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 all over again, claiming SC for the other mental disorder?

Clemons v. Shinseki Clemons: 23 Vet.App. 1 (2009) Background: Veteran claimed SC for PTSD VA medical records revealed several notations of anxiety disorder

Clemons Background (Cont d) Also med records that vet suffered from schizoid personality disorder and anxiety disorder multifaceted in origin BVA denied SC for PTSD: The veteran did not have a diagnosis of PTSD VAE not necessary b/c record clear that there is a lack of diagnosis of PTSD

Clemons Holding Court held: Vet incompetent to self diagnose mental condition Despite claiming SC for PTSD, evidence showed claim was for any mental disability that may reasonably be encompassed, based on Description of symptoms Description of claim Information gathered/submitted in support of claim

Clemons Holding (Cont d) Quotes Appellant did not file to receive benefits only for a particular diagnosis, but for the affliction his mental condition, whatever that is, causes him. Vet s claim for benefits based on PTSD encompassed benefits based on an anxiety disorder and/or a schizoid disorder b/c evidence developed during processing of claim indicated that the symptoms for which [he] was seeking VA benefits may have been caused by an anxiety and/or schizoid disorder

Clemons-- --Advocacy Tips 1) VA must determine the scope of a claim 2) A single claim can encompass more than 1 condition 3) Argue a for a broad reading of any claim where veteran is incompetent to self- diagnose Ex. Vet claims SC for ulcers, but has dx of GERD, chronic gastritis, and hiatal hernia Ex. Vet claims SC for asbestosis, but has dx of pleural plaques and pleural effusions

Clemons Game Changing Because: Even though vet claimed SC for a specific condition, VA may be obligated to consider SC for other diagnosed conditions as well if the vet mentions, or if vet s s records relate symptoms of the other conditions

Game Changing Case re: the Power of Lay Evidence

Davidson v. Shinseki Davidson: : 581 F.3d 1313 (Fed. Cir. 2009) Background: Widow of veteran claimed DIC Death certificate indicated accidental drowning Wife claimed death due to anxiety disorder related to service

Davidson Background (Cont d) VA examiner found it not at least as likely as not that death was result of acquired psychiatric disability Widow submitted written & oral testimony that vet committed suicide b/c of a mental disorder related to service

Davidson Background (Cont d) BVA found widow not competent to provide a probative (persuasive) opinion on a medical matter such as the etiology of a disability CAVC agreed, said lay statements do not eliminate the need for a valid medical opinion establishing a nexus between [a veteran s] death and the in-service disease

Davidson Federal Circuit Holding 38 U.S.C. 1154(a) requires VA to give due consideration to all pertinent medical and lay evidence Fed Cir has held that lay evidence can be competent and sufficient to establish a diagnosis, if: Layperson is competent to identify the condition Layperson is reporting a contemporaneous medical diagnosis Lay testimony describing symptoms at the time supports a later diagnosis by a medical professional CAVC & VA were wrong to conclude that a a valid medical opinion was required to establish nexus

Davidson: Advocacy Tips How far does this case go? Can sometimes argue lay testimony alone competent to show a diagnosis (Jandreau( Jandreau) Can sometimes argue lay testimony competent to establish nexus Ex. Consistent complaints of headaches from service, later diagnosed as migraines Competent to establish nexus? Ex. Consistent complaints of anxiety, nightmares, flashbacks from service, later diagnosed as PTSD Competent to establish nexus?

Davidson Game Changing because: lay testimony may not be categorically rejected in cases where the determinative issue involves either medical etiology or a medical diagnosis More room for advocates to use lay statements Are medical opinions as crucial as we thought?

Game Changing Cases re: Conditions not on Presumptive List

SC due to Herbicide Exposure for Condition not on Presumptive List Two Questions: 1) Can a veteran win service connection for a disability claimed as due to herbicide exposure under a theory of direct service connection? 2) If so, what type of medical nexus opinion is necessary?

Stefl v. Nicholson Stefl: 21 Vet.App. 120 (2007) Background: Vet claimed SC for disease not on presumptive AO list Positive, but speculative, medical nexus opinion VA obtained Medical Nexus Opinion Dr. opined vet s s disability not related to AO Reason: disease not on VA s s list of diseases presumed to be related to Agent Orange exposure

Stefl: Holding Court held: Direct service connection must be considered if raised by the record The absence of the vet s s diagnosed illness on the list at 38 C.F.R. 3.309(e) is insufficient reason to deny SC

Polovick v. Shinseki Polovick: 23 Vet.App. 48 (2009) Background: Vet claimed SC for malignant glioma,, a cancer not listed on presumptive list Positive evidence -- Veteran provided three medical nexus opinions:

Polovick-- --Facts Dr. Dixon Vet s s treating physician Malignant glioma may well be connected to veteran s s exposure to AO

Dr. Bash Polovick Facts (Cont d) Board Certified radiologist/neuroradiology Glioma more likely than not related to AO exposure Based on review of studies used for IOM report IOM required minimum 95% confidence level to make presumptive list Bash s s analysis of IOM studies & other studies revealed it was more likely than not Long time lapse before emergence of tumor consistent with time lags associated with evolution of this type of tumor

Polovick Facts (Cont d) Dr. Montemarano Board certified radiologist, section chief at Walter Reed Tumor likely due to AO exposure Agreed with Dr. Bash s s statistical analysis Noted 2004 IOM update re: brain tumors and AO

Polovick Facts (Cont d) Dr. Montemarano opinion cont d: Interval between exposure to AO & emergence of tumor consistent with time period expected for induction and growth No other risks factors AO can cause genetic mutations

Polovick Facts (Cont d) VA provided Medical Nexus Exam & Opinion Drs. Mullick and Murakata Opined glioma unlikely due to AO Reasoned IOM s s 2002 study found limited/suggestive evidence of no association to brain tumors New literature didn t t show different data than that used by IOM

Polovick Holding Court held: Absence of illness on presumptive list insufficient to deny SC BVA cannot reject SC for sole reason that there is insufficient statistical evidence to add disease to presumptive list Allowing BVA to do so would result in denial of SC simply because there is no presumptive service connection

Stefl & Polovick Game Changing b/c: Possible for vet to win SC for disability claimed as due to herbicide exposure under a theory of direct service connection Gives advocates ideas re: how to win these claims What does it take to win?

Steft & Polovick: Advocacy Tips 1) Winning SC for disability not on list & claimed as due to AO is difficult 2) Need strong medical opinions 3) Opinions should address: a) IOM report, b) Other medical literature, c) Other risk factors d) Family history e) Timeline re exposure & emergency of disease f) Statistical confidence level

Game Changing Cases re: Congenital Conditions

Quirin v. Shinseki Quirin: 22 Vet.App. 390 (2009) Vet medically acceptable for induction Separation exam indicated impaired vision 20/60 in right & 20/100 in left 1992 VAE vet has congenital optic atrophy BVA cited VAGC that congenital defects more or less stationary in nature & congenital diseases capable of improving or deteriorating

Quirin Facts (Cont d) BVA concluded: Condition was a congenital defect, and There was no additional disability superimposed upon that defect

Quirin Holding BVA failed to apply VAGC opinion properly (see next slide) Evidence of worsening condition must be addressed Presumption of soundness applies b/c entrance exam silent as to eyes BVA improperly assumed vet s s visual acuity as poor at induction as at separation Needed to address whether clear & unmistakable evidince rebuts presumption of aggravation or if increase due to natural progress

Congenital Conditions VA Gen. Coun. Prec. 82-90 Provides guidance to determine if a disability is eligible for compensation Divides conditions between congenital defects and congenital diseases Diseases can get compensation Defects cannot get compensation If a injury or disability is superimposed on a defect, possible to receive compensation for the superimposed injury

Quirin: Advocacy Tips Pay attention to any worsening in service May indicate disability is disease not defect Review VAGC opinion for guidance If VA inconsistent in labeling disability, demand clarification Outline the proper VA inquiry for the claim adjudicator whether condition is static or changing

Quirin: Advocacy Tips Note that in Johnson (L.E.) v. Shinseki, Vet.App., No. 07-0987 0987 (Jan. 21, 2010), the BVA denied vet SC for spina bifida b/c it was a congenital or developmental defect, there was no evidence of superimposed disability, and because it was a congenital defect it could not have been aggravated by service (since defects are not able to worsen or improve) The CAVC affirmed

Quirin is Game Changing b/c: It opens up more possibilities for veterans and advocates Advocates may be able to get a medical opinion as to whether the vet s s condition is a defect or disease process (i.e., capable of worsening or improving) Quirin affirms that advocates and the VA should always look for evidence of worsening in medical records that may indicate whether defect or disease and is relevant to aggravation Quirin emphasizes that advocates should always look

Game Changing Cases re: Proper Evaluation for SC Conditions

Tatum v. Shinseki (part 1) Tatum: 23 Vet.App.. 152 (2009) Vet had a 10% disability evaluation for SC hypothyroidism rated rated under DC 7903 Vet filed a claim for increase The rating criteria under DC 7903:

Tatum v. Shinseki (part 1) 10%-- --fatigability, or; continuous meds required for control; 30%-- --fatigability; constipation, & mental sluggishness; 60%-- --muscular weakness, mental disturbance, & weight gain 100%-- --cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance, bradycardia,, & sleepiness

Tatum v. Shinseki (part 1) C-file had: evidence that vet suffered from fatigability and mental sluggishness (2 or 3 criteria under 30%) evidence that vet suffered from weight gain (1 of 3 criteria listed under 60%) Board decided the veteran must have all three symptoms to get a 30% rating

Tatum v. Shinseki (part 1) Vet argued that under 38 C.F.R. 4.7, all 3 symptoms under 30% rating are not required CAVC agreed 38 C.F.R. 4.7 says: Where there is a question as to which of 2 evaluation shall be applied, higher evaluation will be assigned if disability picture more nearly approximates the criteria required for that rating. Otherwise, lower rating will be assigned

Tatum v. Shinseki (part 1) Also, 38 C.F.R. 4.21: It is not expected... that all cases will show all the findings specified in an applicable Diagnostic Code

Tatum v. Shinseki (part 1) CAVC held: BVA concluded erroneously that all 3 criteria were needed to establish entitlement to 30% rating 38 C.F.R. 4.7 & 4.21 vets do not necessarily need to have all criteria listed for the higher eval in order to receive the higher rating

Tatum v. Shinseki (part 2) Vet served from 5/79 to 11/91 Filed claim for SC for duodenitis w/ duodenal erosion & mild esophagitis (problems w/ gastrointestinal system) In 1992, VA granted SC for a stomach condition diagnosed as mild peptic ulcer disease and awarded 10% rating

Tatum v. Shinseki (part 2) Over time, evidence suggested vet did not suffer from a peptic ulcer anymore Vet did have other diagnoses for GI problems, including GERD, gastritis, esophagitis,, acid peptic disease, and hiatal hernia VA reduced peptic ulcer disease to 0%

Tatum v. Shinseki (part 2) Vet argued that she continued to suffer gastrointestinal problems & VA should have considered changing the DC under which GI disability is rated not reduce to 0% 38 C.F.R. 3.344 when doubt as to change in dx,, retain original dx with new dx in parentheses CAVC reversed reduction & reinstated prior rating