VA Caselaw Update Fall 2022 Part 1
This is an important decision about the right for the VA to hold a Board of Veterans’ Appeals (BVA) hearing, even if the veteran cannot attend it.
Background:
At the Board hearing, the veteran’s counsel attended with an expert witness in order to testify about the veteran’s PTSD rating and eligibility for individual unemployability. However, the veteran was unable to attend the hearing due to poor health. The Board held that by not attending the hearing or showing good cause for missing the hearing, the veteran was not entitled to a hearing.
The case went up to the Court of Appeals for the Federal Circuit (CAFC). The CAFC found that as a matter of law, for a virtual Board hearing, a veteran represented by an agent or counsel need not be present at his hearing in order to present witness testimony.
The case was then remanded to the Court of Appeals for Veterans Claims (CAVC), which is the case discussed here. The CAVC held that the Board cannot specifically require a veteran’s attendance in order for the veteran to elicit testimony from witnesses before the Board.
What This Means for You:
If you have an agent or counsel representing you on your claim, and you are unable to attend your Board hearing, the Board is required to still hold your hearing for your representative to elicit third-party testimony.
Things to Look Out for:
The CAFC remand may not cover in-person hearings as opposed to virtual hearings. So, a veteran who requests an in-person hearing before the Board should still try to attend that hearing if possible.
It also may be that the right to have the hearing without attendance may not apply to you if you are not too disabled to attend the hearing.
Finally, the CAVC opinion leaves open the possibility that the Board could deny a hearing to an absent veteran, if his representative presents written testimony at the hearing, rather than live testimony.
Other Considerations:
You do not need a Board hearing in order to get evidence before the Board. After the Appeals Modernization Act went into effect in 2019, there are now three Board appeal options: a direct review without evidence submission; evidence submission without a hearing, where you have 90 days from the time of your appeal to submit evidence; or a hearing request, which allows the Board to consider evidence submitted at the time of the appeal, evidence presented at the hearing, and evidence submitted within 90 days after the hearing. Requesting a Board hearing will also mean that it will take the Board a longer time to decide your case.
Stover v. McDonough, 35 Vet App. 394 (2022)
This case is about whether the Board of Veterans’ Appeals (BVA) has to consider the VA Manual when deciding on your claim.
Background:
The Court of Appeals for Veterans Claims held that the Board is bound to the VA Manual’s provision regarding Thailand herbicide exposure. The Board had adopted the Manual’s provision as the rule of decision in a case. Generally, the Board is not bound by department manuals, unless the Board takes action that makes the manual binding on a particular case. While not specifically referencing the manual, the Board had adopted the manual’s language regarding service “near the perimeter” of a Thailand Air Base, when it cited language from the Manual and then applied it.
What This Means for You:
If the Board does not rule in your favor, you may have an appealable claim, if they used language from the VA’s M21-1 Manual to decide your claim.
Things to Look Out for:
Even if a provision in the VA’s M21-1 Manual is helpful to your case, the Board is not bound by the Manual, unless it specifically adopts provisions from the Manual in your case. The Board hears cases anew, without considering the Regional Office’s prior findings.
Another concern is that if the Board hears your case more than once, which is common, the Board is not necessarily bound to its prior Manual adoptions in your case. The Board could simply find that it was in error when it previously used Manual language to decide your case.
A final concern is if you had appealed your case under for Regional Office Higher Level Review consideration (with a 0996 form) or you appealed to the Board under the direct review lane.
Other Considerations:
This case is likely no longer relevant specifically to Thailand Agent Orange cases, since the PACT Act went into effect on August 11, 2022. Now, Vietnam Era veterans stationed in Thailand at U.S. or Thai military bases are entitled to the presumption that they were exposed to Agent Orange while there, whether they had perimeter duties at those bases or not.
If you had Thailand service and were previously denied your claim and it is no longer open on appeal, you should reopen your claim as soon as possible.
Additionally, the CAVC did not discuss whether the Thailand perimeter rule will work as a conceded rule of evidence in cases where the Board has not adopted the M21-1 Manual’s provisions in its decision.
To explain in more detail, the Agent Orange presumption is really two presumptions wrapped into one. The first presumption is that if you have Vietnam service, it is presumed that you were exposed to Agent Orange while there. The second presumption is if you were exposed to agent orange in service, it is presumed that this agent orange exposure caused certain diseases, absent evidence of other causes.
This worked great for Vietnam veterans, but not for anyone else.
However, it is possible to be exposed to Agent Orange without having served in Vietnam.
If you were not stationed in Vietnam, yet you can prove you were exposed to Agent Orange during military service, you can bypass Step 1 of the Agent Orange presumption.
In Thailand cases, in May of 2010 the VA had conceded that Thailand veterans with perimeter duties at certain Royal Thai Air Bases were exposed to Agent Orange while there. So, a non- Vietnam veteran with Thailand service did not have to prove that they were exposed to Agent Orange in Thailand in order for Step 2 to kick in, which then presumed that Agent Orange exposure caused their disability.
So, if you are a veteran with Thailand perimeter duties, even if the Board did not adopt language from the M21-1 manual in considering your case, you may still have an argument that the Board has to consider the evidence that the VA concedes Agent Orange exposure for certain Thailand veterans.
However, this argument is likely moot in most cases going forward, since Thailand veterans no longer need to show perimeter duties to prove they were exposed to Agent Orange in Thailand. The conceded evidence rule regarding base perimeter duties might still apply if you were in Thailand during your military service but did not “perform” duties at a Base there, though this scenario is unlikely.
Newman v. McDonough, 35 Vet. App. 310 (2022)
The VA’s “benefit of the doubt” rule governs all cases where the VA must determine whether a claimant qualifies as a veteran or not.
Background:
The veteran claimed that he was entitled to veteran status and thus VA benefits. Although he had been absent without leave (AWOL) from the Marine Corps for more than 180 days, he claimed that he was insane at the time of the offenses that resulted in his discharge. If the veteran was insane at the time, he is entitled to VA benefits.
Some previous cases had held that the preponderance of the evidence rule (the veteran must prove the element by at least 51%) applied to this type of determination, while other cases held that only the benefit of the doubt rule (50% or more) should be used.
The VA definition of insanity is rather broad. In summary, a veteran is considered insane if a disease causes the veteran to deviate from their normal behavior; to interfere with the peace of society; or to become so antisocial that they lack adaptability to adjust to their community. A person can overcome any statutory or regulatory bar to VA benefits if they prove that they were insane at the time of the offense leading to their discharge.
What This Means for You: This type of case probably will not apply to most veterans. However, it does reiterate the fact that the burden of proof for evidence to prove your claim is rather low: when there is an approximate
balance of positive and negative evidence regarding any material issue, the VA is supposed to find in your favor.
Other Considerations:
If you had an unfavorable discharge, there are other ways you may qualify for VA benefits besides claiming that insanity caused your dischargeable actions.
In situations where the veteran was AWOL for more than 180 days, “compelling circumstances” that warrant the absence may still allow you to qualify for benefits.
Additionally, if you had more than one period of service, periods of service before your unfavorable discharge will qualify you for service connection for disabilities that arose during that favorable period of service.
Furthermore, discharge in lieu of court martial only disqualifies you from benefits if you were facing a general court-martial, not a special court-martial. If the record is unclear on whether you were facing a general court-martial or special court-martial at the time of discharge, you may still be eligible for benefits.
Finally, in 2011 the “don’t ask don’t tell” policy regarding homosexuality was abolished. Veterans who were discharged based on their sexual orientation should look into upgrading their discharge status.
George v. McDonough, 142 S. Ct. 1953 (2022)
This is an important case regarding Clear and Unmistakable Error (CUE) cases. CUE allows for earlier effective dates for claims that were denied and not appealed, but were reopened later and granted.
Background:
In this case, a veteran’s claim was denied based on regulations in place at the time. Years later, the courts and the VA rejected that regulation. Since the change in interpretation of the regulation happened after the initial decision, the correct application of the binding regulation at the time the decision did not constitute “clear and unmistakable error”, even though the regulation was later invalidated.
What This Means for You:
CUE is a rare and powerful tool to get you earlier effective dates for your claim, in cases where you were initially denied the claim, then granted the claim years later. However, CUE is rarely granted, and the mistake made must be clear.
Other Considerations:
Another powerful tool besides CUE to get an earlier effective date is the lost records rule. If lost records are later found, and the VA grants your claim based on the new records or a medical opinion based on the new records, the effective date will be the date the VA received the previously denied claim.
-Written by Cameron Kroeger
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