Monday, September 30, 2013

AZ v. Shinseki

AZ v. Shinseki, docket no. 2012-7046 (Fed. Cir. Sept. 30, 2013)
In evaluating PTSD cases based on military sexual assault, the Federal Circuit held that “the absence of a service record documenting an unreported sexual assault is not pertinent evidence that the sexual assault did not occur.” The Court further held that VA and the Veterans Court “may not rely on a veteran’s failure to report an in-service sexual assault to military authorities as pertinent evidence that the sexual assault did not occur.”

The Court found that the lack of service records showing that an alleged assault occurred or was reported in service is NOT pertinent evidence that the assault did not happen because it is not reasonable to believe that these assaults are reported. The Court relied on statistics from the Department of Defense showing that the vast majority of these incidents are not reported to military authorities. The Court also relied on the common-law approach that gives weight to the absence of evidence only if the event was normally recorded. In-service sexual assaults are not usually reported – and therefore are normally not recorded – so it is not reasonable to construe the absence of such evidence (reporting/recording) as negative evidence against the claim. The Court in this case stated that “where an alleged sexual assault, like most in-service sexual assaults, is not reported, the absence of service records documenting the alleged assault is not pertinent evidence that the assault did not occur.” AZ v. Shinseki, at *28-29.

Thursday, September 26, 2013

Schertz v. Shinseki

Schertz v. Shinseki, docket no. 11-2694 (Vet. App. Sept. 26, 2013)
Under 38 U.S.C. § 1151, an “event not reasonably foreseeable” is an objective standard based on what a reasonable health care provider would have foreseen. Actual foreseeability by the patient’s medical provider is not dispositive.

This case involves a veteran who suffered partial paralysis as a result of VA surgery. Prior to surgery, he and his wife had been informed, both in writing and orally, of the potential risks of surgery, to include paralysis. The veteran lost the use of his legs shortly following surgery and filed a claim for service connection under section 1151. The Court reviewed the statute and VA’s implementing regulation, and determined that while the term “reasonably foreseeable” is ambiguous, VA has adopted an objective standard to interpret the term, based on the “reasonable health care provider.” The Court held that what was actually foreseen by the physician – and what was provided in the informed consent – is not dispositive, but rather is evidence to be weighed in determining whether an event was reasonably foreseeable such that a reasonable health care provider would have disclosed the risk. 38 C.F.R. §§ 3.361(d)(2), 17.32. Because the Board did not consider whether a “reasonable health care provider” would have disclosed the possibility of spinal cord injury and paralysis as a reasonably foreseeable risk, the Court remanded the case back to the Board to make this determination in the first instance.

Wednesday, September 11, 2013

Ratliff v. Shinseki

Ratliff v. Shinseki, docket no. 11-3243 (Vet. App. Sept. 11, 2013) (order)
A written expression of disagreement with a Board decision that is filed with a VA regional office during the 120-day appeal period will abate the finality of that Board decision for the purposes of appealing to the Court until (1) VA determines that the written disagreement is a Notice of Appeal (NOA) and returns it to the claimant with information on the proper location or forwards it to the Veterans Court; (2) the Board Chairman determines the status of the written disagreement and notifies the claimant; or (3) the claimant files an NOA with the Court after filing a written disagreement with the RO, and the Court determines that the written disagreement was a misfiled NOA.