Shephard v. Shinseki

Shephard v. Shinseki, docket no. 11-2074 (Vet. App. Feb. 27, 2013) This case involves the question of whether a veteran is entitled to recoup disability benefits that were withheld while the veteran was incarcerated. When a veteran who is receiving monthly VA benefits is incarcerated for a felony conviction, a portion of benefits is withheld starting on the 61st day of incarceration. 38 U.S.C. § 5313(A)(1). Upon release, the veteran’s full benefits can resume. 38 C.F.R. § 3.665(i). If the veteran’s conviction is overturned, the amount withheld can be restored. 38 C.F.R. § 3.665(m). But unless the conviction is overturned, the veteran is not entitled to receive the amount withheld during incarceration. The Court held that the governing statute “contains neither an implicit nor explicit command to pay, upon a veteran’s release from incarceration, those sums previously reduced.”

Walker v. Shinseki

Walker v. Shinseki, docket no. 2011-7184 (Fed. Cir. Feb. 21, 2013) The Federal Circuit held that the theory of establishing service connection via a showing of “continuity of symptomatology,” under 38 C.F.R. § 3.303(b), is limited to only chronic conditions listed in 38 C.F.R. § 3.309(a). In this case, a claimant tried to establish service connection for hearing loss with lay statements showing that his hearing worsened in service and continued to worsen following service – in other words, by showing “continuity of symptomatology.” The Federal Circuit held that this method of establishing entitlement to service connection is limited to only to those chronic conditions listed in § 3.309(a). The Federal Circuit acknowledged that there was no specific cross-reference to § 3.309(a) in § 3.303(b), but found that a “harmonious reading” of these regulations (along with § 3.307(a)) “supports an implicit cross reference to § 3.309(a) in § 3.309(b).

Bowers v. Shinseki

Bowers v. Shinseki, docket no. 10-3399 (Vet. App. Feb. 19, 2013) The presumption of service connection for amyotrophic lateral sclerosis (ALS) is available only to those who meet VA’s definition of “veteran” – and is, therefore, not available to those whose only period of active service was active duty for training, unless the claimant shows that he/she incurred the condition during that active duty for training. The veteran in this case sought service connection for ALS on a presumptive basis under 38 C.F.R. § 3.318. The veteran served in the National Guard from March 1972 to March 1978, with a continuous period of active duty for training that exceeded 90 days. VA denied the claim because it found that there was no evidence that he had a disease or injury that was incurred or aggravated during his period of active duty for training – and, therefore, that period of service did not qualify him for VA benefits. The CAVC affirmed.

Andrews v. Shinseki

Andrews v. Shinseki, docket no. 09-2065 (Vet. App. Jan. 31, 2013) This case involves the question of whether the time period to use VA’s vocational rehabilitation benefits runs while a veteran is appealing a denial of a claim for such benefits. The CAVC held that the 12-year eligibility period for the use of VR benefits was stayed while the veteran’s appeal of an adverse decision regarding such benefits was pending. The Court also held that the Board was required to seek an additional opinion from a counseling psychologist before determining that the veteran did not suffer from an employment handicap sufficient to warrant an extension of benefits. The Board recognized that in 1994 the veteran had additional service-connected disabilities. Nevertheless, it relied on a 1991 VA psychologist’s report that did not include an assessment of the effect of the veteran’s subsequently adjudicated disabilities.

Viegas v. Shinseki

Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. Jan. 31, 2013) In this case, a disabled veteran who was receiving physical therapy at a VA medical facility was injured when he fell in the bathroom after the handicap bar came loose from the wall. In assessing “causation” under 38 U.S.C. § 1151 (VA’s version of a medical malpractice claim), the Federal Circuit appeared to ease the requirements of showing that a veteran’s injury was “directly” caused by the “actual” medical care provided by VA personnel. The Court stated that “VA cannot reasonably furnish hospital care[] or medical treatment to disabled veterans without also providing access to handicapped-accessible restrooms,” and found that the veteran’s injury was not “merely ‘coincident’” with his physical therapy, “but was instead caused by the VA’s failure to properly maintain and install the equipment required so that that treatment could take place.” The Court held that “while the medical treatment provided by the VA typically includes ‘direct involvement with VA staff,’ [] this does not mean that it does not also include the medications and equipment necessary to provide such treatment.”

VA Eliminates Need to File Eligibility Verifacation Reports

On December 20, 2012, VA announced that it will implement a new process to confirm ongoing eligibility for pension benefits by eliminating the need for veterans to complete an annual Eligibility Verification Report (EVR). Instead of requiring annual reports, VA will work with the Internal Revenue Service and the Social Security Administration to verify continuing eligibility for pension. Veterans who currently receive VA pension benefits will receive a letter from VA explaining the changes. The text of the full press release can be found at: http://www.va.gov/opa/pressrel/pressrelease.cfm?id=2414.

Monzingo v. Shinseki

      Monzingo v. Shinseki, docket no. 10-922 (Vet.App. Nov. 21, 2012)

In this case, the CAVC expanded on its case law surrounding the theory of constructive possession, finding that two scientific reports that were published with VA involvement were not “constructively” part of the record before the Board. The Court also clarified its case law on the adequacy and inadequacy of medical opinions.

In Monzingo, the Board denied the veteran’s claim for entitlement to service connection for hearing loss. On appeal to the Court, the veteran argued that the Board failed to (1) address the possibility that his service-connected tinnitus was evidence of ongoing hearing loss since service and (2) explain its reliance on a medical opinion that found that his hearing acuity actually improved during service. To support these arguments, the veteran relied on two scientific reports from 2006 and 1982. The 2006 report had been partly commissioned by VA. The 1982 report had been prepared with the participation of a VA employee. The veteran had not submitted either of these reports to VA during the pendency of his claim.

Following a full discussion of the Court’s case law on the theory of constructive possession, the Court found that there was no evidence that the two reports in question were constructively before the Board. The fact that VA sponsored and received a copy of the 2006 report was not enough to establish constructive possession. And the fact that the report was about military-related hearing loss was “too tenuous” a connection to support an expectation that the report would be in the record of every hearing loss claim. Similarly, the Court found that apart from noting the involvement of a VA employee in its preparation, there was no other support that the 1982 report was constructively before the Board. The Court found that “absent Mr. Monzingo’s submission of the document to VA or his request that it be obtained,” there was no reasonable expectation that this report would be in the record before the Board.

The Court also declined to take judicial notice of the findings in the two reports, stating that the findings were “neither facts of universal notoriety nor facts not subject to reasonable dispute.” The Court found that the Board did not err by failing to address these reports, since the veteran did not raise these reports and their findings to the Board, and they were not reasonably raised by the record.

Finally, the Court elaborated on what makes a medical opinion adequate. The Court began by reiterating that medical examiners are not required to address every piece of favorable evidence of record, citing Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012) (noting no reasons-or-bases requirement for examiners). The Court stated that “examination reports are adequate when they sufficiently inform the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion.” The Court cited D’Aries v. Peake, 22 Vet.App. 97, 104 (2008), to support this statement – but it seems to me that the Court’s statement loosens the standard enunciated in D’Aries. See D’Aries (“An opinion is adequate where it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability in sufficient detail so that the Board’s ‘evaluation will be a fully informed one.’”).

With respect to the medical examiner’s rationale, the Court acknowledged that the rationale provided in this case “did not explicitly lay out the examiner’s journey from the facts to a conclusion.” However, the Court found that that was not sufficient to render the report inadequate. Instead, the Court found that “the medical report must be read as a whole,” and that review of the entire report in this case demonstrated the basis for the examiner’s rationale.

The Court added that the veteran failed to show that he himself was competent to rebut the examiner’s opinion, citing Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting the competence of laypersons to testify as to symptoms, but not diagnoses). However, the Court later stated that the question in this case is whether the veteran’s “hearing acuity worsened during service,” (which seems to me to be more a question of symptomatology than diagnosis).

The Court noted that even if a medical opinion is inadequate to decide a claim, it is not necessarily entitled to no probative weight. If the opinion “is merely lacking in detail, then it may be given some weight based upon the amount of information and analysis it contains.” The Court stated that “VA is not permitted to completely ignore even an ‘inadequate’ opinion or examination, whether it is in favor or against a veteran’s claim.”