Update: Recent CAVC Cases. Recent Cases Help Advocates Detect VA Error

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Ashlee Dickerson
7 years ago
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1 Update: Recent CAVC Cases Recent Cases Help Advocates Detect VA Error

2 Summary of Cases Kahana Don t let VA/BVA give own med. opinion Savage Clarify unclear med. reports, don t just deny Clemons Don t let VA interpret claim too narrowly

3 Summary of Cases Nieves-Rodriguez Don t accept doctor s unexplained med. conclusion Jones Special conditions for doctor to say can t give med. opinion

4 Kahana -- Don t let VA/BVA give own med. op. Facts: SMRs showed many problems w/ L knee 1 record showed R knee problem Vet says hurt R knee in Tae Kwon Do match Sought med. Help but told was just sprain Separation exam showed problem w/ R knee Post-service, vet has ACL reconstruction on L knee

Vet says hurt R knee in Tae Kwon Do match Sought med.

5 Kahana -- Don t let VA/BVA give own med. op. VA dr. opined R knee not related to service, was work related BVA denied SC because an ACL injury is: significant one would expect to see documentation of injury or vet would have mentioned it on exit exam

denied SC because an ACL injury is: significant one would

6 Kahana -- Don t let VA/BVA give own med. op. Error: Board used its own med. Judgment Error: record contained no medical evid on relative severity, common symptoms & usual treatment for ACL injury

7 Kahana -- Don t let VA/BVA give own med. op. BVA used its med. judgment about ACL injury to find Vet. not credible Takeaway: Med. conclusions must have independent basis in record Subtle medical judgment by BVA still error Severity of injury, common symptoms, usual treatment

conclusions must have independent basis in record Subtle medical

8 Savage -- Clarify unclear med. reports, don t just deny Facts: Vet. sought increase for SC hearing loss Submitted private audio exam reports that did not say if Maryland CNC test was used VA requires that speech recognition testing must use the Maryland CNC test (38 CFR 3.385)

reports that did not say if Maryland CNC test was used VA requires

9 Savage -- Clarify unclear med. reports, don t just deny BVA rejected private audio report b/c examiner did not note whether Maryland CNC Test was used BVA found reports inadequate & rejected that evid vet denied rating increase BVA must ask examiner to clarify certain unclear med. reports or reports it finds not suitable

note whether Maryland CNC Test was used BVA found reports inadequate & rejected

10 Savage -- Clarify unclear med. reports, don t just deny CAVC found rejection of med. records w/out requesting clarification was error Takeaway - VA may explicitly or implicitly assume that certain required testing was not done or was not done according to VA guidelines Advocate should request clarification

records w/out requesting clarification was error Takeaway - VA may

11 Clemons -- Don t let VA interpret claim too narrowly Facts: Vet. files claim for chronic fatigue syndrome (CFS) as sec. to DM meds After VA exam, vet diagnosed with sleep apnea No diagnosis of CFS and claim for CFS denied Argue that VA should consider the claim as one for fatigue symptoms as well as CFS Argue that VA must develop claim for SC for sleep apnea (that is apparently causing vet s fatigue symptoms )

to DM meds After VA exam, vet diagnosed with sleep apnea No diagnosis of CFS and claim for CFS denied

12 Clemons -- Don t let VA interpret claim too narrowly 2 nd Set of Facts: Vet files claim for PTSD, flashbacks, nightmares served on U.S.S. Rochester from 2/52 to 9/53, where he says he fired guns at enemy, unloaded dead bodies & put them in body bags & into ship's freezer Submitted commendation letter--said from 11/51-4/52 his ship completed 21 gun strikes against enemy strongholds

fired guns at enemy, unloaded dead bodies & put them in body bags & into ship's freezer

13 Clemons -- Don t let VA interpret claim too narrowly Med. records showed c/o anxiety in 3/56 More recent VA medical records revealed notations of anxiety disorder results of MMPI-2 (personality test) showed schizoid personality disorder rather than PTSD 7/03 VA med record described vet s symptoms as "anxiety disorder multifaceted in origin (COPD, PTSD features)"

anxiety disorder results of MMPI-2 (personality test) showed schizoid personality disorder

14 Clemons -- Don t let VA interpret claim too narrowly BVA eventually denied SC for PTSD vet argued at CAVC that he had one claim and that it was improperly adjudicated He argued that VA had an obligation to consider SC for PTSD and any other acquired psych disorder that he has

it was improperly adjudicated He argued that VA had an obligation to

15 Clemons -- Don t let VA interpret claim too narrowly CAVC agreed with vet No matter how vet identifies claim, VA should consider claim based on symptoms vet is experiencing So VA should decide SC for any mental disability that may be encompassed by: Vet s symptoms Info vet submits or VA obtains

symptoms vet is experiencing So VA should decide SC for any mental

16 Clemons -- Don t let VA interpret claim too narrowly Tip based on Clemons: Vets. and advocates should frame claim for SC as broadly as possible Example: if vet believes she suffers from PTSD, file claim for SC for any and all mental disorders that the veterans may have, including PTSD Try not to limit claim to one diagnosis

believes she suffers from PTSD, file claim for SC for any and all mental

17 Clemons -- Don t let VA interpret claim too narrowly If ultimate diagnosis is different from the one for which vet. claimed SC then advocate may be able to argue VA should have considered claim for SC for another disability

vet. claimed SC then advocate may be able to argue VA

18 Nieves-Rodriguez -- Don t accept doctor s unexplained med. conclusion Facts: vet. has diagnosis of bilateral HL VA conceded acoustic trauma in service VA gave vet exam and got med. linkage op.

19 Nieves-Rodriguez -- Don t accept doctor s unexplained med. conclusion Dr. referenced following facts: vet first diagnosed with HL in 3/03 Vet s mother had suffered from HL vet had bilat pharyngoeophageal tube placement due to sinus problems vet had history of ear infections, none in 5 yrs some noise exposure during factory job post-service but wore hearing protection

from HL vet had bilat pharyngoeophageal tube placement-1980- due to sinus problems vet had

20 Nieves-Rodriguez -- Don t accept doctor s unexplained med. conclusion Examiner gave negative linkage op. Gave no reason why it was less likely than not that vet s HL connected to service

21 Nieves-Rodriguez -- Don t accept doctor s unexplained med. conclusion Problems with VA exam: Did not explain why normal hearing at discharge means that current HL was not caused by in-service acoustic trauma Did not adequately address evid showing vet. had some HL in service Dr. did not explain relevance of the facts recited

22 Nieves-Rodriguez -- Don t accept doctor s unexplained med. conclusion A med. opinion should contain analysis of how facts led to the medical conclusion Med. opinion may not contain only data and conclusions BVA errs when it relies on a med. op. stating that cond. is not linked to service if there is not an adequate explanation

23 Nieves-Rodriguez -- Don t accept doctor s unexplained med. conclusion Tip: If negative med. linkage opinion fails to provide a rationale for negative conclusion - advocates should argue that vet. deserves an opinion with a full explanation

24 Jones -- Special conditions for doctor to say can t give med. opinion Problem: Examiner says not possible to give medical linkage op. without speculating Advocates have in past argued that VA failed to satisfy duty to assist if medical opinion was inconclusive

25 Jones -- Special conditions for doctor to say can t give med. opinion In Jones, CAVC provides guidelines in this situation: Inconclusive med. op. may fulfill duty to assist if it is legitimate Dr. plumbed limits of med. knowledge or Info necessary to make med conclusion not available

26 Jones -- Special conditions for doctor to say can t give med. opinion If dr. says can t give med. op. w/out speculating: Ask if examiner provided explanation for why giving opinion is not possible (if not, Jones violation) Ask if examiner said more info. is needed (if yes, VA has to make reasonable effort to get this info)

27 Jones -- Special conditions for doctor to say can t give med. opinion If med. op. is inconclusive (cont.) Ask if examiner researched the issue, look at medical texts (if not, Jones violation) Advocates should submit reputable med. texts to Dr. and to VA Ask if examiner actually provided rationale In Jones, CAVC found that the examiner s rationale was just a recitation of the exam results. This was not adequate.

Game Changers: Recent Cases that Make a Difference

Game Changers: Recent Cases that Make a Difference Game Changing Case re: Diagnosis Vet claims SC for PTSD but when examined is diagnosed with another mental disorder and not PTSD. Does vet have to start