HYPO: HEARING LOSS. Comedy of VA Errors Creates Lengthy Delays ANSWERS AND ADVICE

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Matthew Golden
8 years ago
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1 HYPO: HEARING LOSS Comedy of VA Errors Creates Lengthy Delays ANSWERS AND ADVICE

2 ANSWERS AND ADVICE Case was appealed to Veterans Court (CAVC): VA General Counsel (VAGC) and NVLSP attorneys agreed to file joint motion for order to vacate (BVA decision) and for the Court to remand the of service connection to BVA (JMR). January 2010, the CAVC granted JMR. Case was sent back to Board for new decision.

vacate (BVA decision) and for the Court to remand the of service connection to

3 Before the Veterans Court In JMR, VAGC and NVLSP agreed upon following legal principals: Once VA provides exam in connection with claim for S/C, the exam must be adequate for the VA to explain to claimant why adequate examination could not be provided.

connection with claim for S/C, the exam must be adequate for

4 Before the Veterans Court The above rule is true even if VA was not obligated to provide an examination. Barr v. Nicholson, 21 Vet.App. 303, 311 (2007); see 38 U.S.C. 5103A(d)(1)-(2); 38 C.F.R (c)(4). In Barr, CAVC held that an adequate medical opinion must account for lay evidence of record.

303, 311 (2007); see 38 U.S.C. 5103A(d)(1)-(2); 38 C.F.R. 3.159(c)(4).

5 Before the Veterans Court A VA exam is adequate where: It is based upon vet s prior medical history and exams; The final report describes disability in sufficient detail so that the Board s evaluation of claimed disability will be fully informed one (Green v. Derwinski, 1 Vet.App. 121, 124 (1991));

disability in sufficient detail so that the Board s evaluation of claimed

6 Before the Veterans Court If VA exam does not contain sufficient detail the rating board must return report as inadequate for evaluation purposes. In Hensley v. Brown, CAVC held that when audiometric test results at a veteran s separation from service do not meet the regulatory requirements for establishing a disability at that time, he or she [the veteran claimant] may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.

Brown, CAVC held that when audiometric test results at a veteran s separation from service do not meet the regulatory requirements

7 Before the Veterans Court In Hensley, VA conceded and Court agreed the types of evidence that may support a finding of direct S/C include: available testimony, clinical data, diagnoses, and any medical opinions relevant to issue.

finding of direct S/C include: available testimony,

8 Before the Veterans Court BVA decision was vacated and case remanded because VA examiner did not consider potentially corroborative lay evidence.

9 Before the Veterans Court BVA was ordered to obtain new VA exam that: Addresses supportive lay evidence including lay evidence that tends to show continuity of symptomotolotgy; Court also ordered BVA to instruct VA examiner to address evidence in SMR s that tends to show an in-service decrease in vet s hearing.

continuity of symptomotolotgy; Court also ordered BVA to instruct VA examiner

10 Comment Vet was represented by American Legion and record shows vet s representative was involved and proactive. Lay statements submitted by vet show hearing loss close to separation from service and support finding continuity of symptomotology are not types of evidence generally submitted by pro se vet/claimant.

Lay statements submitted by vet show hearing loss close to separation from

11 Comment Problem in this case was with VA adjudicators, VA examiner, and most importantly VA claims adjudication system.

12 Comment Errors made by VA adjudicators Adjudicators in VA RO s have (during development of claims for VA benefits), the opportunity to ask specific questions (based on certain factual assumptions) of VA medical experts.

benefits), the opportunity to ask specific questions

13 Comment VARO adjudicators should have asked VA examiner to specifically discuss positive lay statements in any response to RO. VARO should have made it clear to VA examiner the issue was whether it is as likely as not current hearing loss is linked to service.

RO. VARO should have made it clear to VA examiner the issue was

14 Errors (cont.) Comment VARO adjudicators should have made it clear to VA examiner that it is settled matter of law that when audiometric test results at a veteran s separation from service do not meet the regulatory requirements for establishing a disability at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service.

when audiometric test results at a veteran s separation from service do not meet the regulatory requirements

15 Comment When VA doctor determined that current hearing loss was not caused by service because separation exam was normal, VARO should have returned exam as inadequate

16 Comment And explained to doctor the standard of proof is as likely as not and it is possible for a hearing loss first diagnosed many years after discharge from service to be linked to service.

17 Comment Errors made by VA examiner VA examiner should have addressed positive evidence (medical and lay) of record.

18 Comment Errors created by VA claims adjudication system VA examination was conducted in June About a year later, VARO received several lay statements that tended to support conclusion the vet suffered hearing loss shortly after discharge and that there was continuity of symptomotology.

About a year later, VARO received several lay statements that tended to

19 Comment VARO should have, but did not, order new examination based on new evidence. One reason for this failure was the need for VARO to quickly adjudicate and claim prompt work credit. Sending case back to VA examiner would have created a delay that would be unacceptable to examiner.

One reason for this failure was the need for VARO to quickly adjudicate

20 Comment This is in spite of the fact that a binding (precedent) CAVC decision, Hensley, held that testimony (including lay testimony) must be considered when adjudicating a claim for service connection.

21 Advice to Advocates CAVC could not reverse decision of BVA and order VA to grant S/C because vet did not submit any medical evidence that linked his current hearing loss to service.

22 Advice to Advocates If vet had submitted positive linkage opinion after he submitted supportive lay evidence the Court may have been able to order VA to grant S/C. Of course, many vets do not have health insurance and are not able to pay for private medical opinion.

HYPOTHETICAL--ANSWER SERVICE CONNECTION FOR HEARING LOSS AND TINNITUS

HYPOTHETICAL--ANSWER SERVICE CONNECTION FOR HEARING LOSS AND TINNITUS ANSWER ENTITLEMENT TO SERVICE CONNECTION FOR BILATERAL HEARING LOSS AND TINNITUS. I. Background A. The facts presented are from a real