VA's New Claims Processing Initiative Eliminates the Need for Medical Exam

VA announced a new initiative in processing disability claims called Acceptable Clinical Evidence (ACE), which will allow VA to assess a veteran’s claim for benefits without conducting an in-person medical examination, as long as there is sufficient medical evidence in the record to decide the claim. Under this new process, a VA physician will complete a questionnaire based on review of the medical evidence in the veteran’s file – and the regional office will make its decision based on that review. Several veterans’ advocates (myself included) are concerned that this may not always be in the veteran’s best interest. Veterans who file claims for disability compensation benefits and feel that they need an in-person medical examination, should request one in writing to the RO.

VA Policy on Whether Room and Board Expenses at Senior Residential Facilities Qualify as Unreimbursed Medical Expenses for Pension Purposes

In Fast Letter 12-23, VA clarified its policy regarding whether the cost of room and board at senior or independent living facilities qualifies as an unreimbursed medical expense (UME) that can be deducted from income for pension purposes. VA policy is that the cost of room and board at such facilities is only a UME when the facility provides “custodial care” – which involves assisting with activities of daily living (ADLs). VA defines ADLs as “basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and suing the toilet.” 38 C.F.R. § 4.124a note 3. A facility provides custodial care for VA purposes if it assists a person with two or more ADLs. The cost for room and board at these types of facilities can also qualify as a UME if a person’s physician states in writing that the person residing in such facility requires (and contracts for) custodial care from a third-party provider. Costs for assistance with meal preparation, housework, shopping, laundry, etc., are not UMEs for pension purposes because these are not medical or nursing services. VA will, however, deduct these costs from the individual’s income when that person receives pension at the “aid and attendance” or “housebound” rate, or a physician certifies that the person needs to be in a protected environment, AND the facility also provides medical services or assistance with ADLs to the individual.

Vazquez-Claudio v. Shinseki (criteria for establishing service connection for mental condition)

      Vazquez-Claudio v. Shinseki, docket no. 2012-7114 (Fed. Cir. Apr. 8, 2013) 

A veteran with a claim for service connection for a mental condition may only qualify for a disability rating under 38 C.F.R. § 4.130 (the regulation regarding disability ratings for mental conditions) “by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration” and by showing that those symptoms result in occupational and social impairment in a number of areas listed in the regulation, “such as work, school, family relations, judgment, thinking, or mood.” A claimant cannot satisfy a particular rating by only showing that he/she has occupational and social impairment in most of the listed areas.

Johnson v. Shinseki

Johnson v. Shinseki, 26 Vet.App. 237 (Mar. 27, 2013) (en banc)

EXTRASCHEDULAR CONSIDERATION (38 C.F.R. § 3.321(b)(1))

The Board is not required to consider whether a claimant is entitled to referral for extraschedular consideration of his multiple disabilities on a collective basis. An extraschedular evaluation is awarded solely on a disability-by-disability basis and not on the combined effect of multiple disabilities. But see concurring and dissenting opinions.

Robertson v. Shinseki (clemency discharge and entitlement to VA benefits)

Robertson v. Shinseki, docket no. 11-3521 (Vet. App. Mar. 15, 2013) 

Any failure on the part of VA to fully explain its character-of-discharge determination cannot be “clear and unmistakable error” because it is simply a breach of VA’s duty to assist. This case also reaffirmed prior holdings that a Presidential pardon only relieves the legal punishment of a general court-martial conviction, “but does not eliminate the consideration of the conduct” that resulted in conviction. In other words, a clemency discharge does not automatically entitle a veteran to VA benefits. VA is still allowed to consider the conduct that resulted in the discharge when considering eligibility to VA benefits.

Rickett v. Shinseki

Rickett v. Shinseki, 26 Vet.App. 210 (Mar. 12, 2013) (per curiam order)

EQUITABLE TOLLING – TIMELY MISFILING

Equitable tolling is warranted when a veteran submits an NOA to VA’s Office of the General Counsel within the 120-day appeal period. The Court stated that “equitable tolling is predicated primarily on the due diligence of the prospective appellant as opposed to the particularity of the location at which the prospective appellant misfiles his or her NOA.” 26 Vet.App. at 218. The criteria for equitable tolling in cases of timely misfilings are (1) a timely misfiling (i.e., within the 120-day appeal period); (2) the intent to appeal as shown in the form and content of the NOA and the circumstances surrounding the filing of the NOA; (3) notice to VA of intent to appeal; and (4) relaxed due diligence for pro se appellant based on totality of the circumstances. Id. at 218-20.

Beasley v. Shinseki (VA’s duty to obtain medical opinion)

Beasley v. Shinseki, docket no. 2012-7029 (Fed. Cir. Mar. 11, 2013)

The U.S. Court of Appeals for the Federal Circuit reaffirmed that it has jurisdiction to review denials of petitions for writs of mandamus from the U.S. Court of Appeals for Veterans Claims (CAVC). The question on the merits of the case was whether VA’s duty to assist required VA to obtain a medical opinion from the veteran’s VA physician based on evidence that had not been submitted to the Board. The Federal Circuit held that VA’s duty to assist is not an “open-ended obligation . . . to provide a medical examination or opinion upon demand.”

In a spirited dissent, Judge Newman frames the issue as whether VA “can prohibit a veteran’s VA physician from reviewing the veteran’s evidence of service connection, lest the physician’s opinion present a ‘conflict of interest.’” Judge Newman states that “[t]his cannot be what Congress intended by the ‘duty to assist’” and asserts that the petition for mandamus should be granted.