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10 Court of Appeals for Veterans Claims Cases All Veterans Should Know: Part 1

In part one of our series “10 Court of Appeals for Veterans Claims (CAVC) Cases All Veterans Should Know”, founding partner Robert Chisholm, partner Zachary Stolz, and attorney Jenna Zellmer discuss five rulings from the Court of Appeals for Veterans Claims and how they have changed the way veterans’ claims are adjudicated by VA.


Case law is the term used to refer to laws that are established by a judge, or panel of judges. Case law is not specific to VA—it can be established by higher courts in other realms of the law, such as at the Supreme Court or the Federal Circuit. In the Veterans Affairs system, the Court of Appeals for Veterans Claims reviews decisions issued by VA and can establish case law.

The Court of Appeals for Veterans Claims is comprised of nine judges. Court of Appeals for Veterans Claims cases are decided by a single judge, a portion of the judges panel, or the entire panel. The cases discussed in today’s segment were decided by multiple judges. When more than one judge is involved in issuing a decision, that case becomes precedential. Precedential decisions apply to all veterans’ cases going forward within the VA system.

Gilbert v. Derwinski

Gilbert v. Derwinski was a precedential CAVC case that established the burden of proof veterans must meet in order to prove their case for VA disability compensation. This burden of proof is much easier to meet than those of criminal or civil courts.

In the criminal context, the burden of proof is “beyond a reasonable doubt,” meaning that the prosecution must prove that an individual committed a crime beyond a reasonable doubt; this is a very high standard of proof. Within the civil courts, the standard of proof is “more likely than not,” meaning that the parties involved must prove that the event most likely occurred as a result of the other individual’s actions.

Veterans appealing their denial of benefits within the Department of Veterans Affairs face a much more lenient burden of proof under the Benefit of the Doubt Doctrine. This doctrine states that if there is an equal balance of favorable and unfavorable evidence in a veteran’s claim, the ruling should be in favor of the veteran. VA’s evidentiary standard is “at least as likely as not”, meaning that the veteran must prove that his or her condition was at least as likely as not caused by military service.

Ingram v. Nicholson

Ingram v. Nicholson addressed the issue of pending claims and how long a claim can be pending prior to it becoming final. To properly explain this, let’s provide some background knowledge regarding finality of VA decisions pending claims, and the situations in which these occur.

In the VA system, a decision becomes final when veterans:

  • Do not file a Notice of Disagreement following a rating decision within a year of its issuance;
  • Fail to submit a VA Form 9 in response to a Statement of the Case within 60 days; or
  • Do not appeal a Board decision to the Court of Appeals for Veterans Claims within 120 days of its issuance.

A pending claim occurs when:

  • A veteran submits a claim and VA does not adjudicate, or make a decision, on it;
  • A veteran files a Notice of Disagreement and VA fails to issue a Statement of the Case; or
  • VA does not certify a veteran’s case to the Board following the submission of a VA Form 9.

This situation occurs quite frequently, especially in regards to informal claims. While VA no longer allows veterans to submit a claim on anything other than VA Form 21-526, veterans were able to submit claims via informal written statements prior to 2015. Previously unaddressed pending claims may be found in a veteran’s C-File. Any previously written correspondence from the veteran asking for a benefit may be considered an informal claim; if this is the case, the effective date of that claim could date back to when the informal claim was received by VA.

The outcome of this case essentially states that a veteran’s claim remains pending until a rating decision is issued. To quote the decision: “A claim remains pending—even for years—if the Secretary fails to act on a claim before him.”

Stefl v. Nicholson and Nieves-Rodriguez v. Peake

Both of these cases addressed adequacy of VA examinations, also called Compensation and Pension Examinations, and the need for a reasoned explanation detailing the findings of such examination. In other words, the exam’s findings need to contain enough information for the Board to cross-examine it and determine whether the examiner knew the correct facts of the case at the time it was conducted, and if the results were based off of currently accepted medical science.

Essentially, this case changed the way C&P examiners report their findings in these exams. Previously, these reports may have only contained conclusions. Now, C&P examiners must reasonably explain the connection between their conclusion and supporting data: “Without a medical opinion that clearly addresses the relevant facts and medical science, the Board is left to rely on its own lay opinion, which it is forbidden from doing.”

Cantrell v. Shulkin

Cantrell v. Shulkin was a case Chisholm Chisholm & Kilpatrick successfully argued before the Court of Appeals for Veterans Claims.

The issue at hand here was that Mr. Cantrell was working while seeking Total Disability based on Individual Unemployability, a benefit equivalent to a 100 percent VA rating reserved for veterans who are left unable to secure or maintain substantially gainful employment due to a service-connected disability; however, the work he was doing was protected. A protected work environment is one in which an employer makes special accommodations for the veteran that enables him or her to work there. These accommodations would be considered unreasonable for most jobs. According to VA’s regulations, a job is not substantially gainful if it is in a protected work environment.

While the court did not provide a definition for what a protected work environment is, it conceded that VA must consider the degree of accommodation the veteran is receiving from his or her employer and look at the combined impact of all of the veteran’s service-connected disabilities in determining whether referral for extraschedular consideration is warranted.

Emerson v. McDonald

Emerson v. McDonald centered on effective dates when reopening a VA claim. Veterans are able to reopen VA claims if new and material evidence arises. Usually, these reopened claims’ effective date will be that of when new and material evidence is submitted, with one exception outlined in 38 § CFR 3.156(c): this states that the effective date for a claim reopened with service records not originally considered in the claim can go back to the date of the initial claim.

For example, let’s say a Vietnam combat veteran receives a diagnosis of Post-Traumatic Stress Disorder in 1980 and promptly files a VA disability claim, however, VA did not obtain service records proving that he was in combat in Vietnam. Now in 2018, the veteran requests a copy of his service records that do, in fact, show he was a Vietnam combat veteran. If the veteran still has a diagnosis of PTSD, he may submit these service records to reopen his PTSD VA claim with an effective date in 1980.

Read the original CAVC decisions here:

Gilbert v. Derwinski

Ingram v. Nicholson

Stefl v. Nicholson

Nieves-Rodriguez v. Peake

Cantrell v. Shulkin

Emerson v. McDonald

Category: Veterans Law


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