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:
Zach Stolz: Good afternoon and welcome to Facebook Live from Providence, Rhode Island. We are with Chisholm Chisholm & Kilpatrick and today we are going to talk about Court of Appeals for Veterans Claims issues. To my left is Jenna Zellmer, who works on court appeals at Chisholm Chisholm & Kilpatrick and to my right is my partner Robert Chisholm, one of the Chisholms of Chisholm Chisholm & Kilpatrick, who has a wealth of experience both at the Court of Appeals for Veterans Claims, the Court of Appeals for the Federal Circuit, the agency and all throughout the area of veterans law. And we are going to go through a little bit of the history of case law today. Its importance in veterans law. Now, we’re going to focus especially on cases that have come out of the Court of Appeals for Veterans Claims. We have a lot of other information on our website which is cck-law.com. Please visit there to see some of the essays that we have written, to see some of the successes of this firm and others have had at the Court of Appeals for Veterans Claims. Some explanations of some of the most recent case law are on our website and we encourage you to check that out and even check it out while you’re listening to us today on Facebook Live. So, let’s get started. Jenna, what is case law and how does it function in the Veterans Affairs System?
Jenna Zellmer: Thanks, Zach. So, case law is the term we use to refer to law that’s made by either one judge or a panel of judges. And it’s not specific to rehang, any time you see a case come out from the Supreme Court, for example or even lots of lower courts. That’s what we refer to as case law. And then the VA system, the court that reviews VA decisions is the Court of Appeals for Veterans Claims. And so, there are several judges on that court. A lot of judges– a lot of cases at the court are decided by a single judge. The ones that we’re going to talk about today were decided either by three judges or the whole panel of judges.
Zach: And by a whole panel, there are currently nine judges, correct?
Jenna: Yes. And so, when it’s decided by more than one judge, that means the case is precedential, which means that it doesn’t just affect the veteran who is going before the court but it actually applies to all veterans going forward.
Zach: So, let’s talk a little bit about the Court of Appeals for Veterans Claims. It sits in Washington DC.
Zach: As we just talked about, there are nine judges on it and so they decide– or a veteran or the government, the Department of Veterans Affairs decides that they want the court to interpret a statute or regulation, right?
Zach: And the court’s interpretation of the statute or the regulation statute being something from Congress, regulation being something that the Department of Veterans Affairs has written. Whatever they explain has effect on the entire veterans benefits system, right?
Jenna: That’s right.
Zach: And how–
Robert: Well, could I– could I
Zach: Sure, Robert.
Robert: — qualify that?
Zach: Yes, sir
Robert Chisholm: One of the things we’ve learned practicing before the agency is that even though the court makes a decision on a particular issue, it can sometimes take a long time before the decision is implemented at the agency level in the correct way.
Jenna: That’s right.
Zach: That’s an important point.
Robert: That doesn’t mean what the court decides isn’t binding on the agency, it’s just that it can take years before the effects are felt.
Zach: Right. And the other thing about it is, as Jenna was saying, there can be– most cases are decided at the court by a single judge. So, let’s start giving examples of these– of the times that they go and sit in a panel of three or they sit as the entire court of now nine judges. So, the first case that we’re going to talk about today is Gilbert versus Derwinski. And Robert is going to start talking about that one, it is the quintessential case that stands for the proposition that in VA law and for veterans, the tie goes to the runner. And so, let’s talk a little bit about burden of proof. In traditional court systems, Robert, the burden of proof in criminal and civil. And then we’ll work our way into veterans.
Robert: So, in the criminal context, the prosecution is trying to prove beyond a reasonable doubt that the individual committed a crime. And that’s a very high standard of proof.
Zach: And civil?
Robert: And in civil, it’s more likely than not. And it’s the 50– what I call sort of the 51 percent rule. You have to prove, say, Jenna and I got an accident. I said it was Jenna’s fault. Jenna said it was my fault. We go to court, we sue each other. I have to prove to win the case, more likely than not that Jenna was at fault.
Zach: And now you’re a veteran in the veteran system. What’s your burden of proof?
Robert: So, the first time I got involved in veterans law, I learned about this benefit of the doubt doctrine and I said, “How can a veteran ever lose a case?” Because essentially, if the evidence is equal, the veteran is going to win. And the reality is most of the challenge in the veteran’s world from our perspective is getting the right medical evidence to prove the case. And so, if your doctor said, yes and the VA’s doctor says, no, how can you lose? Because it’s always going to be an equipoise. The tie goes to the runner. And well, lo and behold, we can count the ways we’ve lost over the years. Thus, we have all this case law for one thing. But really it’s a very– in this non adversarial system that we’re talking about, it’s one of the best benefits for veterans and shows the solicitude that congress has given veterans.
Zach: So, to back up a little bit and again, we’re talking about the case of Gilbert versus Derwinski which came out in 1990. And it’s still a good law which 1990 is a relatively long time ago for veterans law. The Court of Appeals for Veterans Claims is getting ready to celebrate on it’s 30th year of existence. When we say Gilbert versus Derwinski, just to be clear, Mr. Gilbert was a veteran. Derwinski was the secretary of Veterans Affairs. And so often, almost always, basically in the veterans compensation system you have the individual veteran versus whoever the secretary of Veterans Affairs was at the time the case was decided. So, this is Mr. Gilbert who happened to be a male veteran versus Derwinski, his first name escapes me. He was Secretary Derwinski in 1990 under the George H.W. Bush administration. And the other important thing that came out of this, is Robert was saying there was– it’s– at least as likely as not. So, you’re supposed to have, if it’s equal, if it’s totally in equipoise in the VA system, who wins, Robert?
Robert: The veteran wins every time.
Zach: That’s how it’s supposed to work.
Robert: That’s how it’s supposed to work. The reality is that it isn’t always applied that way. The language you’ve used is really important and I want to emphasize that the standard– so, if we want a doctor to give a medical opinion, we want a doctor to say it’s at least as likely as not that the veteran’s condition was related to service, caused by service or coincident with service. We don’t have to get the doctor to say, it’s more likely than not. In all of those civil cases where we’ve practiced over the years, that’s the burden. And though some doctors might not be willing to say it’s more likely than not, the doctor– it’s easier for the doctor to say it’s at least as likely as not. I think we’ve got a question over here.
Zach: We do have a question from Michael. Is it a good idea to say previously heard cases in order to make veterans cases stronger down the line? Thanks so much. I think it’s time for Jenna to answer the question.
Jenna: Thanks, Michael. Yeah, it’s super helpful in order to kind of provide VA some guidance because as Robert mentioned, sometimes there is a delay between what the court does and what VA implements. And so, in order to kind of do VA’s job for it, you can help VA along and educate VA to say, “Hey, the court has said that you’re supposed to be looking at my case a certain way and here’s the court case.” I think a lot of times veterans aren’t aware of all the cases that have come down from the court. But our website actually does a really good job of summarizing a lot of cases that we’ve gotten, both single judge and precedential decisions. And even though those single judge decisions aren’t binding on VA, they can definitely be helpful and persuasive. If they have a similar fact pattern to your specific case, it wouldn’t hurt to let the VA know that this is where the court is going.
Zach: And so, this is an important point about how practically this works, too, because citing a case at the agency level can be very helpful. But as Robert said, sometimes it can take a couple of years before something that the Court of Appeals for Veterans Claims announces, works it’s way through a really large nationwide and in fact international in some cases, system. And so, as we’re talking about the way the court practice kind of works just real quick. When you talk about citing these cases, when a lawyer– let’s use a CCK attorney or attorney practitioner that works– that is licensed at the court. How does that kind of work just real quick at the court? We write an opening brief.
Zach: And so, that’s our opportunity to cite these cases.
Jenna: Yeah. And I think it’s helpful to kind of go back a step further. You mentioned that the court is relatively young. It’s only celebrating its 30th anniversary. And so, up until 30 years ago, the VA, the final decision was the Board of Veterans Appeals decision. And there was no other recourse for veterans to ask a higher power whether or not the VA had made the right decision. And so then, finally, the court came around. And so, now we have this separate authority that’s not a part of VA that we can tell that the VA made the wrong decision or the VA made some legal error.
Zach: Right. The court is totally independent of VA.
Zach: Which is an important part in–
Jenna: And so, when we appeal a board decision and we can only appeal final board decisions to the court, we start off– we have telephone conferences with VA and then eventually we will write briefs. Those briefs are kind of setting out the history of veteran’s claim, the reasons why we think the board made a legal error and then we also cite cases, previous cases and VA’s own regulations to explain and support our theory of why the board made a legal error.
Zach: And so, let’s talk about another case.
Zach: Ingram versus Nicholson is the second case on our list today. Mr. Ingram, the veteran. Nicholson being the Secretary of Veterans Affairs. This case is from 2007 and it’s a major case, a case that we cite all the time in our pleadings to the court here. And I think it’s Robert’s turn. So, this has to do with how long claims can be pending and what constitutes a claim and what is– let’s start with an informal claim for veterans benefits.
Robert: Before I answer that question I’d like to go back–
Zach: I knew that was going to happen.
Robert: I’d like to go back to what– and piggyback on what Jenna was just saying about citing cases. There’s two levels of adjudication before the agency and I’m assuming that most of the people watching us in Facebook Live have claims pending before the agency. If you cite cases to the regional office as a practical matter, they’re not going to pay attention to them. But when the case goes to the Board of Veterans Appeals, I think it’s really important to use case citations if that case can help your specific vet case. So, I just wanted to make that point.
Zach: Good point.
Robert: So, Ingram dealt with this concept of a pending claim. And in the VA system, a decision becomes final that is it’s over when the VA issues a decision on the claim and the veteran does not file a notice of disagreement within a year or the veteran files a notice of disagreement. And then the VA issues a statement of the case. But the veteran then does not file what’s called the VA 9 appeal, substantive appeal within 60 days. Then, the decision becomes final. Or if the board issues decision and the veteran doesn’t appeal that to the Court of Appeals for Veterans Claims, the decision becomes final. What a pending claim is, is when the veteran makes a claim and either the VA does not adjudicate it, that is they don’t make a decision on it or the veteran files a notice of disagreement. And lo and behold, the VA never does the next thing it’s supposed to which is issue a statement of the case. Or the VA issues a statement of the case, veteran files of VA 9 and the case never get certified to the Board of Veterans Appeals. Those issues remained pending. And what the Ingram case does is talk about how long a claim can remain pending. So, over the years in our experience, we have found claims pending from the 1950’s, from the 1960’s, from the 1970’s. It is remarkable how often this happens. In the old days, there were paper files. And paper files got lost. Now, everything is computerized and by everything, I mean all the claims files, I believe, a 100 percent are now digitized. So, claims files don’t get lost the way they did in the old days and they had shuffled around the offices. So, there could have been in many of these old cases, pending claims. And all Ingram does is explain what a pending claim is. In informal claim is a veteran asking for a benefit either verbally or in writing but not on the– what is it the 52–
Robert: 526 form. The VA 526 form. That’s a formal claim on the form that the VA likes to see them on. Now, as of– I’m not sure what year– all claims need to be formal claims and pending claims are no more after that date. But if a veteran made a verbal claim and reduced it to writing in some format, they could still be pending claims before that particular date. Now, I want to say it was like 2012, 2013, somewhere in that [inaudible].
Robert: 2012. Okay. So, how do you find a pending client? What do we do, Jenna, when we get the file?
Zach: That’s a good question for Jenna.
Jenna: So, there are a couple different ways. Whenever we get a file, we look through that entire file. We get files electronically and so they can be several thousands of pages long and we go through every single page. And we know what the page is. So, if there is a handwritten statement from the veteran, we look at that handwritten statement and figure out if there’s anything in that statement that could potentially have been asking for a benefit. It’s always super helpful also just to talk to the veteran because a lot of times, we will think the claim goes back to a certain date but the veteran will say, “No, I actually filed a claim 10 years ago and I never heard anything back from it.” And so, it’s always important to just talk to the veteran and kind of figure out if there’s been a mailing issue or if VA just kind of dropped the ball on something.
Robert: And you make a really good point. I mean I was reviewing a file just this week that was 14,000 pages long. And that’s how big these files can be.
Zach: Well, let’s move on to the next case which we talked a little bit earlier or Robert talked a little bit earlier about the importance in the context of the tie goes to the runner and that Gilbert case that we talked about the importance of medical evidence and seeing as how these are claims for disability compensation. Obviously, medical evidence is the most important evidence. That tends to be the most important evidence, 99 percent of the time in these cases. And so there are two cases that we’d like to talk about that are commonly cited at the court and at the board levels and their staff will be Nicholson and [inaudible] Rodriguez being at the peak, the secretary changed their staff from 2007 and it was Rodriguez for 2008. They are kind of companion cases. The name was Rodriguez, [inaudible] and Bill Dochovit. And so, let’s talk a little bit about it. Jenna.
Jenna: Yeah. So, both of these cases dealt with whether or not a medical examination was adequate. And basically what that means is that when the VA is getting a medical opinion about whether or not a veteran’s disability is at least as likely as not related to service, the exam needs to have enough information in it to allow the board to cross-examine it and determine whether or not the examiner had the correct facts before him or her at the time. Whether or not the examiner was basing his opinion, his or her opinion on relevant medical science. And so, even though the examiner doesn’t have to provide pages and pages of explanation for why he or she came to a particular conclusion that has to be more than just data and then a conclusion.
Robert: So, the thing that strikes me about Stefol was there were multiple theories under which a veteran could potentially win their claim. And let’s take the case in Stefol was an Agent Orange case and the medical doctors said the condition was not related to service because the condition is not entitled to presumptive service connection. So, when we’re talking about Agent Orange, there are a number of conditions that if you set foot on the landmass of Vietnam and let’s take lung cancer, you’re presumed to have been exposed, right? But to say that someone that might have esophageal cancer which is not on the presumptive list and just write in an opinion– well, it’s not entitled because it’s not presumptive. That’s not enough information for the examiner. And so, they have to provide more analysis. Naturally–
Zach: And so, what does the court do about it? What’s the remedy from the Court of Appeals for Veterans Claims. Let’s say that they– so, they agree and [inaudible] and [inaudible] that the examination was not adequate. It wasn’t well-supported. It wasn’t explained. So, what they do about it?
Robert: So, what the court will do is remand it with an instruction to the board to get another opinion that answers the question or to go back to the same doctor and have the doctor answer the question.
Zach: So, an important point, the court didn’t just award any benefits here. It seldom does. What the court tends to do is it ensures that the board and the regional offices comply with the law. And so, what it will do is it will tell the board that it made a legal error or a factual error and it will say correct it or else.
Zach: Any or else is if you don’t correct it, if you’re going to have to come back to court, maybe then the court will award the benefits. Hopefully, that’s not necessary. Hopefully, it gets sent back to the board with this instruction which is usually very helpful for the veteran and the board will correct itself and hopefully that does result in an award for the veteran. But it is important we do– just in all honesty, I’ve been doing this for a long time and oftentimes veterans can get very frustrated that their case goes all the way to court and they expect to be heard in court and they expect that that’s going to result in a positive monetary change for them. That seldom happens but it doesn’t mean it’s not worth going to court. Quite the contrary, it’s extraordinarily important to go to court because it is the way that you get an order from outside of the VA system to the VA that it needs to correct it’s actions.
Jenna: And I also think building off that the other important reason why it’s good to go to court is that it relates back to what Robert was talking about, about pending claims. So, if you don’t go to court, that board decision becomes final. And all of those years that you’ve been waiting for your claim to be decided and eventually awarded, you lose those [inaudible] years. And so–
Zach: That will change in February 2019. So, stay tuned for our ongoing series of appeals reform–
Robert: Yes. That is true.
Zach: — with Chisholm Chisholm & Kilpatrick, which is at www.cck-law.com. It has spent a lot of time working on and will continue to spend hours and hours and hours and most of our lives, I think, working on appeals reform. That’s a separate Facebook Live for a separate day. There’s one already that I participated in two weeks ago. There will be dozens more coming. But in–
Jenna: But as of now, yeah, it’s good to keep your claim alive by going to court.
Robert: So, I’d like to offer sort of a practical tip about medical opinions here. One of the things that veterans will do is get an opinion from their own doctor, hopefully, to support the claim. But if there’s an opinion from a doctor that you see in the decision, you’re entitled– so, if you get a rating decision that says, “VA exam found the condition not related to service,” you should ask for a copy of that opinion. You should also ask for a copy of that doctor’s resumé or curriculum vitae is what they call, it’s CV. And then if you can, try and get your own opinion from a doctor and put that opinion in, hopefully, will help your claim. Because if you just rely on the negative evidence from the VA examiner, chances are you’re not going to win your claim. But if you put your own evidence in and it results in equipoise, that tie goes to the runner, it’s very important to make sure you have positive medical evidence in the record.
Zach: Alright. We’re going to move to a new case.
Zach: Cantrell Vishoken from 2017. This was a case that Chisholm Chisholm & Kilpatrick worked on. It went to the court. An attorney from Chisholm Chisholm & Kilpatrick went to an oral– participated in the oral argument which is to say, she went to Washington DC and was given a half an hour to explain Mr. Cantrell’s point of view. That decision came out positively for Mr. Cantrell. And let’s talk about it a little bit. Jenna.
Jenna: Okay. So, Cantrell dealt with defining employment in a protected work environment. Just to back up a little bit, veterans whose service connected disabilities prevent them from working, the term of our is prevent them from obtaining or maintaining employment in a substantially gainful occupation. Those veterans are entitled to a 100 percent rating. And so, Mr. Cantrell was seeking a 100 percent rating. The small issue was that he was technically working. And so, even though he was working and the issue was that he– the work that he was participating in was protected and protected means that it wasn’t substantially gainful. It was instead a position that his employers had really accommodated him and allowed him to take multiple breaks and allowed him to kind of work around his own schedule. And the theory was that if he had not had been employed by that employer, he wouldn’t have been able to get a job anywhere else. And so, VA’s position was that, while he was working. And so, that’s kind of the end of the story. And so, one of the attorneys in the office, Bob Kirk, kind of went to court and–
Zach: Partner Bob Kirk. Bob Kirk.
Jenna: Partner Bob Kirk went to court and kind of set VA straight and said, “We need to define what protected work environment means in the term– in the context of TDIU.” And so, the court agreed with us and said the board and VA need to look at the degree of accommodation of the veteran versus receiving from his or her employer and to look at the combined impact of all the veteran service connected disabilities. And so, even though a veteran may have stopped working or may be working but is– has some interference from one service connected disability, there are probably also other impairments from his other service connected disabilities and you can’t just look at one disability in a vacuum because that’s not how we live our lives. And so, that’s what the court agreed.
Zach: And Robert what do you have to add about Cantrell?
Robert: And although we won the case for Mr. Cantrell, I would note that the court declined to define the term protected work environment and to be honest with you, that’s frustrating because they’re saying that VA should define it. Well, this regulation has been in effect at least as long as the court has been around and the VA has not defined it. And if I could offer my suggestion that the court defined the term the next opportunity it has, I think that would be helpful because I don’t think the VA is going to do it, having not done it in the last 30 years.
Zach: Until they do, people at Chisholm Chisholm & Kilpatrick have a lot of experience with these cases and can offer helpful suggestions to the Department of Veterans Affairs about what definitions it should be using. And so, while it may be frustrating that there is no set definition, perhaps it is a good thing for some of our veteran clients because it allows us a lot of flexibility to talk with VA about what they should do and what sheltered employment means to that individual veteran. So, glass half full. It does give us flexibility to help our clients.
Robert: And Zach I don’t think we made this clear at the beginning of the presentation but if people have questions, please feel free to–
Zach: Sorry. That’s my fault. Please feel free to ask questions.
Robert: Ask questions either now during the presentation or later on when you’re looking at it and we will respond to the best of our ability.
Zach: We already got one and it was a good one.
Jenna: It was a good one.
Zach: All right. Let’s talk about the last case of today. This is part 1, by the way, of our series of important cases. Part 2 is going to be next week where we’re going to talk about five more cases and I’m sure there will be a part three and a part four to follow at some point. But for right now, we’re on part 1. And our last case of today’s session is going to be Emerson vs. McDonald. It is from 2016. It has to do with 38 CFR 3.156 E, which is the regulation. And Robert Chisholm is going to talk about it.
Robert: So, if I had to pick a favorite regulation and there are thousands of them.
Zach: Oh, and so, there are so many.
Robert: And I can be a little nerdy about this. This is probably one of my top five, if not the top one.
Zach: Top five reg.
Robert: Top five regs. This is a very important regulation. So, before when I was talking about the Ingram case, we were talking about finality. And if a decision becomes final at the agency for those three reasons I laid out, that’s not necessarily the end of the case because under the law as it exists today and again it’s going to be changing very soon in February 2019.
Zach: Stay tuned.
Robert: A veteran has the right or a claimant has the right to reopen the claim after it’s final with what’s called new and material evidence. So, for example, if you lost your claim because the VA doctor said the condition wasn’t related to service, the veteran can get a new medical opinion saying that the condition is related to service and more likely than not, that would be new and material evidence to reopen a claim and the VA would have to make a new decision. But when a claim is reopened with new and material evidence, generally speaking, the effective date that the VA is going to assign is the date you requested to reopen the claim. But 3.156 C is an exception to that finality. The start date of the benefits could go back to the date of your original claim and here’s why. The regulation provides that if you add service records that weren’t part of the original claim, the VA can reopen the claim and reconsider the claim and examine the evidence back to the date of the original claim. So, let’s give a concrete example of this. Let’s say it’s June 1980 and a veteran files a claim for post-traumatic stress disorder. He has a diagnosis of post-traumatic stress disorder. But he’s unable to produce service records to show that he was in combat in Vietnam. And for some reason those records, the VA is not able to obtain them or did not obtain them in 1980. Fast forward to 2016, the veteran requests and receives a copy of all his service records that show in fact that he was in combat in Vietnam. He still has the diagnosis of PTSD. The veteran submits all of that to the VA, reopens that 1980 claim. Assuming that veteran has had PTSD from 2016 all the way back to 1980, guess what? The effective date the VA is supposed to assign goes all the way back to 1980. And that is essentially what Emerson is about. It’s about the addition of service records after finally adjudicate a claim to try and get the claim to go back to the earlier start date. We have used this in hundreds of cases to help veterans get all the benefits they are entitled to. We were scheduled to go to oral argument just last week on a case involving 3.156 C that we were able to resolve and settle before the oral argument. It was another case involving this specific regulation. So, when I say this is one of my favorite regulations, it’s because it really helps veterans get the benefits they are entitled to from the original date of the claim. And it’s a very important regulation.
Zach: That does it for the cases today. How about we have some parting thoughts from Jenna Zellmer about the importance of case law. Not just to attorneys and veteran service officers and veteran service organizations, but to veterans themselves.
Jenna: Yeah. I mean I think that Michael’s question earlier really hits the nail on the head. The more veterans can educate themselves on this case law and what the court is about and the fact that there is this higher authority that’s governing what VA does or is hopefully, VA is following those orders. The more that veterans can help themselves throughout the process. And so, we’re always here. Veteran service organizations are always here. But when veterans can understand the law and kind of understand why the board does specific things and why the court does specific things, it’s helpful for everyone and it’ll just support your claim and hopefully get it resolved a lot faster.
Robert: Really, one of the things we tried to do once the case goes back to the agency is use these cases in Cantrell, Emerson, Stefol, all these cases, Nieves, Rodriguez, on dealing with the examinations, we cite to those cases to the board. As they said, we don’t, as a practical matter do that. The regional office, the reality is they’re not going to listen. But at the board, you want to present all that and make your best case to win before the Board of Veterans Appeals. So, these are very important cases. And that’s the only piece I’d add.
Zach: And what I can add is to thank everyone for tuning into Facebook Live today. We are Chisholm Chisholm & Kilpatrick. This is Robert Chisholm, this is Jenna Zellmer. I’m Zach Stolz. Thank you very much for tuning in. We will be doing this again next week with a fresh round of cases to discuss. And we hope that you all tune in then. Thank you very much.