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In November 2012, VA rescinded its policy that honored exclusive-contact requests from attorney-represented veterans.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.”

Trafter v. Shinseki (evidence required to obtain medical opinion in 1151 claims)

Trafter v. Shinseki, docket no. 10-3605 (Vet. App. Apr. 29, 2013)

The evidence needed to obtain a medical opinion in section 1151 claims is the same as that needed to obtain a medical opinion in regular disability claims – meaning that the evidence only needs to indicate that the claimant’s disability or symptoms may be associated with the VA hospital care, medical or surgical treatment, or examination provided by a VA employee or in a VA facility or as part of a VA rehabilitation program, i.e., Compensated Work Therapy.

1961 Operation Ranch Hand and Agent Orange

Vietnam veterans who participated in Operation Ranch Hand in 1961 can establish direct exposure to Agent Orange with adequate records from their military personnel file. This would include records showing temporary duty assignments in Southeast Asia or award of the Armed Forces Expeditionary Medal, which was issued for Vietnam service prior to the Vietnam Service Medal.

Carpal Tunnel Syndrome is a Chronic Condition under 38 C.F.R. 3.309(a)

Carpal tunnel syndrome is an “organic disease of the nervous system” and, therefore, is a chronic condition that is subject to service connection via legal presumption under 38 C.F.R. § 3.309(a). Veterans who are diagnosed with carpal tunnel syndrome within a year of discharge from service may be eligible for service connection without having to provide medical evidence of a link between their condition and their service.