CASE STUDIES THAT (SHOULD) MATTER TO THE CVSO

1. NACVSO Annual Training ConferenceGrand Rapids, MI – June 12, 2014 Presenter: Katrina J. Eagle, Veterans Law Attorney 10755 Scripps Poway Parkway; no. 353San Diego, CA 92131858.549.1561 katrina@vetsjustice.com CASE STUDIES THAT (SHOULD) MATTERTO THE CVSO

2. After Monday and Tuesday, even the calendar says…WTF!! -- Anonymous

3. The Concepts: Presumption of Soundness Presumption of AO Exposure Outside of VN Benefit of the Doubt Individual Unemployability Last but not least… REPRESENTING THE MILITARY VETERAN

4. Presumption of Soundness: Which of 3 basic criteria for service connection does POS relate to? 38 U.S.C. section 1111 says: REPRESENTING THE MILITARY VETERAN

5. Presumption of Soundness: 38 U.S.C. section 1111 says: Every veteran is presumed to have been in sound condition when examined, accepted, and enrolled in military service, except as to defects, infirmities, or disorders noted at time of exam. REPRESENTING THE MILITARY VETERAN

6. Presumption of Soundness: Which of 3 basic criteria does POS relate to? 2nd prong, i.e., “evidence of in-service occurrence or aggravation of disease or injury” And, POS does not relieve requirements for evidence of other criteria REPRESENTING THE MILITARY VETERAN

7. Presumption of Soundness: What about when evidence shows that in-service injury EPTS? How does POS potentially help veteran? Because once POS attaches… REPRESENTING THE MILITARY VETERAN

8. Presumption of Soundness: Once a veteran is presumed sound, it can only be rebutted if VA Secretary produces clear and convincing evidence of 2 things: Injury pre-existed service; AND Injury NOT aggravated by service REPRESENTING THE MILITARY VETERAN

9. Presumption of Soundness: To be clear, it is NOT the veteran’s job to produce evidence that the pre-existing condition was aggravated; rather… REPRESENTING THE MILITARY VETERAN

10. Presumption of Soundness: It is the Secretary’s BURDEN to show by CLEAR AND UNMISTAKABLE EVIDENCE it was not. Horn v. Shinseki, 25 Vet. App. 231 (2012) REPRESENTING THE MILITARY VETERAN

11. Presumption of Soundness: To be even clearer, when an injury has been shown as pre-existing service, it will be considered to have been aggravated in service unless VA establishes by clear and unmistakable evidence that there was no increase in disability or that the increase was due to natural progression. REPRESENTING THE MILITARY VETERAN

12. Presumption of Soundness: Veterans Court in Horn held: “VA may not rest on notion that the record contains insufficient evidence of aggravation” and “Secretary’s failure to produce C&UE of lack of aggravation entitles claimant to a finding of in-service aggravation of pre-existing condition.” REPRESENTING THE MILITARY VETERAN

13. Presumption of Soundness: Veterans Court in Horn rejected the Board’s reliance on the absence of evidence of aggravation because “in the POS context, such reliance effects an impermissible burden shift” because it “requires the Veteran to generate postservice medical evidence to prove the aggravation that is to be presumed.” REPRESENTING THE MILITARY VETERAN

14. Presumptions (TWO!) Applicable to Claims for AO-Related Medical Conditions: Presumption of Exposure to Herbicides Presumption of Service Connection for Diseases Associated With Herbicide Exposure REPRESENTING THE MILITARY VETERAN

15. Presumption of Exposure to Herbicides: “Boots to ground” in VN b/n 1.9.1962 and 5.7.1975 38 CFR sect 3.307(a)(6)(iii) VN = landmass, inland waters, and certain ships REPRESENTING THE MILITARY VETERAN

16. Presumption of Exposure to Herbicides: Which of 3 basic criteria for service connection does it relate to? 2nd prong: relieves veteran of presenting evidence of actual incurrence or aggravation of disease REPRESENTING THE MILITARY VETERAN

17. Presumption of Exposure to Herbicides: What about Veterans who do not qualify for presumption of herbicide exposure? Present evidence of actual, direct exposure REPRESENTING THE MILITARY VETERAN

18. Presumption of Service Connection: Presumption is “not the exclusive means of proof” I.e., presumptive service connection vs. direct service connection Combee v Brown, 34 F.3d 1039 (Fed. Cir. 1994) REPRESENTING THE MILITARY VETERAN

19. Presumption of Exposure to Herbicides: Once a Veteran establishes exposure to herbicides – presumed or actual – then 2nd PRESUMPTION may apply… REPRESENTING THE MILITARY VETERAN

20. Presumption of Exposure to Herbicides: Presumption of service connection for diseases associated with AO exposure applies to BOTH: Veterans presumed AO exposed Veterans who show actual AO exposure REPRESENTING THE MILITARY VETERAN

21. Presumption of Exposure to Herbicides: If Veteran exposed AND suffers AO-presumed condition, then presumed service connected unless VA can rebut. 38 CFR sect. 3.307(a)(6) 38 CFR sect. 3.309(e) REPRESENTING THE MILITARY VETERAN

22. Presumption of Service Connection: Which of 3 basic criteria for service connection does it relate to? 3rd prong: relieves veteran of presenting evidence of medical nexus b/n in-service AO exposure and specified diseases or conditions REPRESENTING THE MILITARY VETERAN

23. Benefit of the Doubt: • What it is NOT • What it is…  

24. 38 USC section 5107(b): • “When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.”

25. 38 CFR section 3.102: • “When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.”

26. Wise v. Shinseki, 26 Vet. App. 517: • Mr. George W. Wise, late-veteran • 100% service-connected PTSD since 2000 • passed in Nov 2008, arrhythmia due to arteriosclerotic cardiovascular disease • Ouida Wise, widow • files for DIC in Dec 2008 • Medical opinion by treating doc and supporting articles • BVA hearing, 3 more articles, 2nd MNO • BVA secures “expert opinion”

27. Benefit of the Doubt: • Wise v. Shinseki: “Congress has not mandated that a medical principle needed to have reached the level of scientific consensus to support a claim for VA benefits. Instead, Congress has authorized VA to resolve a scientific or medical question in the claimant’s favor so long as evidence for and against that question is in “approximate balance.” Imposing a higher standard of proof would be counter to the benefit of the doubt rule.” • “approximate balance” = tie goes to the veteran

28. Individual Unemployability: • When must IU be considered? • Proper Assessment of Evidence of IU

29. When is VA required to consider entitlement to IU? Rice v. Shinseki, 22 Vet. App. 447 (2009): “A request for IU is best understood as part of an initial claim for VA disability compensation . . . or as a particular type of claim for increased compensation.” REPRESENTING THE MILITARY VETERAN

30. Roberson v. Principi(251 F.3d 1378) (Fed. Cir. 2011): Once a veteran submits evidence of a medical disability and makes a claim for the highest rating possible, and submits evidence of unemployability, the ‘identify the benefit sought’ requirement is met and VA must consider IU. “An award of IU does not require a showing of 100% unemployability.” REPRESENTING THE MILITARY VETERAN

31. When is VA required to consider entitlement to IU? Record must include “cogent evidence” of unemployability 1. Statements submitted to VA 2. Responses to VA examiner 3. VA Form 21-8940 REPRESENTING THE MILITARY VETERAN

32. How VA is to consider IU: “Entitlement to IU is based on an individual’s particular circumstances.”Rice at 447 VA must take into account the veteran’s: Eduction Training Work history (Hatlestad (1991)) REPRESENTING THE MILITARY VETERAN

33. How VA is to consider IU: “To merely allude to educational and occupational history, attempt in no way to relate these factors to the disabilities of the appellant, and conclude that some form of employment is available, comes very close to placing upon the appellant the burden of showing he can’t get work.” (Gleicher (1991)) REPRESENTING THE MILITARY VETERAN

34. How VA is to consider IU: “VA may not reject a claim for TDIU without producing evidence, as distinguished from mere conjecture, that the veteran can perform work that would produce sufficient income to be other than marginal.” (Beaty v. Brown (1994)) REPRESENTING THE MILITARY VETERAN

35. How VA is to consider IU: Marginal employment ≠ substantially gainful employment (38 CFR sect 4.16(a)) Requiring a veteran to prove that he is 100% unemployable is different than requiring the veteran to prove that he cannot maintain ‘substantial gainful employment.’”Roberson (Fed Cir 2011) NO “Total occupational impairment”!! REPRESENTING THE MILITARY VETERAN

36. Miscellaneous Final Points: • Lay evidence can support a claim/appeal! • Jandreau v. Nicholson: “Lay E can be competent and sufficient to establish a Dx of a condition when lay testimony describes symptoms that are observed at the time they were experienced, and that later support a medical diagnosis.” • DeLisio v. Shinseki (2011): “Entitlement to benefits does not arise with medical Dx, but with manifestations of the condition and filing of claim.”

37. Miscellaneous Final Points: • Refiling vs. Appeal to BVA (do you have client’s informed consent??) • If use new NOD form, then “full monty” • “Reconsideration” vs NOD • Proper rules for reducing veteran’s disability rating

38. Assisting Veterans is a Team Effort: 1. CVSO’s are not magicians; neither are Veterans Law Attorneys 2. Utilize Your Strengths; Consult With Colleagues When Necessary 3. How can knowledgeable attorneys help CVSO’s and their clients? REPRESENTING THE MILITARY VETERAN

40. Katrina’s Contact Information: 10755 Scripps Poway Parkway; No. 353 San Diego, CA 92131 858.549.1561 (ph) / 858.549.1167 (fax) katrina@vetsjustice.com REPRESENTING THE MILITARY VETERAN