits to Camp Lejeune veterans and their families who have been diagnosed with a disease related to the base’s water contamination between 1957 and 1987.

The new law also prohibits protests at military funerals in the two hours before and after the service, and states that any protest must be held at least 300 feet from the military funeral. This law is in response to Snyder v. Phelps, 131 S. Ct. 1207 (2011), the U.S. Supreme Court case that upheld the Westboro Baptist Church’s right to protest at military funerals under the Free Speech Clause of the First Amendment.

In addition, the law has provisions regarding waiving copayments for telehealth care, expansion of travel benefits for veterans receiving care from Vet Centers, rehabilitation for veterans with TBI, expanded eligibility for specially adapted housing assistance, improved assistance to disabled veterans living in a family member’s home, programs for homeless veterans, benefits claims processing, the duty to assist claimants in obtaining private medical records, and more.


(Posted to hoeferlaw.com September 2012)

VA no longer covers costs for PTSD service dogs

VA will no longer cover the cost of service dogs for veterans with PTSD. VA issued a final rule that limits its payment of service-dog benefits to veterans with vision, hearing, or mobility impairments. 77 Fed. Reg. 54368 (Sept. 5, 2012). The rationale provided in the rule is that “VA has not yet been able to determine that these dogs provide medical benefit to veterans with mental illness.” The rule expressly stated that it “does not deny access of any service dog to VA health care facilities.” However, there is a provision in the Honoring America’s Veterans Act of 2012 (above) that states that VA “may not prohibit the use of a covered service dog in any facility or on any property,” and defines “covered service dog” as “a service dog that has been trained by an entity that is accredited by an appropriate accrediting body that evaluates and accredits organizations which train guide or service dogs.”


(Posted to hoeferlaw.com September 2012)

CAVC holds that 38 C.F.R. § 3.156(c)(2) cannot be applied retroactively

In Cline v. Shinseki, docket no. 10-3543 (Vet. App. Aug. 16, 2012), the U.S. Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.156(c)(2) is a substantive rule that could not be applied retroactively. This rule provides an exception to the rule that requires VA to reopen a previously denied claim when it receives new official service records that were not in the file when VA first decided the claim. 38 C.F.R. § 3.156(c)(1). This rule allows for an effective date as of the date of the original claim if the newly discovered service records ultimately form the basis of an award of benefits. The exception, which became effective in October 2006, states that the rule does not apply to records that VA could not have obtained at the time of its initial decision because (1) they did not exist or (2) the veteran did not provide enough information for VA to identify and obtain the service records.

In Cline, the veteran wanted an earlier effective date based on the submission of new service records. He submitted his request to reopen, provided information to identify the service records, and was awarded benefits prior to October 2006. VA determined that he could not be awarded an earlier effective because he had not previously provided sufficient information to identify the service records. The Court found that the retroactive application of § 3.156 was impermissible and remanded to the Board of Veterans’ Appeals to readjudicate the claim, applying the prior version of the regulation.


(Posted to hoeferlaw.com September 2012)

Federal Circuit holds that appellants can only bring one CUE motion for any one disability claim

In Hillyard v. Shinseki, docket no. 2011-7157 (Aug. 17, 2012 Fed. Cir.), the U.S. Court of Appeals for the Federal Circuit affirmed a Veterans Court decision that determined that appellants can bring only one motion for revision of any one disability claim based on clear and unmistakable error (CUE) to the Board of Veterans’ Appeals. Appellants must raise every possible CUE theory in their CUE motion to the Board, or risk losing the ability to raise that argument. This case does not apply to CUE motions raised at the regional office level.


(Posted to hoeferlaw.com September 2012)

Different standards for establishing service connection for PTSD

The standards for establishing entitlement to service connection for PTSD based on “fear of hostile military activity” do not apply to PTSD based on in-service assault by a fellow service-member. Acevedo v. Shinseki, docket no. 10-3402 (July 9, 2012).

A veteran who claims entitlement to service connection for PTSD based on “fear of hostile military or terrorist activity,” can establish the occurrence of the in-service stressor with his/her lay statements alone.  38 C.F.R. § 3.304(f)(3).  A veteran who claims entitlement to service connection for PTSD based on in-service personal assault, however, must provide other evidence to corroborate his/her lay statements regarding the occurrence of the in-service assault.  38 C.F.R. § 3.304(f)(5).

(posted to hoeferlaw.com July 2012)

Remarried widow/widower’s eligibility for Dependency and Indemnity Compensation

The U.S. Court of Appeals for the Federal Circuit issued an opinion regarding a remarried widow’s eligibility for Dependency and Indemnity Compensation (DIC) benefits.  Frederick v. Shinseki, docket no. 2011-7146 (Fed. Cir. July 3, 2012).  A veteran’s surviving spouse can be eligible for DIC benefits upon the veteran’s death.  Before 2004, a surviving spouse would lose DIC benefits if he/she remarried.  On 
December 16, 2003, Congress enacted a law that enabled a surviving spouse who remarries after age 57 to remain eligible for DIC benefits.  This law went into effect January 1, 2004. 

If a surviving spouse (1) had been receiving DIC benefits prior to December 2004; (2) had remarried after age 57; and if (3) VA had stopped the DIC benefits after the remarriage, the surviving spouse would be entitled to reinstatement of those benefits – but only if he/she filed an application for such benefits “not later than the end of the one-year period beginning on the date of enactment,” i.e., December 16, 2004.  In this case, the court denied DIC benefits to a surviving spouse who had remarried after age 57 because she failed to file an application for reinstatement of those benefits prior to December 2004.

(posted to hoeferlaw.com July 2012)

Presumption of soundness

A veteran is presumed to have entered service in sound condition unless a preexisting condition is noted upon entry into service. 38 U.S.C. § 1111. Once this presumption of soundness applies, the burden falls on VA to rebut the presumption with “clear and unmistakable evidence” that the condition both preexisted service and was not aggravated by service.  Even if there is evidence that the condition preexisted service, VA must still prove, with “clear and unmistakable evidence,” that the condition was not aggravated in service.

In this case, the Veterans Court held that a Medical Examination Board (MEB) report “containing only an unexplained ‘X’ in a box on a form” cannot constitute the “clear and unmistakable evidence” required to rebut the presumption of aggravation prong of the presumption of soundness. Horn v. Shinseki, docket no. 10-0853 (Vet. App. June 21, 2012). The Court stated that VA adjudicators “may not deny claims involving the presumption of soundness based upon MEB reports containing no supporting analysis.” 

(posted to hoeferlaw.com July 2012)

Presumption afforded combat veterans

For combat veterans’ service-connection claims, VA is required to presume in-service incurrence of disease or injury – not just that the alleged in-service event or exposure occurred.  Reeves v. Shinseki, docket no. 2011-7085 (Fed. Cir. June 14, 2012).  In this case, the surviving spouse of a World War II combat veteran asserted that (1) the veteran suffered acoustic trauma in service and (2) this noise exposure resulted in hearing loss while in service.  The evidence he submitted included documentation that he worked as a heavy mortar crewman in service; statements from himself, his wife, his fellow service-members regarding in-service exposure and hearing loss; and a letter from his doctor stating that he diagnosed hearing loss in 1962 and attributed it to in-service noise exposure.  Although VA presumed that the veteran experienced in-service noise exposure based on his status as a combat veteran, VA denied service connection because the first medical documentation of hearing loss was “too remote” from his active service.

The Federal Circuit held that VA was required to apply the presumption of section 1154(b) to the questions of whether (1) the veteran experienced acoustic trauma in service and (2) he suffered permanent hearing loss while on active duty.  The court found that even though “the record contained evidence of the cause of [the veteran’s] disability . . . , he still had the right to invoke the section 1154(b) presumption in order to show that he incurred the disability itself while in service.” 

(posted to hoeferlaw.com July 2012)