Archive for October, 2009

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EVIDENCE IS CRUCIAL: Part 2

Tuesday, October 27th, 2009

     In a previous blog posting I discussed evidence in general and the benefit-of-the-doubt rule. I also mentioned the three essential facts that must be proven in a service-connection claim: that there was an injury or first manifestation of disease in service, there is a current disability, and the disability is causally related to the event in service. Medical evidence is crucial to two of these three elements. Unless a disability is so obvious that a lay person can discern it, an amputated limb for example, evidence from a medical provider of some type is necessary to establish that there is a physical or mental condition that is disabling. On the important question of medical causation of a disability, whether the current condition is related to something that occurred in service, the evidence is usually in the form of expert opinion from a doctor or other health-care provider. Even if service connection is established, in order to obtain a higher rating for the condition, there must be medical evidence of the severity of the disability.
     In the old days, panels of the Board of Veterans’ Appeals had at least one doctor on them and they evaluated medical issues, but under present law the VA is not permitted to decide medical questions based on its own judgment without expert opinion to support its decision. Precisely because this evidence must generally come from a medical professional, it is often the most difficult aspect of a claim for veterans to establish.

Sources of medical evidence
     It should be noted that medical opinions do not necessarily have to come from doctors. While the strongest opinion might come from a specialist in a particular area, e.g. a psychiatrist rather than a family doctor concerning a mental condition, anyone with medical training can render an opinion. Thus, PTSD diagnoses have been based on the opinions of social workers or trauma counselors who are not MDs. Depending on the issue, a nurse could be at least as persuasive as a doctor, regarding, say, what hospital treatment would have been.
     Diagnosis of a disability and the severity of impairment caused by that disability can frequently be proven by medical records from health care providers who have treated the claimant. Sometimes a treating physician must be asked specifically to comment on the subject, but he or she is usually willing to do so. More challenging, sometimes, is obtaining the opinion that a present condition is related to an event in service, what VA law calls a “nexus” opinion. This type of opinion statement is rather specialized and must be written in a certain way.
     Some medical cause-and-effect relationships are quite apparent: the damage done by a gunshot wound, the scar caused by a laceration, the bone fracture resulting from a trauma. But many such relationships are less clear, such as the relationship between a trauma to a joint and development of arthritis in the joint many years later, or the connection between some frightening or stressful experience in service and later manifestation of mental disease. These relationships are determined through the judgment of medically-trained people.
     Medical causation is often a matter of probabilities. It cannot be determined with certainty, for example, whether a back injury in service caused or hastened the onset of degenerative arthritis in the back many years later, but doctors will often be able to offer an opinion as to the likelihood of a relationship. Thus, one doctor might be of the opinion that too much time has passed for an isolated injury in service to have been the likely cause of arthritis, while another doctor may believe that the trauma to the back made the joints more susceptible to degeneration and thus contributed to causing the arthritis. To support the claim, the veteran needs an opinion that there is a relation to service, at least as likely as not.
      It is because of the benefit-of-the-doubt rule that medical opinion reports in veterans cases contain language using some variation of the phrase “as likely as not.” As long as the probability of causal relation is 50-50, that is, “as likely as not,” the evidence is balanced, and the benefit-of-the-doubt rule tips the decision in the veteran’s favor. That is why you will so often see medical opinions stated in terms of “as likely as not” or something similar.
Doctors familiar with the VA system usually have some notion about how to phrase opinions in this way, but doctors who have not had experience with the VA claims system will not. Indeed, many doctors have some acquaintance with a significantly different standard used in civil litigation: “to a reasonable degree of medical certainty.” Because veterans need only prove elements of their claims as likely as not, i.e. to a 50-50 probability, they do not have to show medical “certainty” to a reasonable degree, which is a more exacting standard. When this is fully explained, a doctor will sometimes be able to see her way clear to offer an opinion that she would not have been able to offer under the stricter standard. That is, a doctor may be uncomfortable, based on existing medical science and literature, saying that Agent Orange exposure caused a particular cancer to a reasonable degree of medical certainty, but may not be so hesitant to say it is at least as likely as not that the defoliant caused the cancer.
     It is also important for doctors writing opinions to support veterans’ claims to bear in mind that something does not have to be a sole cause to be related sufficiently to establish service connection. If the in-service event or condition was a contributing factor to a later disability, that is enough to sustain the claim.
The court that reviews VA decisions has recently expounded more detail about how medical opinions are to be considered by VA. The essential features are that the provider expressing the opinion must have had the appropriate data available, must state clear conclusions based on that data, and must give a reasoned explanation linking the conclusions to the data. Thus, any opinion obtained in support of a claim should contain a statement as to what was reviewed, whether a physical examination was done, what the opinion is, and what the rationale for the opinion is.

NEXT TIME: How VA gets around the benefit-of-the-doubt rule and what you can do to counter this.

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SOCIAL SECURITY FOUND ME DISABLED, WHY NOT THE VA?

Tuesday, October 20th, 2009

Many veterans pursuing a claim for VA benefits have already been granted Social Security Benefits or are pursuing Social Security benefits for the same disability. A common belief among veterans is that VA should make the same conclusions and/or decision as the Social Security Administration (“SSA”). For instance, many veterans believe that because SSA found them totally disabled, that decision should be binding on the VA, and therefore VA should also find them totally disabled. This is a common misconception. VA is a separate administrative agency form SSA, and therefore is bound by different regulations. Simply put, SSA regulations do not apply to VA claims. See Beaty v. Brown, 6 Vet.App. 532 (1994) (noting that there is not statutory or regulatory authority for the determinative application of SSA regulations to the adjudication of VA claims.) In addition, there are significant differences between SSA regulations and VA regulations. For example, SSA and VA define disabilities differently. Under SSA law 42 U.S.C. § 423(d) and 20 C.F.R. §404.1509, a disability need not be reasonably likely to last a lifetime. VA regulations on the other hand, do require that it be reasonably certain that a disability will continue throughout the life of a person. 38 U.S.C. §1502(a)(1) and 38 C.F.R. § 3.340(b).
While VA is not legally bound to follow SSA decisions, however, it is obligated to take the SSA decisions into consideration when rendering a decision on a claim and provide adequate reasons or bases for why the SSA conclusions are not accepted. Brown v. Derwinski, 2 Vet.App. 444 (1991). Moreover, once VA has been put on notice that SSA documents exist, and those documents are pertinent to the VA claim, VA has a duty to assist the veteran in obtaining the SSA records prior to adjudicating the claim. See Murincsak v. Derwinski, 2 Vet.App. 363 (1992).

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Moot Court competition to be held October 14 and 15, 2009, in connection with the Court’s 20th anniversary

Wednesday, October 14th, 2009

The Court of Appeals for Veterans Claims and the Court of Appeals for Veterans Claims Bar Association are jointly sponsoring a Moot Court competition to be held October 14 and 15, 2009, in connection with the Court’s 20th anniversary. Fourteen teams from the following universities will participate:

Four Goodman Allen Donnelly attorneys have been invited to participate. Sandy Wishow is scoring briefs and Dan Krasnegor, David Boelzner and Todd Wesche are serving as argument judges for the competition.

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New conditions added to Agent Orange presumptive list

Wednesday, October 14th, 2009

VA announced on October 13, 2009, that it will add three more illnesses to the “presumptive list” of Agent Orange related diseases: Parkinson’s disease, B cell leukemias, such as hairy cell leukemia, and ischemic heart disease.

In practical effect, this means that a service person who served in Vietnam during the war and has one of these diseases will find it far easier to establish service connection for these diseases.

For the Department of Veterans Affairs news release, see

http://www1.va.gov/opa/pressrel/pressrelease.cfm?id=1796

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EVIDENCE IS CRUCIAL, “AS LIKELY AS NOT”

Friday, October 2nd, 2009

“Evidence” is a subject law students devote considerable effort in studying, and it can present complexities even to the best legal minds. But it is quite possible and useful to understand the basic concepts as they relate to the veterans claims system, which is in some ways unique in this regard. You will have a better chance of obtaining benefits from the VA if you understand what you have to provide in the way of evidence to support your claim. It is perhaps worth a reminder that VA does not award benefits based on service to country, however dedicated, or on sympathy for a veteran’s hardship, however difficult; it can award only where evidence shows entitlement.
Evidence and elements of claims
“Evidence” refers to the information, whether from witnesses, written statements, documents or other records, that is considered and evaluated by an adjudicator in making a decision on a claim. Every legal claim has certain “elements” that must be proved, that is, certain points that must be established as true to the adjudicator’s satisfaction before the claim can be won. Thus, in a manslaughter case, for example, the prosecutors must prove that the accused caused a death and did so through carelessness, while in a first degree murder case the prosecutors have to show that the accused not only caused the death but intended or planned for it – different elements for different crimes. In a classic veteran service connection case, the elements that must be proven are (1) an incident in service, i.e. an injury or first manifestation of a medical condition, (2) a current recognized disability, and (3) a causal relation between (1) and (2), i.e. the disability is the same condition or related to the incident in service in some way.
Standards of proof
The key facts of a legal claim must be proved to a particular degree of certainty, which varies depending on the type of claim. In a criminal case, the law requires proof “beyond a reasonable doubt,” that is, the decision-maker (often a jury) must be so convinced of guilt that any doubt about it would be unreasonable in light of the evidence. This is a difficult standard of proof; the view of the law is that before a person is deprived of his liberty, or even his life in some states for some crimes, there should really be nearly absolute certainty about guilt. In an ordinary civil case, such as a personal injury claim arising from a car accident or a contract dispute, the standard of proof is simply that the evidence is slightly stronger in favor of the claimant (plaintiff), even if only by a small degree. If the evidence is so balanced that the adjudicator can’t decide one way or the other, the plaintiff has failed to meet her burden and the defendant wins. Lawyers call this standard the “preponderance of the evidence,” from the idea that the evidence “weighs” slightly heavier in one direction.
Benefit of the doubt
When Congress established the veterans claims system, it wanted to make it as friendly to the award of benefits as it could and still require proof that benefits were appropriate. So it passed a law, found at § 5107(b) of Title 38 of the United States Code, which says that when there is an approximate balance of evidence (what lawyers often call “equipoise”) on any point crucial to the decision, the benefit of the doubt is to be given to the claimant. In terms of the evidentiary standards discussed above, this means that a veteran claimant does not have to provide proof as convincing as a civil litigant under the preponderance standard: if the evidence in a civil case were more or less balanced, the claimant would lose, but the veteran is supposed to win in that circumstance. It is equivalent to the old baseball rule: tie goes to the runner.
Practical application; “as likely as not”
How do these abstract legal concepts work in actuality? Let’s say the issue in question is whether a soldier hurt her head in a bad fall in service. She remembers (years later) that she had a headache immediately after the fall. A record of sick bay treatment right after the incident does not mention a head injury but discusses other more pressing concerns: bleeding and a compound fracture of one arm. A follow-up record two days later notes, in addition to the progress of healing of the arm, a small bruise on the forehead. VA might dismiss the veteran’s recollection years later as flawed or possibly self-serving and regard the absence of any mention of a head injury in the treatment note on the day of the accident as evidence that there was no such an injury. But the fact that there were more urgent injuries to address in first aid and the mention of the bruise in a record a couple of days later supports the veteran’s recollection. As lawyer for the claimant I’d argue that this evidence weighs more heavily in the veteran’s favor, that there is a preponderance of the evidence, but, at the very least, this would seem to present an approximate balance: there is some evidence of a head injury and some indicating none occurred, but neither is overwhelming. Under the benefit-of-the-doubt rule, the veteran wins.
NEXT TIME: The special issue of medical opinion evidence.

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