Romanowsky v. Shinseki

Romanowsky v. Shinseki, docket no. 11-3272 (Vet. App. July 10, 2013)
Evidence of a recent diagnosis of a disability that was made prior to the veteran’s filing of a claim for that disability is relevant evidence that the Board must address in determining whether a current disability existed when the claim was filed or during its pendency. In this case, the veteran was diagnosed with an adjustment disorder in May 2008, which resulted in his discharge from service. He filed a claim for VA benefits for that disorder in November 2008. In December 2008, a VA examiner determined that the veteran did not have an adjustment disorder, and VA denied the claim the following month. The veteran appealed to the Board of Veterans’ Appeals – and the Board relied on the CAVC’s prior holding in McClain v. Nicholson, 21 Vet.App. 319 (2007), to determine that the May 2008 diagnosis falls outside the claim period, and that there was no current diagnosis for VA benefits purposes.

The Court held that the Board misconstrued McClain and erred by not considering whether the May 2008 diagnosis established that his disability existed at the time he filed his claim, even if the disability resolved prior to adjudication. The Court also provided a lengthy discussion of the appropriate remedy, and appeared poised to reverse, noting that “the ‘clearly erroneous’ standard applied by the Court is less deferential than the ‘substantial evidence’ standard applied by courts when reviewing non-VA administrative adjudication.” Opinion at *10 (quoting R. Pierce, Administrative Law Treatise §§ 11.2, 11.3 (5th ed. 2010)). However, the Court determined that remand was appropriate in this case because of the Board’s misinterpretation of McClain and its failure to weigh the evidence.

Yonek v. Shinseki

Yonek v. Shinseki, docket no. 2012-7120 (Fed. Cir. July 8, 2013)
In this case, the Federal Circuit held that a veteran is only entitled to a single disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5201, for each arm where there is limited motion of the shoulder. The Court held that a veteran cannot get separate ratings for flexion and abduction. The Court acknowledged that diagnostic codes for the knee and elbow allow for separate ratings for limitation of flexion and extension, but relied on the plain language of DC 5201 to find that any limitation of motion of the shoulder constitutes a single disability, regardless of the various ways in which the motion is limited.

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. 

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·        - 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)