Pirkl v. Shinseki

Pirkl v. Shinseki, 718 F.3d 1379 (2013)
Finding clear and unmistakable error (CUE) in one decision does not necessarily void subsequent decisions, but may require the RO to consider the effects of the CUE decision on subsequent decisions. In this case, the Board found CUE in a 1953 decision, but did not find that the veteran was entitled to a 100% rating for the entire period of time between that decision and 1988 because there were several post-1953 decisions. The CAVC affirmed the Board’s decision, finding that the subsequent decisions were not based on the 1953 decision.

The Federal Circuit remanded, holding that a finding of CUE in the 1953 decision “changed the factual and legal background against which subsequent reductions were made, and that the Board failed to consider the effect of this change in implementing its finding of CUE.” *10. Because the finding of CUE in the 1953 decision resulted in the veteran’s disability rating being reset to the 100% rate, the Federal Circuit determined that any subsequent reductions were from a 100% rating – and VA was required to follow the rules regarding reducing a total rating in effect at the time. The Federal Circuit remanded the case for the RO to consider, in the first instance, whether the subsequent rating reductions were proper in light of the finding of CUE in the 1953 decision.

Hall v. Shinseki

Hall v. Shinseki, docket no. 2012-7115 (Fed. Cir. June 7, 2013)
A veteran alleging PTSD due to an in-service sexual assault cannot rely on the relaxed evidentiary standards of 38 C.F.R. § 3.304(f)(3) to require VA to accept his statements alone to prove that his in-service stressor occurred. This regulation only applies to a veteran whose in-service stressor “relates to an event or circumstance that a veteran experienced, witnessed, or was confronted with and that was perpetrated by a member of an enemy military or by a terrorist.” The Federal Circuit noted, but did not address, the veteran’s argument that the existence of § 3.304(f)(5) (regarding in-service personal assault) does not prevent the application of
§ 3.304(f)(3).

Gulf War Task Force Report open for notice and comment

·         VA released a draft of its Gulf War Task Force Report. It is available at http://www.va.gov/opa/publications/Draft_2012_GWVI-TF_Report.pdf. The report describes how VA is addressing the concerns of veterans who deployed during the Gulf War in 1990 and 1991. The report is open to public comment until June 12, 2013. Instructions on how to submit comments can be found at www.regulations.gov. 

-

·        - From VA’s Compensation Service Bulletin (March 2013)

Revised application for disability benefits (VA Form 21-526EZ)

VA has revised its Application for Disability Compensation and Related Compensation Benefits, Form 21-526EZ, which will replace VA Forms 21-526 (application for compensation and/or pension), 21-526b (supplemental claim form), and 21-526c (pre-discharge compensation claim). The new application form is essentially only two (2) pages long – but it is accompanied by six (6) pages of information regarding the Fully Developed Claim process and the evidence needed to support various types of claims. This change is in response to legislation that revises VA’s notification requirements.  
 -From VA’s Compensation Service Bulletin (March 2013)

Evidence required to establish stepchild as a dependent

     VA may accept a veteran’s lay statement as sufficient proof to establish a stepchild as a dependent, as long as the statement includes (1) the date (month and year) and place of the event; (2) the full name and relationship of the other person to the claimant; and, (3) where the claimant's dependent child does not reside with the claimant, the name and address of the person who has custody of the child. In addition, a claimant must provide the Social Security number of any dependent on whose behalf he or she is seeking benefits. 38 C.F.R. § 3.204(a)(1).

·        -From VA’s Compensation Service Bulletin (March 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.