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)
Thursday, November 1, 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)
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)
(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)
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)
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)
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)
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)
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