Friday, May 17, 2013

Beraud v. Shinseki

Beraud v. Shinseki, docket no. 11-726 (Vet. App. May 17, 2013)
A pending claim based on the submission of new and material evidence can be terminated by a subsequent rating decision on the same issue – even if that later decision did not consider the new and material evidence. In this case, the veteran submitted a claim for benefits in March 1985. In November 1985, the RO sent a letter to the veteran requesting the location of additional service records, and giving the veteran 60 days to submit any new evidence. Seventeen days later, the RO denied the veteran’s claim. Shortly after the RO sent that decision, the veteran responded to the RO’s request for information. The veteran did not file a Notice of Disagreement. Over the years, the veteran submitted additional requests to reopen his claim, and the RO continued to deny the claim. The RO finally awarded benefits in December 2005.

In an effort to obtain an earlier effective date for the award of benefits, the veteran argued that his 1985 letter in response to the RO’s request for information constituted new and material evidence that gave rise to a pending and unadjudicated claim. He also argued that there was clear and unmistakable error in the 1985 decision because the RO failed to obtain the identified service records. The Court held that if a claim is pending based on the submission of new and material evidence under 38 C.F.R. § 3.156(b), a subsequent final decision on the same issue terminates that pending claim. A dissenting judge argued that the regulation requires VA to consider new evidence submitted during the relevant period and determine whether it is new and material – and that the decision only becomes final when VA has considered the new evidence. Because the RO never obtained the service records identified in the veteran’s letter, the dissenting judge argued that the Court should remand the case to allow the Board to address the applicability of § 3.156(b). This case is being appealed to the Federal Circuit.

Friday, May 3, 2013

Kelley v. Shinseki

Kelley v. Shinseki, 26 Vet.App. 183 (2013)
In November 2012, VA rescinded its policy that honored exclusive-contact requests from attorney-represented veterans. Prior to this, when a veteran was represented by an attorney, VA would honor requests from the attorney that VA contact the attorney exclusively regarding the veteran’s claim. In this case, the veteran contacted the regional office by email to obtain the status of his claim, and a VA employee called the veteran back and provided information. The veteran’s attorney reminded VA about the exclusive-contact request, and was told that VA was no longer honoring these requests. The attorney petitioned the Court of Appeals for Veterans Claims (CAVC), arguing that VA’s contact with the attorney-represented veteran prohibited the veteran from benefiting from the advice of counsel and interfered with the attorney-client relationship. The Court denied the petition, finding that the attorney did not show that the veteran’s contact with the RO interfered with the attorney-client relationship. The Court expressed its concern with VA’s new policy, but found that it did not, in this case, prevent the veteran from obtaining advice from his attorney or otherwise interfere with the attorney-client relationship. 

Kyhn v. Shinseki

Kyhn v. Shinseki, 26 Vet.App. 371 (Vet.App. Oct. 22, 2013)
This decision is the result of a Federal Circuit opinion that found that the CAVC acted outside its jurisdiction when it relied on extra-record evidence to determine that VA had properly notified the veteran of a scheduled examination, based on the presumption of administrative regularity. See Kyhn v. Shinseki, 716 F.3d 572 (2013). On remand, the CAVC returned the case to the Board to explain its determination that Mr. Kyhn was properly notified of the scheduled examination. The CAVC noted that the Board did not discuss the documents it relied on in finding that Mr. Kyhn was notified of the examination and did not discuss whether this finding was based on the presumption of regularity. The Court stated that if the Board bases its finding on the presumption of regularity, it “should explain in detail the regular and established procedure that VA follows” to schedule and notify claimants of examinations.

Parks v. Shinseki

Parks v. Shinseki, 716 F.3d 581 (2013)
The presumption that a VA examiner is qualified by training, education, or experience in a particular field can be overcome by showing a lack of those presumed qualifications. In this case, the veteran argued that the Board erred in relying on a medical opinion provided by an advanced nurse practitioner because it was not “competent medical evidence.” The CAVC rejected this argument as a matter of law because the veteran had not raised this argument at the Board or the regional office. The veteran appealed to the Federal Circuit.

The Federal Circuit framed the issue as whether the veteran “waived his right to overcome the presumption that the selection of a particular medical professional means that the person is qualified for the task.” *6. The Federal Circuit held that the first step to overcoming the presumption is to object to the examiner’s qualifications – and that this applies even to pro se veterans. *7. The next step would be to show that the examiner lacks the necessary education, training, or experience to provide the requested opinion. *8. The Court pointed out VA’s purpose in adopting the regulation regarding competent medical opinions was that “competency requires some nexus between qualification and opinion.” Id. Because the veteran never raised the issue of the ARNP’s competency below, the Federal Circuit affirmed the CAVC’s decision.

Solze v. Shinseki

Solze v. Shinseki, 26 Vet.App. 118 (2013)
Both parties to a case have a duty to notify the Court of any “development that could deprive the Court of jurisdiction or otherwise affect its decision.” This case involved a motion for reconsideration of the Court’s denial of a petition regarding a VA fiduciary matter. While the motion for reconsideration was pending for full-court review, the Board of Veterans’ Appeals issued a decision. The Court ordered the parties to explain why they did not inform the Court of the Board’s decision, and why the Court should not impose sanctions or start disciplinary proceedings against them. Following oral argument, the Court held that both parties are under a duty to inform the Court of significant developments in a case, particularly in petitions, where the Court is being asked to “interject its authority into a live controversy.”