The Department of Veterans Affairs Obligations Toward Claimants: Analysis of the Veterans Claims Assistance Act of 2000

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2 The Department of Veterans Affairs Obligations Toward Claimants: Analysis of the Veterans Claims Assistance Act of 2000 By Meg Bartley, Barton Stichman, and Ronald B. Abrams During the past twelve years, veterans benefits law went through significant changes. The Veterans Judicial Review Act of 1988 transformed veterans law by allowing those applying for federal veterans benefits to appeal their claims to a federal court; this gave Department of Veterans Affairs (VA) claimants another forum in which to win entitlement to benefits. 1 Before this Act, as the House Committee on Veterans Affairs observed, the VA stood in splendid isolation as the single federal administrative agency whose major functions were explicitly insulated from judicial review. 2 On November 9, 2000, then-president Bill Clinton signed into law another significant statute that will affect many claimants seeking VA benefits. The Veterans Claims Assistance Act of 2000, the new statute that we discuss in this article, will have an impact on new claims for VA benefits as well as many claims currently pending before either the VA or a reviewing court. 3 This new statute even affects some past VA decisions those that denied benefits and became final on or after July 14, The Act establishes a new duty to notify that the VA owes to veterans benefits claimants and specifies in detail the assistance that the VA must give them in most cases. 5 However, the Veterans Claims Assistance Act does not change any of the 1 Veterans Judicial Review Act of 1988, 38 U.S.C (LEXIS through 2000 legislation) (right to appeal). See generally Veterans Judicial Review Act of 1988, Pub. L. No , 102 Stat (codified mostly in 38 U.S.C. ch. 72; parts of the Act amended other preexisting statutory provisions in scattered sections of 38 U.S.C.). This Act created the U.S. Court of Veterans Appeals, now the U.S. Court of Appeals for Veterans Claims. See also Nat l Veterans Legal Servs. Project, Veterans Law Developments, 25 CLEARINGHOUSE REV (Jan. 1992). 2 H.R. REP. NO , pt. 1, at 10 (1988), reprinted in 1998 U.S.C.C.A.N (quoting Roger L. Rabin, Preclusion of Judicial Review in the Processing of Claims for Veterans Benefits: A Preliminary Analysis, 27 STAN. L. REV. 905 (1975)). 3 Veterans Claims Assistance Act of 2000, Pub. L. No , 7(a), 114 Stat. 2096, 2099 (LEXIS through 2000 legislation) (to be codified at 38 U.S.C n.). See generally Veterans Claims Assistance Act, Pub. L. No , 114 Stat (to be codified in scattered sections of 38 U.S.C. ch. 51). 4 Id. 7(b), 114 Stat (to be codified at 38 U.S.C n.). 5 Id. 3, 114 Stat (to be codified at 38 U.S.C. 5103(a)) (establishing the new duty of the Department of Veterans Affairs (VA) to notify veterans benefits claimants); id., 114 Stat (to be codified at 38 U.S.C. 5103A) (clarifying the department s duty to assist veterans benefits claimants). Meg Bartley is a staff attorney, National Veterans Legal Services Program (NVLSP), 2001 S St. NW, Suite 610, Washington, DC 20009, and assistant editor, The Veterans Advocate; ext. 110; meg_bartley@nvlsp.org. Barton Stichman is joint executive director, NVLSP; ext. 114; bart_stichman@nvlsp.org. Ronald B. Abrams is deputy director and director of training, NVLSP, and editor, The Veterans Advocate; ext. 111; ron_abrams@nvlsp.org. JULY AUGUST 2001 JOURNAL OF POVERTY LAW AND POLICY 133

3 rules governing what a claimant needs to prove for the claimant to be granted a VA benefit whether the benefit that the claimant seeks is disability compensation, death compensation, pension, death pension, or even educational benefits. Nor does the Act change the burden of proof in the VA benefits process; the burden is generally on the claimant. 6 Nor does the Act change the standard of proof the VA must apply to a claim. The rule in existence both before and after the Act requires the VA to grant a claim if either (1) a preponderance of the evidence supports the claim or (2) the weight of the evidence in support of the claim is approximately equal to the weight of the evidence against the claim. 7 In this article we discuss the Veterans Claims Assistance Act s general impact, explain the VA s new duty to notify claimants and the assistance that the VA must give claimants under the Act, advise advocates on actions they should consider taking when handling cases at the VA regional office level or before the Board of Veterans Appeals, address the Act s impact on claims pending before the Court of Appeals for Veterans Claims, and give recommendations for advocates handling such cases. I. The Veterans Claims Assistance Act s General Impact The Veterans Claims Assistance Act dramatically changes what the VA must do to assist a claimant while a claim is pending before a VA regional office or the Board of Veterans Appeals: The Act eliminates the requirement in 38 U.S.C. 5107(a) that, to earn the right to VA assistance in developing pertinent evidence, a claimant must first submit enough evidence to make the claim well grounded. 8 The Act thereby overruled long-standing precedents of the U.S. Court of Appeals for the Federal Circuit and the U.S. Court of Appeals for Veterans Claims. 9 The Act provides some veterans benefits claimants with the opportunity to force the VA to vacate a past final VA denial of benefits (i.e., set the denial aside as if it had never occurred) and to redecide the claim for benefits after giving the claimant the assistance that the Act requires. 10 The Act provides this opportunity for any claim that the VA denied as not well grounded in a decision that became final between July 14, 1999, and November 9, The Act amends 38 U.S.C to require the VA, upon receipt of a substantially complete application, to notify 6 Compare 38 U.S.C. 5107(a) with Veterans Claims Assistance Act 4, 114 Stat (to be codified at 38 U.S.C. 5107(a)). 7 Compare 38 U.S.C. 5107(b) with Veterans Claims Assistance Act 4, 114 Stat (to be codified at 38 U.S.C. 5107(b)). 8 Veterans Claims Assistance Act 4, 114 Stat (to be codified at 38 U.S.C. 5107). 9 In a series of cases decided throughout the 1990s, the U.S. Court of Appeals for Veterans Claims held that, absent the submission of a well-grounded claim, the VA had no duty to assist claimants in developing their claims and that errors the department made in developing such claims were irrelevant or harmless because the claim was not well grounded. In many cases, veterans had to pay for medical opinions in order for the department to help them with their claims. By eliminating the significance of whether a claim was well grounded under the law in existence before the Veterans Claims Assistance Act, the Act made irrelevant ten years of case law of the U.S. Court of Appeals for Veterans Claims and U.S. Court of Appeals for the Federal Circuit dealing with the well-grounded claim requirement. See, e.g., Nolen v. Gober, 222 F.3d 1356 (Fed. Cir. 2000); Hensley v. West, 212 F.3d 1255 (Fed. Cir. 2000) (Clearinghouse No. 53,044); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Morton v. West, 12 Vet. App. 477 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff d, 78 F.3d 604 (Fed. Cir. 1996); Grivois v. Brown, 6 Vet. App. 136 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet. App. 78 (1990); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 10 Veterans Claims Assistance Act 7(a), 114 Stat (to be codified at 38 U.S.C n.). 11 Id. 7(b), 114 Stat (to be codified at 38 U.S.C n.). 134 CLEARINGHOUSE REVIEW JULY AUGUST 2001

4 the claimant of any information and medical and lay evidence that is necessary to substantiate the claim. 12 The Act adds a section, 38 U.S.C. 5103A, requiring the VA to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant s claim. 13 This duty to assist applies to every claim except frivolous claims, which the Act defines as claims in which no reasonable possibility exists that such assistance would aid in substantiating the claim. 14 New subsections 5103A(b), (c), and (d) add details about what constitutes reasonable efforts to assist by requiring the VA to make reasonable efforts to obtain relevant records in the possession of the VA, other federal agencies, private entities, or state agencies that the claimant identifies and, if necessary, authorizing the VA to obtain them. 15 For federal agency records, these efforts must continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. 16 The new subsections also require, in disability compensation claims, that the VA supply a medical examination, obtain a medical opinion, or both once the claims file contains medical evidence of a current disability or lay evidence of persistent or recurrent symptoms of disability and the evidence suggests that the current disability or symptoms may relate to an event, injury, or disease that took place in service. 17 The VA is finalizing regulations to implement the Veterans Claims Assistance Act. The Act s new section 38 U.S.C. 5103A and amendments to 38 U.S.C apply to all claims pending before the VA or a reviewing court as of November 9, 2000, and to all claims filed after November 9, The VA must apply the Act s provisions to all future claims and claims pending before the VA, whether the claim is pending at a regional office or the Board of Veterans Appeals. 19 The regional office and the board must review each pending claim to determine if the VA already has given the The Act mandates the Department of Veterans Affairs to notify the claimant of any information, and any medical or lay evidence... that is necessary to substantiate the claim. claimant the notifications and assistance that the Act would have if it had been in effect when the claimant filed the claim. If the VA already has given the required notification and assistance, it may decide the claim. If not, then the VA should give the claimant the missing notifications, assistance, or both before deciding the claim. If a court or the VA denied or dismissed a claim as not well grounded and it became final between July 14, 1999, and November 9, 2000, the claimant may request that the VA readjudicate the claim as if the court or the VA had not denied or dismissed it. 20 The claimant must file a request for readjudication or the VA must file a motion for readjudication no later than two years from November 9, Id. 3(a), 114 Stat (to be codified at 38 U.S.C. 5103(a)). 13 Id., 114 Stat (to be codified at 38 U.S.C. 5103A(a)(1)). 14 Id. (to be codified at 38 U.S.C. 5103A(a)(2)). 15 Id., 114 Stat (to be codified at 38 U.S.C. 5013A(b), (c)). 16 Id., 114 Stat (to be codified at 38 U.S.C. 5103A(b)(3)). 17 Id., 114 Stat (to be codified at 38 U.S.C. 5103A(d)). 18 Id. 7(a), 114 Stat (to be codified at 38 U.S.C n.). 19 Id. 20 Id. 7(b), 114 Stat (to be codified at 38 U.S.C n.). 21 Id. 7(b)(3), 114 Stat (to be codified at 38 U.S.C n.). JULY AUGUST 2001 JOURNAL OF POVERTY LAW AND POLICY 135

5 The VA will not conduct a special search for these cases but has indicated that it will readjudicate any such cases that it discovers. 22 Future litigation may occur over which cases are eligible for readjudication under the Veterans Claims Assistance Act. The statute indicates that claims denied or dismissed as not well grounded by a court or the VA that became final between July 14, 1999, and November 9, 2000, are eligible for readjudication if the claimant requests readjudication within the twoyear period. 23 Disagreements may arise concerning the date on which a VA decision becomes final. 24 Undoubtedly cases are pending at the Board of Veterans Appeals in which the VA has not given the notifications and assistance that the Veterans Claims Assistance Act would have required if it had been in effect when claimants filed the claims. Therefore the board probably will remand many cases currently before it to the regional offices so that they can give the missing notifications, assistance, or both to the claimants. The secretary of veterans affairs has issued a proposal to allow the board to give notice and develop evidence actions the regional offices usually perform. 25 II. The VA s New Duty to Notify Claimants The Veterans Claims Assistance Act breaks new ground by mandating that the VA notify the claimant and the claimant s representative of any information, and any medical or lay evidence, not previously provided to the [secretary of veterans affairs] that is necessary to substantiate the claim. 26 This notification requirement also requires the VA to explain to the claimant what evidence the claimant must obtain and what evidence the VA will attempt to obtain. 27 The revised 38 U.S.C. 5103(a) may have almost as big an impact as the elimination of the well-grounded claim requirement. 28 In the past regional office staff asked claimants for information the staff thought was relevant. However, the law did not require them to suggest to claimants the types of evidence that would help support their claims. 29 For example, staff rarely told a veteran attempting to convince the VA that he injured his knee in service that if the veteran during service told a family member that he injured his knee, a statement from the family member regarding this conversation would tend to substantiate one element of the veteran s claim. Some VA adjudicators did not want to suggest that claimants might submit such evidence because the adjudicators were not comfortable balancing positive and negative evidence and because the VA central office did not instruct them to suggest that claimants submit such evidence. Also, some VA adjudicators were willing to request evidence already in existence 22 Veterans Benefits Admin. Fast Letter (Nov. 17, 2000) (regarding Veterans Claims Assistance Act of 2000). 23 July 14, 1999, is the date of the U.S. Court of Appeals for Veterans Claims decision in Morton, 12 Vet. App. 477, which determined that the VA was statutorily barred from assisting claimants who had not filed well-grounded claims. 24 The VA s Adjudication Procedures Manual 21-1 provides: If an NOD [notice of disagreement, the document that initiates an appeal] is received that is not timely filed, inform the claimant that the action taken by the agency of original jurisdiction became final at the expiration of the applicable time limit. Dep t of Veterans Affairs Adjudication Proc. Manual M21-1, pt. IV, 8.05b. 25 Memorandum from Anthony J. Principi, secretary of veterans affairs, to chairman of the Board of Veterans Appeals and VA acting general counsel (Apr. 9, 2001) (proposing amending pertinent regulations to allow the Board of Veterans Appeals to develop evidence and decide cases without remand to the regional offices). 26 Veterans Claims Assistance Act 3(a), 114 Stat (to be codified at 38 U.S.C. 5103(a)). 27 Id. 28 See supra note 9 and accompanying text. 29 McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). 136 CLEARINGHOUSE REVIEW JULY AUGUST 2001

6 but did not believe that they had any obligation to suggest that the claimant try to create evidence, such as a new medical opinion or a new lay statement. As a result of the Act, the VA may have to invite a veteran claiming service connection to submit a continuity of symptomatology history before obtaining a medical opinion regarding linkage or nexus. In general, the VA s new duty to notify may require it to explain to claimants that lay statements, medical opinions, descriptions of continuity of symptomatology, and medical texts may be helpful or necessary to substantiate the claim. The VA s interpretation of its new duty may prove unsatisfactory. In several instances of describing the duty to notify, the VA has confused the duty to notify a claimant of the information and evidence needed to substantiate a claim with the VA s duty to assist a claimant in developing evidence that might support the claim. 30 For example, the VA addressed what readjudication action the regional offices should take when the regional offices, the Board of Veterans Appeals, or the court denied a claim as not well grounded before the Veterans Claims Assistance Act, but the VA previously satisfied the duty to assist. The VA indicated that the regional offices should give claimants an opportunity to identify any evidence necessary to substantiate his/her claim, and allow 60 days for a response. 31 The answer did not mention that the VA now must notify claimants of any information or evidence they need to substantiate the claim. The VA response instead seemed to require the veteran or claimant to identify evidence that would substantiate the claim. Although the new section 5103A(b)(1) provides that the VA shall make reasonable efforts to obtain relevant records that the claimant adequately identifies to the secretary of veterans affairs, this should not be confused with the duty to notify a claimant of the information and evidence necessary to support the claim. III. The Assistance the VA Must Give Claimants The new section the Veterans Claims Assistance Act added, 38 U.S.C. 5103A, defines the circumstances in which the VA must give a claimant assistance in developing pertinent evidence. 32 In some limited circumstances Section 5103A does not require the VA to give any assistance. 33 The Act states that the VA must give Section 5103A assistance unless no reasonable possibility exists that VA assistance would aid in substantiating the claim. 34 Thus the Act in effect replaced the well-grounded claim threshold for requiring VA assistance with a much lower threshold. Essentially, if a claim is frivolous, the VA may still deny the claim without giving the claimant any assistance. If the VA concludes that a particular claim is frivolous, it should deny the claim and explain its reasoning to the claimant. 35 Assuming the claim is not frivolous, section 5103A(a)(1) requires that the VA make reasonable efforts to assist a claimant in obtaining evidence necessary 30 See, e.g., Veterans Benefits Admin. Fast Letter (Jan. 9, 2001) (regarding the Veterans Claims Assistance Act of 2000) (answers to question nos. 9 and 13). For further discussion of the VA s duty to assist claimants, see infra section III. 31 Veterans Benefits Admin. Fast Letter 01-02, supra note 30. If the secretary of veterans affairs proposal to amend pertinent regulations to allow the Board of Veterans Appeals to give claimants notice and development assistance (see supra note 25) becomes effective, then the board also should give claimants this opportunity. 32 Veterans Claims Assistance Act 3(a), 114 Stat (to be codified at 38 U.S.C. 5103A). 33 Id., 114 Stat (to be codified at 38 U.S.C. 5103A(a)(2)). 34 Id. 35 See 38 U.S.C (LEXIS through 2000 legislation) (providing that notice of denial of veterans benefits shall include a statement of the reasons for the decision and a summary of the evidence that the secretary of veterans affairs considered). JULY AUGUST 2001 JOURNAL OF POVERTY LAW AND POLICY 137

7 JIM WEST to substantiate the claimant s claim. 36 Subsections 5103A(b)(1) (nonfederal records), 5103A(b)(3) (federal records), 5103A(c) (records for compensation claims), and 5103A(d) (performing VA medical examinations or obtaining medical opinions) discuss what these reasonable efforts must include, at minimum. Many advocates believe that the U.S. Court of Appeals for Veterans Claims and the Federal Circuit will interpret the new duty-to-assist provisions consistent with pre Veterans Claims Assistance Act case law on the duty to assist. A. Obtaining Existing Records The Veterans Claims Assistance Act requires the VA to make reasonable efforts to obtain relevant records, whether a federal government agency or a private individual or entity possesses the records, as long as the claimant adequately identifies the records and authorizes the VA to obtain them. 37 If the VA is unable to obtain these records after reasonable efforts, the VA must notify the claimant about this failed effort. 38 The Act requires additional effort by the VA if a federal government agency holds the records. The Act requires not only that the VA must make reasonable efforts to obtain relevant federal agency records but also that these efforts continue until it is reasonably certain that [the] records do not exist or that further efforts to obtain those records would be futile. 39 B. VA Medical Examinations and Medical Opinions Section 5103A(d) of the Veterans Claims Assistance Act controls when the VA must supply a VA medical examination or obtain a medical opinion in a veteran s disability compensation claim. Before the Act, disabled veterans often had to obtain and submit medical evidence on their own to earn the right to VA assistance. Under the new section 5103A, if the veteran submits evidence of a current diagnosis or a statement describing the disability s symptoms and those symptoms are persistent or recurrent, the VA must supply a VA medical examination, obtain a medical opinion, or both to assist in the adjudication of the claim unless (1) the disability claim is frivolous or (2) evidence of an in-service precipitating disease, injury, or event is insufficient. 40 If the veteran s claims file did not already contain a medical opinion diagnosing the veteran s current condition, the VA adjudicator would need to schedule a VA medical examination to adjudicate the claim. The adjudicator would need a medical opinion to adjudicate the claim if the claims file did not contain a medical opinion addressing whether the veteran s current condition is as likely as not related to a precipitating disease, injury, or event that occurred during military service. The Act undoubtedly will force the VA in many more cases to obtain a medical opinion discussing whether the current symptoms or disability is related to a pre- 36 Veterans Claims Assistance Act 3(a), 114 Stat (to be codified at 38 U.S.C. 5103A(a)(1)). 37 Id. (to be codified at 38 U.S.C. 5103A(b)). 38 Id. (to be codified at 38 U.S.C. 5103A(b)(2)). 39 Id. (to be codified at 38 U.S.C. 5103A(b)(3)). 40 Id. (to be codified at 38 U.S.C. 5103A(a)(2)) (regarding frivolous claim). 138 CLEARINGHOUSE REVIEW JULY AUGUST 2001

8 cipitating disease, injury, or event that occurred during military service. To increase the likelihood that the physician will conclude that such a relationship exists, advocates can take several actions before the VA requests a medical opinion. First, advocates should request that the VA inform the medical expert what factual evidence the regional office or Board of Veterans Appeals has accepted as true before the VA medical expert issues an opinion. Second, advocates should request that the regional office explain to the medical expert that medical certainty is unnecessary and that the only issue that needs to be resolved is whether the current symptoms or disability is as likely as not related to a particular disease, injury, or event that occurred during military service. 41 Third, advocates should submit any supportive evidence, including evidence about continuity of symptomatology since discharge from military service, so that this evidence will be available to the medical expert before the expert issues an opinion. If an advocate plans to obtain a private medical opinion to support a finding of service connection, the advocate should ask the private medical expert to evaluate the disability s severity. The advocate should give the expert a copy of the relevant diagnostic codes from 38 C.F.R. Part 4. Also, the VA has established specific medical protocols to guide VA physicians in conducting medical examinations. The VA s Automated Medical Information Exchange Disability Examination Worksheets set forth these protocols. The advocate may wish to obtain a copy of the work sheet that pertains to the disability for which the veteran is seeking evaluation and give the copy to the private physician so that the physician may conduct a thorough medical examination and be familiar with the Automated Medical Information Exchange criteria. 42 IV. Cases Before Regional Offices or the Board of Veterans Appeals In handling a case at the VA regional office level, the advocate should consider submitting to the regional office a statement indicating that the Act mandates that the VA notify the claimant and the claimant s representative of any information, and any medical or lay evidence, not previously provided to the [secretary of veterans affairs] that is necessary to substantiate the claim and that therefore the VA should explain to the claimant the types of evidence that would help substantiate the claim; 43 the Act requires the VA to explain to the claimant what evidence the claimant must obtain and what evidence the VA will attempt to obtain; 44 the pending claim is reasonably possible and therefore the VA must make reasonable efforts to assist the claimant in substantiating the claim; 45 if the VA determines that no assistance is necessary, it must explain why no reasonable possibility exists that claims development assistance would substantiate the claim; 46 the Act requires the VA to continue to attempt to obtain relevant federal records until the VA is reasonably certain that the federal records are unobtainable or that they do not exist; 47 if the VA can make a favorable decision on all or some of the claims the claimant submitted, it should not wait to issue such a decision; U.S.C. 5107(b) (LEXIS through 2000 legislation). 42 The VA publishes its Disability Examination Worksheets at navy.mil/admin21/letter/fl0_068.doc. 43 Veterans Claims Assistance Act 3(a), 114 Stat (to be codified at 38 U.S.C. 5103(a)). 44 Id. 45 See id., 114 Stat (to be codified at 38 U.S.C. 5103A(a)(1)). 46 See supra note Veterans Claims Assistance Act 3(a), 114 Stat (to be codified at 38 U.S.C. 5103A(b)(3)). JULY AUGUST 2001 JOURNAL OF POVERTY LAW AND POLICY 139

9 if the VA needs a medical examination, medical opinion, or both to determine nexus or linkage issues, it should delay that examination or opinion until the claimant has an opportunity to submit continuity of symptomatology and other supportive evidence; the regional office should advise the VA examiner involved in the case that the examiner does not have to establish linkage to a medical certainty because the standard of proof in VA claims is the benefit of the doubt or the as likely as not standard; 48 and the regional office also should advise the VA examiner what facts the VA has accepted as true; an examination would be inadequate if the examiner based the opinion on facts that the regional office did not accept as true. 49 At the Board of Veterans Appeals level, advocates should ask for remands either when the VA has not satisfied the Act s notice requirements or when the regional office has denied the claim as not well grounded. Of course, advocates should also argue other regional office failures, for example, failing in the duty to assist or misinterpreting a statute or regulation. The VA s failure to explain to the claimant what evidence, including evidence such as medical opinions and lay statements, would tend to substantiate the claim will generate many remands. V. The Act s Impact on Claims Before the Veterans Court and Recommendations for Advocates The Veterans Claims Assistance Act affects or has the potential to affect many cases on appeal to the U.S. Court of Appeals for Veterans Claims. Following are recommendations for advocates handling those cases the Board of Veterans Appeals denied as not well grounded and those it denied on the merits. A. Claims Denied as Not Well Grounded The Veterans Claims Assistance Act has an immediate impact on the pending appeal of a claim that the Board of Veterans Appeals denied as not well grounded. Either party immediately may move the court to vacate the board s decision and remand for the VA to give the claimant the notice and assistance that the Act requires. 50 As a general matter, advocates should seek or acquiesce to a court order vacating the Board of Veterans Appeals decision and remanding for compliance with the Veterans Claims Assistance Act. This course of action is advantageous because the U.S. Court of Appeals for Veterans Claims should grant these motions quickly, and therefore the claimant would receive a final VA decision on the claim more quickly than if litigation were to continue. 51 Moreover, obtaining an order requiring the U.S.C. 5107(b) (LEXIS through 2000 legislation). 49 See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ( [medical] opinion based upon an inaccurate factual premise has no probative value ). 50 See In re Veterans Claims Assistance Act of 2000, Vet. App., Misc. Order No. 4-00, 2000 WL (Nov. 13, 2000) (en banc order, temporarily found at 14 Vet. App. at Ct. R-2 (Dec. 2000)) (issuing special procedural rules that apply in cases potentially affected by the Veterans Claims Assistance Act s enactment). The Act s repeal of the well-grounded threshold standard applies to appeals pending in court on the date of enactment. Veterans Claims Assistance Act 7(a)(2), 114 Stat (to be codified at 38 U.S.C n.2). Case law has well established that when a change in law occurs while a claim is pending before the VA or the U.S. Court of Appeals for Veterans Claims, the claimant generally is entitled to application of whichever law (the old law or the new law) is more favorable to the claimant. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991) (Clearinghouse No. 48,412). Because the department may not deny a claim as not well grounded under the Veterans Claims Assistance Act, the Act is more favorable to a claimant whose claim the Board of Veterans Appeals denied under pre Veterans Claims Assistance Act law as not well grounded. Thus, where the board denied a claim as not well grounded, the court should grant as a matter of course motions to vacate and remand for compliance with the Act. 51 See In re Veterans Claims Assistance Act of 2000, Vet. App., Misc. Order No. 4-00, 2000 WL CLEARINGHOUSE REVIEW JULY AUGUST 2001

10 VA to do more than comply with the Act is unlikely for such an appellant. In some cases an already-briefed issue or one with the potential to be briefed could lead to more specific remand instructions from the court to prevent repetition of the same error on remand. 52 Thus an advocate could believe that continuing to litigate would give an advantage to the claimant in that the court ultimately could agree with the advocate that the errors the VA made constitute a basis for remand and order the VA to do more than simply comply with the Veterans Claims Assistance Act. On balance, however, further litigation is unlikely to be in the appellant s best interests. The court is not likely to delay a final resolution and expend judicial resources to consider what the pre-veterans Claims Assistance Act law required in a particular case when it can properly dispose of the case without addressing these issues. Any claims of error that claimant could litigate would be preserved on remand. If the court finds that the VA s position was substantially justified, it will not award attorney fees under the Equal Access to Justice Act. 53 The court s existing case law provides that it will apply the substantial justification test only to the legal issues that the court s remand order or the parties joint motion for remand discusses and resolves. 54 If the only expressed reason for the remand is the Veterans Claims Assistance Act s enactment, the court would most likely find, under its existing case law, that the VA s administrative position was substantially justified, precluding a fee award. To preserve the right to fees under existing case law, the advocate should attempt to obtain the VA s or the court s agreement that a remand is necessary for a reason other than, or in addition to, the Veterans Claims Assistance Act, namely, that the Board of Veterans Appeals made one or more errors under pre Veterans Claims Assistance Act law that the appellant could rely on for the fee application. Unfortunately the VA General Counsel s Office, in order to position the VA better to avoid liability for fees, is not likely to agree to base the remand on a reason other than the Act. However, rejecting a quick remand that is in the client s best interests merely because counsel wishes to preserve the right to a fee award would be unethical. Therefore, opposing a remand based solely on the Veterans Claims Assistance Act in order to litigate whether the Board of Veterans Appeals erred under pre Veterans Claims Assistance Act law would not be advisable. Because the court historically has limited application of the substantial justification test to only the errors identified in the court s remand order or the parties joint motion for remand, it has refused to consider the reasonableness of other Board of Veterans Appeals errors that the appellant identifies in motions or briefs on the merits. 55 The court also has refused to consider the reasonableness of board errors on issues the joint motion states the agency on remand should also consider because this language does not rise to an admission of error. 56 The court s en banc decision in Cullens v. Gober shows that the court is divided on whether to overrule these precedents. 57 Appellants who challenge an unreasonable Board of Veterans Appeals decision by appealing to the court, but who ultimately receive a remand for the board 52 E.g., the Board of Veterans Appeals may have made a Robinette error (failure of the VA to advise the claimant to submit certain existing evidence, see Robinette v. Brown, 8 Vet. App. 69 (1995)) or a Stegall error (failure of the Board of Veterans Appeals to force the regional office to comply with the instructions contained in a previous remand by the board or U.S. Court of Appeals for Veterans Claims, see Stegall v. West, 11 Vet. App. 268 (1998)). 53 Equal Access to Justice Act, 28 U.S.C. 2412(d)(1)(A) (LEXIS through 2001 legislation). 54 See Dillon v. Brown, 8 Vet. App. 165, 168 (1995). 55 See, e.g., id. at See, e.g., Stephens v. West, 12 Vet. App. 115, (1999). 57 Cullens v. Gober, 14 Vet. App. 234 (2001). JULY AUGUST 2001 JOURNAL OF POVERTY LAW AND POLICY 141

11 to consider whether the Act, which Congress enacted after the board s decision, applies to the claim, should not be deterred from filing a fee petition lest the court not review whether the board s position (i.e., the secretary of veterans affairs administrative position, which the court never addressed in remanding the case) was substantially justified. The possibility exists that the U.S. Court of Appeals for Veterans Claims or the U.S. Court of Appeals for the Federal Circuit may overrule the limitation on what government positions are subject to the substantial justification test. The following steps for advocates may preserve whatever right the appellant may have to a fee award: Do not formally agree to a joint motion for remand based solely on the Veterans Claims Assistance Act. File a motion for remand, or respond to a VA motion for remand based solely on the Act, and agree at the outset that appellant is entitled to a quick remand because of the Act, but state that the Board of Veterans Appeals made errors under pre Veterans Claims Assistance Act law. To avoid delay, advocates need not spend the time to brief fully the board errors under pre Veterans Claims Assistance Act law. Specific identification of the pre Veterans Claims Assistance Act errors is probably all that is necessary to preserve the right to fees. If the record on appeal is not already before the court, attach to the motion for remand or response to the VA s motion for remand any documents from the claims file that the court would need to rely on to determine whether the Board of Veterans Appeals erred under pre Veterans Claims Assistance Act law. The Equal Access to Justice Act provides that [w]hether or not the position of the [VA] was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought. 58 The court likely will remand the case based solely on the Act. Nonetheless, file a timely fee petition and present an argument on why the VA s position was not substantially justified because the Board of Veterans Appeals, under pre Veterans Claims Assistance Act law, made legal errors that your previous pleading identified and that were not reasonable in fact and in law. The court should not deny an appellant fees that it would have granted under pre Veterans Claims Assistance Act law simply because Congress enacted a new law after the Board of Veterans Appeals unreasonable and unlawful denial of the claim. B. Claims Denied on the Merits As a result of the change-in-law rule discussed above, the Veterans Claims Assistance Act s enactment may give an appellant additional reasons why the U.S. Court of Appeals for Veterans Claims should vacate a Board of Veterans Appeals decision that denied a claim on the merits before the Act s enactment. 59 Advocates should review the claims file to determine whether, during the administrative proceedings leading to the board s denial, the VA took the actions that the Act now requires the VA to take. To the extent that the VA did not take them, advocates may argue that the court should vacate and remand the board s decision on the claim for the VA to comply with the Act. The most important Veterans Claims Assistance Act sections for the advocate to review are the new 38 U.S.C. 5103A and the amendments to 38 U.S.C As discussed in section III, section 5103A generally codifies the Court of Appeals for Veterans Claims and Federal Circuit case law defining what the VA must do to assist the claimant in developing the pertinent evidence in a claim well grounded under pre Veterans Claims Assistance Act law. A review of the record may identify U.S.C. 2412(d)(1)(B). 59 See supra note CLEARINGHOUSE REVIEW JULY AUGUST 2001

12 Veterans Benefits Manual The National Veterans Legal Services Program and Lexis Law Publishing s Veterans Benefits Manual is a guide for advocates who help veterans and their families obtain benefits from the Department of Veterans Affairs. It includes analysis from a team of experts, sample forms and briefs, flowcharts, checklists, citations to legal authorities, and other documents to streamline the claims process and save time. Veterans Claims Assistance Act of 2000: An Addendum to the Veterans Benefits Manual explains the new statute and helps advocates take advantage of the changes in the law. Veterans Benefits Manual and Related Laws and Regulations, which contains the manual, the addendum, and Federal Veterans Law, Rules, and Regulations, is available on CD-ROM. The 2000 CD-ROM edition has hypertext links to the United States Code Service, the Code of Federal Regulations, and the Department of Veterans Affairs Adjudication Procedures Manual (M21-1) from the Veterans Benefits Manual and includes decisions from the U.S. Court of Appeals for Veterans Claims and the U.S. Court of Appeals for the Federal Circuit. For more information or to order the manual or CD-ROM, call Further discussion of the new statute is also in the July September 2000 and October December 2000 issues of the National Veterans Legal Services Program s quarterly veterans law and advocacy journal, The Veterans Advocate. For subscription information, call ext the same erroneous failures to assist that a similar review would have identified under pre Veterans Claims Assistance Act law. As discussed in Section II, the Act s amendments to 38 U.S.C require the VA to notify the claimant and administrative representative of any information, and any medical or lay evidence, not previously provided to the [VA,] that is necessary to substantiate the claim. 60 Because this represents a significant expansion of the pre Veterans Claims Assistance Act duty to notify, the VA, in many pre Veterans Claims Assistance Act cases, failed to give this type of complete notice before the Board of Veterans Appeals denial on the merits. A motion for remand of a claim that the Board of Veterans Appeals denied on the merits for compliance with the Veterans Claims Assistance Act is not nearly as simple as a motion for remand of a claim the board denied as not well grounded. That the board denied the claim as not well grounded is the only relevant fact in a motion for remand of that type of claim. On the other hand, a motion for remand of a claim that the board denied on the merits requires the advocate to discuss the actions the VA took and failed to take to notify the claimant, develop the pertinent evidence, and then explain how the Act would have required additional actions. Thus, in cases in which the Board of Veterans Appeals denied the claim on the merits, counsel should brief all the errors the board made under pre Veterans Claims Assistance Act law in the same pleading that presents arguments based on the Act. If the U.S. Court of Appeals for Veterans Claims ultimately remands the claim solely on the basis of the Act, counsel should nonetheless file a motion for attorney fees for the reasons discussed in section V.A above. Most veterans advocates agree that the abrupt end of the well-grounded claim requirement will benefit VA claimants. They hope that the VA s new duty to notify a claimant of the evidence and information necessary to prove a claim will improve the veterans benefits process and help deserving claimants obtain their benefits more easily. Advocates also expect the more specific duty-to-assist provisions eventually to ease the claims process significantly because in many cases the VA, rather than advocates and veterans (at the veteran s expense), now will have to obtain the medical linkage opinions that will support the claimant s case. 60 Veterans Claims Assistance Act 3(a), 114 Stat (to be codified at 38 U.S.C. 5103(a)). JULY AUGUST 2001 JOURNAL OF POVERTY LAW AND POLICY 143

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