Wednesday, March 18, 2009

VA Fast Letter on Hartness v. Nicholson, Vets over 65y/o

DEPARTMENT OF VETERANS AFFAIRS Veterans Benefits Administration Washington, D.C. 20420


December 22, 2006

Director (00/21) In Reply Refer To: 211A
All VA Regional Offices and Centers Fast Letter 06-28


SUBJ: Hartness v. Nicholson

This letter contains guidance for adjudicating special monthly pension (SMP) cases where the veteran is 65 years of age or older.


Background

On July 21, 2006, the U.S. Court of Appeals for Veterans Claims (CAVC) issued a decision in the case of Hartness v. Nicholson (2006). The veteran had been found entitled to non-service-connected disability pension benefits under the provisions of title 38 U.S.C. § 1513(a) based on being over age 65. He subsequently submitted a private medical report in support of a claim for SMP. He was determined to be 70 percent disabled due to loss of vision and entitlement to SMP was denied. The CAVC reversed a May 2004 Board decision affirming the denial and remanded the matter to the Board.

The CAVC determined that the Board erred because it failed to apply section 1513(a) when considering whether Mr. Hartness was entitled to SMP under title 38 U.S.C. § 1521(e). The CAVC held that “application of section 1513(a) results in the exclusion of the permanent-and-total-disability requirement in section 1521(a) and (e) when considering whether a veteran 65 years of age or older is entitled to non-service-connected disability pension.” The CAVC interpreted section 1513(a) as requiring an award of SMP to a wartime veteran “if, in addition to being at least 65 years old, he or she possesses a minimum disability rating of 60 percent or is considered permanently housebound as defined under 38 U.S.C. § 1502(c).”


Statutes and Regulations at Issue

Title 38 U.S.C. § 1513(a), Service Pension, requires that VA pay an eligible wartime veteran who is 65 years of age or older pension at the rates prescribed by section 1521 and under the conditions (other than the permanent and total disability requirement) applicable to pension paid under that section.
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SUBJ: Hartness v. Nicholson


Title 38 U.S.C. § 1513(b) provides that if a veteran is eligible for pension under both section 1513 and section 1521, pension “shall be paid to the veteran only under section 1521 of title 38 United States Code.”

Title 38 U.S.C. § 1521(a), Disability Pension, provides that VA must pay a pension to an eligible wartime veteran “who is permanently and totally disabled from non-service-connected disability not the result of the veteran’s willful misconduct.” Section 1521(e) specifically provides for an increased pension if the veteran has a disability rated as permanent and total and (1) has additional disability or disabilities independently ratable at 60 percent or more, or (2) by reason of a disability or disabilities, is permanently housebound.

Title 38 U.S.C. § 1502(c) provides that a veteran is considered permanently housebound when “the veteran is substantially confined to such veteran’s house (ward or clinical areas, if institutionalized) or immediate premises due to a disability or disabilities which it is reasonably certain will remain throughout such veteran’s lifetime.”

Title 38 CFR § 3.351(d) provides VA’s interpretation of the special monthly pension provisions under title 38 U.S.C. § 1521.


Application of Hartness to pension claims

There are four distinct types of claims where the provisions of Hartness could be raised.

1. A claim is received from a veteran over age 65 with no accompanying medical evidence and no claim for special monthly pension (SMP).

Process the claim as you currently do, with entitlement based on qualifying service and income.

2. A claim is received from a veteran over age 65 with accompanying medical evidence and a specific claim for SMP.

Congress has provided two means of establishing entitlement to non-service-connected disability pension: being age 65 or older, which does not contain a disability requirement (see section 1513(a)); and having disability sufficient to establish permanent and total disability (see section 1521(a)). In the example cited, the potential exists to establish pension entitlement under both sections. Pension will only be established under the age 65 provisions if the medical
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SUBJ: Hartness v. Nicholson


evidence is insufficient to establish entitlement based on disability. In such a case, there is the potential for future application of Hartness. If the medical evidence submitted is sufficient to establish entitlement to pension based on disability, entitlement to SMP requires that the veteran have a disability rated permanent and total and either have additional disability ratable at 60 percent or more or be permanently housebound.

3. A claim for SMP is received from a veteran who has previously been awarded pension under the age 65 provisions of section 1513(a).

Obtain medical evidence, including a VA examination if necessary. Determine eligibility for aid and attendance (A&A) and/or housebound. If entitlement to A&A is not shown, but there is disability ratable at 60 percent or more, entitlement to housebound is established.

4. A claim for SMP is received from a veteran who was awarded pension under the disability provisions of section 1521 prior to age 65 and who is now over the age of 65.

Evaluate entitlement to SMP under the disability provisions of section 1521.


Effective dates

Under the holding of a precedent opinion of the Office of the General Counsel (VAOPGCPREC 9-94), decisions of the CAVC invalidating VA regulations or statutory interpretations do not have retroactive effect in relation to prior "final" adjudications of claims, but should be given retroactive effect as they relate to claims still open on direct review. Accordingly, the holding in Hartness applies only to claims still open on direct review as of the date of the decision, July 21, 2006, and claims filed on or after that date.


Questions

Questions concerning this fast letter and other issues related to Hartness should be submitted to the VAVBAWAS/CO/21Q&A mailbox.



/S/
Bradley G. Mayes, Director
Compensation & Pension Service

VA Fast Letter on Vazquez-Flores v. Peake, VCAA

DEPARTMENT OF VETERANS AFFAIRS Veterans Benefits Administration Washington, D.C. 20420
September 16, 2008

Director (00/21)
All VA Regional Offices and Centers Fast Letter 08-26


SUBJECT: Vazquez-Flores v. Peake and New Veterans Claims Assistance Act (VCAA) Notification Requirements

This fast letter contains guidance on new notification requirements in claims for increased disability compensation. This letter supercedes any prior guidance regarding notification procedures resulting from a decision issued by the United States Court of Appeals for Veterans Claims (the Court) in Vazquez-Flores v. Peake on January 30, 2008.

Vazquez-Flores v. Peake created additional notice requirements for claims based on increased evaluation. The Court found that 38 U.S.C. § 5103(a) requires that VA notify the claimant of the following:

Medical or lay evidence that the claimant must provide, or ask VA to obtain, demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and daily life;
At least general notice of the diagnostic code (DC) criteria, including any specific test or measurement with any applicable cross-referenced DC under which the veteran may be rated, if the requirements for an increase in evaluation would not be satisfied by a noticeable worsening or increase in severity of the disability and the effect that worsening has on employment and daily life;
A disability evaluation is determined by applying relevant DCs, which range typically between 0 percent to as much as 100 percent, and is based on the nature of the symptoms for which disability compensation is sought, their severity and duration, and their impact upon employment and daily life; and
Examples of the types of medical and lay evidence that are relevant to establishing entitlement to increased compensation (such as competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to it).
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Director (00/21)


Notification Requirements in Claims for Increased Evaluation

The section of the current VCAA notice titled How VA Determines the Disability Rating meets the Court’s requirements for the third and fourth elements stated above. However, as explained below, regional office (RO) personnel must modify this section further in order to comply with the first and second elements. For the first element, the current VCAA notice is not compliant with the Veterans Court's decision because it does not mention the need to submit evidence showing the effect of the worsening of the disability on the veteran's daily life. VA is litigating the second element regarding notice of the DC rating criteria.

Effective immediately, when providing initial VCAA notification in claims for increased evaluation, veterans service representatives (VSRs) must delete the current section, How VA Determines the Disability Rating. They must replace it with the revised section of the same title contained in Enclosure 1.

VSRs must also provide the complete DC rating criteria under which the disability is currently rated, and any criteria in a DC cross-referenced in the currently used DC. A cross-referenced DC is another four-digit DC noted within the DC criteria at issue, the criteria of which provides an alternate means to evaluate the disability. Provide the DC criteria even if the claimant appears to be rated at the schedular maximum. Attach the DC criteria at the end of the letter, after the VCAA Notice Response. Be sure to include for the claims record (whether paper or electronic) copies of all DC criteria provided to the claimant. See the attached RBA2000 Rating Schedule Help Tool instructions on printing the DC criteria. Refer any questions concerning DCs or cross-references to a rating veteran service representative (RVSR). The RVSR may subsequently evaluate the disability under a different DC without providing additional notice, but should fully explain the reasons for using a different DC. See Enclosure 6 for a diagram of this process.

Appeal Notification Requirements

When the claimant files an appeal in response to a decision regarding an increased evaluation, the RO will cure any notice defect during the appeal. (Note that the requirements of Vazquez-Flores do not apply to appeals of increased evaluation resulting from initial grants of service connection i.e., when the evaluations are downstream issues. Please see the enclosed Vazquez-Flores Questions and Answers for more information.) As with claims notification, identify and print the complete diagnostic code (DC) criteria, with any cross-referenced DCs, under which the disability at issue is currently rated.


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Director (00/21)


Provide the DC criteria even if the appellant appears to be at a schedular maximum. Attach the DC criteria in all appeal cure notices after the appropriate notice response. See Enclosures 7 to 9 for diagrams of the basic steps for curing the notice defect for the appeal stages. See the RBA2000 Rating Schedule Help Tool instructions on printing the DC criteria. Be sure to include for the claims record (whether paper or electronic) copies of all DC criteria provided. The decision review officer (DRO) or RVSR may subsequently evaluate the disability under a different DC without providing additional notice, but should fully explain the reasons for using a different DC.

Notice of Disagreement

After receiving a notice of disagreement (NOD), simultaneously prepare the appeal process election letter and a separate appeal cure notice, if not previously provided. See Enclosure 2, Letter to Cure Pending Appeals for Increased Evaluation. Include with the notice Enclosure 3, Vazquez-Flores Notice Response. The 30-day response period for the cure notice may run concurrently with the 60-day appeal election response time.

If the appellant elects the DRO process in the NOD, send the appeal cure notice and allow 30 days for a response.

Statement of the Case

Prior to issuing a statement of the case (SOC), determine whether VA previously provided the appeal cure notice. If not, send Enclosure 2 and include the Vazquez-Flores Notice Response. Allow the appellant 30 days to respond to the cure notice. Unless the appellant waives that response time, after 30 days, if no evidence is submitted or the evidence submitted does not result in a full grant, refer the appeal to the DRO or RVSR to issue the SOC.

Supplemental Statement of the Case

If additional evidence is received after the SOC and the appeal cure notice was not previously provided, send Enclosure 2 and include the Vazquez-Flores Notice Response. Allow the appellant 30 days to respond to the cure notice. Then, refer the appeal to the DRO or RVSR for the supplemental statement of the case (SSOC).

Travel Board Hearings
After receipt of the VA Form 9, Appeal to Board of Veterans’ Appeals, the appellant may request a local hearing before the Board of Veterans’ Appeals (BVA) Travel Board or via videoconference. Do not reschedule, postpone or otherwise cancel a videoconference or
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Director (00/21)


Travel Board hearing strictly because of any Vazquez-Flores notice issue. For hearings scheduled in the near future, the RO should screen its Travel Board cases for appeals of
increased ratings and, if a cure letter was not sent but required, send Enclosure 2 with Enclosure 3, the Vazquez-Flores Notice Response.

Follow the cure notice with re-adjudication of the appeal in the form of an SSOC. To emphasize that the appellant may waive the 60-day response time, on the SSOC cover letter, under the section titled I already filed a formal appeal, place in bold font the last sentence that reads, If you do not wish to respond, and you do not want us to wait for the full 60 days to expire, you can write to us and let us know that.

If a Travel Board hearing is currently scheduled, but the appellant does not have the full time to respond to the cure notice or its subsequent SSOC, proceed with the scheduled hearing, unless instructed otherwise by the Board. Give the appellant the opportunity to waive the 30-day response time and/or the 60-day response time, if the SSOC was issued. If the response time is not waived, re-adjudicate the appeal after the required time period has expired.

Be prepared to fill the Travel Board docket with other available cases if the hearing is rescheduled or cancelled (see M21-1MR, Part I, Chapter 5, Section H, Topic 38, Block i). If the hearing is scheduled in less than 30 days for these new cases, remember to include a waiver of advance notice of the hearing.

Certification to the Board of Veterans’ Appeals

If the appeal is ready for certification to BVA and the cure notice is not of record, send Enclosure 2, Letter to Cure Pending Appeals for Increased Evaluation with a Vazquez-Flores Notice Response. If a response is received that indicates no additional development is necessary, or if no response is received after 30 days, re-adjudicate the appeal in the form of an SSOC. Wait for the 60-day SSOC response time to expire unless the appellant waives it. Certify the appeal and transfer the claims folder to BVA. If evidence is received after certification to BVA, follow the guidelines set forth at M21-1MR, Part I, Chapter 5, Section F.

Remands

The Appeals Management Center (AMC) typically receives and processes remands. However, if an RO receives a remand, the RO must comply with the remand instructions. The VSR will perform any required additional development, including, as necessary, sending the appropriate cure notice and notice response.
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Director (00/21)


Questions?

If you have any questions about this letter, please refer first to Enclosure 4, Vazquez-Flores Questions and Answers. Otherwise, send your question via e-mail to VAVBAWAS/CO/212A.



/S/
Bradley G. Mayes,
Director
Compensation and Pension Service

Enclosures

Meaning of "pertinent" in veterans claims

One item in veterans claims is different is that the Secretary is obliged to obtain all relevant facts that are pertinent to the claim, "not just those for or against the claim."

The Secretary, then, is obligated under ù 3007(a) to assist "such a claimant in developing the facts pertinent to the claim." Within the non-adversarial process of
VA claims adjudication, the word "pertinent" takes on an even stronger meaning; the Secretary's duty applies to all relevant facts, not just those for or against the claim. Having been codified by Public Law 100-687, this obligation is more than a matter of policy or executive discretion; it is mandated by statute.


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U.S. Court of Appeals for Veterans Claims
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. 90-107
MURPHY.107
Search Terms: PERTINENT Note: Pursuant to 38 U.S.C. ù 4067(d)(2)
(1988) this decision will become the decision
of the Court thirty days from the date hereof.

UNITED STATES COURT OF VETERANS APPEALS

No. 90-107

Bonnie L. Murphy, Appellant,

v.

Edward J. Derwinski,
Secretary Of Veterans Affairs, Appellee.


On Appeal from the Board of Veterans' Appeals

(Argued October 11, 1990 Decided November 8, 1990)

Andrew H. Marshall (non-attorney practitioner) and John J.
Corcoran argued the case, and Edward J. Kowalczyk (non-attorney
practitioner) was on the brief for appellant.

Stephen A. Bergquist, with whom Raoul L. Carroll, General
Counsel, Barry M. Tapp, Assistant General Counsel, and Andrew J.
Mullen, Deputy Assistant General Counsel, were on the brief, for appellee.


Before KRAMER, FARLEY, and HOLDAWAY, Associate Judges.


FARLEY, Associate Judge: Appellant filed a claim seeking service
connection for her husband's death from glioblastoma multiforme, a type of
cancer. The Board of Veterans' Appeals (BVA) affirmed the denial of
service connection based upon the finding that no causal relationship had
been shown between an earlier, service connected, form of cancer and the
glioblastoma multiforme. We vacate the BVA decision and remand with
directions that the BVA either (a) provide "reasons or bases" for the
conclusion that appellant failed to submit a well grounded claim because
no such
relationship could exist; or (b) assist appellant in the gathering of
records and determine whether such a relationship did, in fact, exist.

I.
The facts giving rise to this appeal may be briefly summarized.
Appellant, Bonnie J. Murphy, is the widow of Lt. Col. Francis B. Murphy
who retired from the United States Air Force in June 1970. Within five
months after retirement, an epidermoid carcinoma was found on the right
base of the veteran's tongue. Following a course of radiation therapy, a
radical right tongue-jaw-neck dissection was performed and the tumor was
excised. Service connection was established for residuals of the
epidermoid carcinoma and the surgery. A subsequent examination reported
no evidence of a recurrence of the epidermoid carcinoma, R. at 29, and the
record in this case does not contain any such evidence. Appellant did
indicate that the veteran had skin cancers surgically removed three times
as an outpatient during 1986 and 1987. R. at 60. The veteran died on
June 10, 1988. The death certificate lists the cause of death as
glioblastoma multiforme ("[A] rapidly growing tumor, usually confined to
the cerebral hemispheres . . . ." Dorland's Illustrated Medical
Dictionary 699 (27th ed. 1988)). The time between the onset of the
condition and the veteran's death is listed on the death certificate as
four months.
Appellant sought benefits based upon the argument that, since her
husband's 1970 cancer was service connected, and he died due to cancer,
service connection should be granted. In addition, appellant appears to
suggest that additional medical records should be obtained and reviewed
along with the tissue slides of the 1970 cancer. In a decision dated
December 8, 1989, the BVA affirmed the denial of service connection for
the veteran's death. The Board found, inter alia, that: "No causal
relationship has been shown between the service-connected residuals of
epidermoid carcinoma and the development of glioblastoma multiforme."
Bonnie J. Murphy, loc. no. 934379 at 6 (BVA Dec. 8, 1989). It concluded
that: "Glioblastoma multiforme was not incurred in or aggravated by active
service, was not proximately due to or the result of service-connected
disability, and may not be presumed to have been incurred in active
service." Id. This timely appeal followed.

II.
The issue presented to this Court for review has changed during the
course of this appeal. In her Statement of Issues, appellant originally
asked that we determine whether the BVA "clearly erred in denying service
connection for the cause of the veteran's death." However, in her brief,
appellant stated that the issue was: "Whether the Secretary arbitrarily
failed to discharge his duty to assist Appellant in developing evidence in
support of Appellant's claim and, further, arbitrarily failed to explain
the reasons for his inaction." Br. of Appellant at 1. It is the latter
issue which we will address.
Section 3007(a) of title 38 provides:
Except when otherwise provided by the Secretary in accordance
with the provisions of this title, a person who submits a claim
for benefits under a law administered by the Department of
Veterans Affairs shall have the burden of submitting evidence
sufficient to justify a belief by a fair and impartial
individual that the claim is well grounded. The Secretary
shall assist such a claimant in developing the facts pertinent
to the claim. Such assistance shall include requesting
information [from the head of any Federal department or agency
.]
38 U.S.C. ù 3007(a) (1988).

Thus, it is true, as appellant argues, that the Secretary and the
Department of Veterans Affairs (VA) have a statutory duty to assist
claimants during the non-adversarial process of claims adjudication. The
issue, then, is not whether such a duty exists but under what
circumstances does it arise.
As we have noted in the past, ù 3007(a) establishes "chronological
obligations." Gilbert v. Derwinski, U.S. Vet. App. No. 89-53, slip op.
at 10 (Oct. 12, 1990). The initial burden is on the shoulders of the
veteran or the claimant: "[A] person who submits a claim . . . shall have
the burden of submitting evidence sufficient to justify a belief by a fair
and impartial individual that the claim is well grounded." ù 3007(a).
Because a well grounded claim is neither defined by the statute nor the
legislative history, it must be given a common sense construction. A well
grounded claim is a plausible claim, one
which is meritorious on its own or capable of substantiation. Such a
claim need not be conclusive but only possible to satisfy the initial
burden of ù 3007(a).
The BVA may conclude that a claim was not well grounded, that the
claimant did not or could not meet the initial burden imposed by ù 3007(a
), and that there was no duty to provide assistance to the claimant. Such
a conclusion, especially if it is medical or scientific in nature, like
all other findings and conclusions of the BVA, must be supported by "a
written statement of . . . the reasons or bases for those findings and
conclusions." 38 U.S.C. ù 4004(d)(1) (1988); see also Gilbert v.
Derwinski, U.S. Vet. App. No. 89-53 (Oct. 12, 1990). Although the
Secretary appears to argue to the contrary in this appeal, Br. of Appellee
at 11, the fact that a BVA panel may include a physician is not by itself
sufficient for the purposes of the statute, the veteran or this Court.
BVA decisions must include the "reasons or bases" for medical conclusions,
even those opined by a BVA physician; a mere statement of an opinion,
without more, does not provide an opportunity for the veteran to explore a
basis for reconsideration or for this Court to review the BVA decision "on
the record" as required by 38 U.S.C. ù 4052(b) (1988). The specific type
of support will depend upon the nature of the particular claim, but such "
reasons or bases" could include relevant portions of medical treatises and
journals, epidemiological studies, perhaps even references to legal
decisions on the same issues. Moreover, as we have noted, the BVA
will find it easier to fulfill this mandate since Congress
recently imposed a similar requirement on the Secretary when
claims are denied. In 1989, Congress enacted 38 U.S.C.A. ù
3004(a)(2) (West Supp. 1990), which provides that "[i]n any
case where the Secretary denies a benefit sought, the notice
. . . shall also include (A) a statement of the reasons for
the decision, and (B) a summary of the evidence considered by
the Secretary." The legislative history makes it clear that
this requirement "would not be met by such terms as 'service
connection not found' or other such conclusory statements." 135
Cong. Rec. S16466 (daily ed. Nov. 21, 1989) (Explanatory
Statement on the Compromise Agreement on H.R. 901 as Amended,
the "Veterans Benefits Amendments of 1989").
Gilbert v. Derwinski, U.S. Vet. App. No. 89-53, slip op. at 12-13 (Oct.
12, 1990).
Once the claimant has "submitted evidence sufficient to justify a
belief by a fair and impartial individual that the claim is well grounded,"
the claimant's initial burden has been met. The Secretary, then, is
obligated under ù 3007(a) to assist "such a claimant in developing
the facts pertinent to the claim." Within the non-adversarial process of
VA claims adjudication, the word "pertinent" takes on an even stronger
meaning; the Secretary's duty applies to all relevant facts, not just
those for or against the claim. Having been codified by Public Law 100-
687, this obligation is more than a matter of policy or executive
discretion; it is mandated by statute.
Indeed, as the Senate Veterans'
Affairs Committee commented with respect to the Secretary's duty to assist:
Although the claimant has the burden of submitting evidence in
support of the claim, that evidence may be in the veteran's
service record or other governmental records and, therefore, in
the control of the Federal Government. In such situations, the
VA should be responsible for providing the material - or seeing
that it is provided - needed to make the determination on
eligibility.
S. Rep. No. 418, 100th Cong., 2nd Sess., 33-34 (1988).
When a claimant submits a properly filled out and executed VA form 21-526,
Veteran's Application for Compensation and Pension, the Secretary has the
veteran's biographical, family, medical, and service data. This
information will enable the Secretary to fulfill his statutory duty to
assist the claimant by securing any relevant VA, military or other
governmental records. In addition, if private medical, hospital,
employment or other civilian records would assist the development of "the
facts Previous HitpertinentNext Hit to the claim", the Secretary would be able to request them
from the claimant or, upon authorization, obtain them directly.

III.
It is not disputed that the veteran received service connection for
cancer in 1970 and that he died of cancer in 1988. The BVA decision, as
well as the Statement of the Case prepared by the Regional Office,
essentially concluded that the claimant did not submit a well grounded
claim and that, therefore, the Secretary did not have a duty under ù 3007(
a) to assist the claimant. The reason the claim was not well grounded,
and
why further development was unnecessary, was because: "The glioblastoma
multiforme, reported as the immediate cause of the veteran's death, was
primary in nature and is in the category of rapidly growing carcinomas
. . . . [It] was reported to have its onset four months prior to death."
Murphy at 5. From this, the BVA concluded that: "No causal relationship
has been shown between the service-connected residuals of epidermoid
carcinoma and the development of glioblastoma multiforme." Murphy at 6.
Appellant argues that she did indeed submit a well grounded claim: "
The average person would have the same belief as the widow that a cancer
'is a cancer is a cancer' and that if a veteran was service connected for
cancer and died of cancer that there would be a direct relationship
between the two." Br. of Appellant at 8. Appellant's argument continues,
having met her initial burden, she is entitled to the assistance of the
Secretary "in developing the facts Previous HitpertinentNext Document to the claim." Specifically,
appellant seeks a remand with a direction that the Secretary obtain and
review the veteran's post-service medical records and tissue slides of his
1970 cancer so that she can demonstrate the "direct relationship between
the two" cancers.
It is not clear from the decision whether the BVA concluded that the
claim was not well grounded or that the claimant had failed to demonstrate
that there was a relationship between the two episodes of cancer. If the
BVA did conclude that the claim was not well grounded because there was
no "medical-scientific basis", Br. of Appellee at 10, for such a
relationship, a remand is necessary because the BVA decision did not
contain the requisite statement of "reasons or bases" for such a
conclusion. On the other hand, if the finding of the BVA that "no causal
relationship has been shown" between the epidermoid carcinoma and the
glioblastoma multiforme is taken at face value, it necessarily means that
the claimant submitted a well grounded claim which was not "shown" by the
evidence. In such event, a remand is necessary because the Secretary
denied the appellant the opportunity to make such a showing by failing to
provide the assistance required by ù 3007(a).

IV.
For the reasons noted above, the decision of the BVA is vacated and
remanded. On remand, if the BVA concludes that the claim is not well
grounded because the glioblastoma multiforme is not medically or
scientifically related to the epidermoid carcinoma, it must provide "
reasons or bases" for such a scientific or medical conclusion. If,
however, the BVA concludes that the claim is well grounded, the Secretary
shall secure and review the records of the veteran's post-service
hospitalization and determine whether those records show that a causal
relationship does, in fact, exist.
It is so Ordered.

Relevant evidence relied upon by Board to reach its decision, "Certified List"

Certified List

So what did the Board rely on to reach its decision? Well you need to a copy of the "certified list" to find out. As the CAVC stated in Boggs v. Brown[Non-precedential] decision "The "Certified List" is a document prepared by the Board after the case has been decided by the Board and a Notice of Appeal is filed with the Court, which declares itself to be an inclusive listing of evidence and material of record deemed relevant to the adjudication of the issue(s) set forth in the Board's decision."

The CAVC goes on to state: "Further, the appellant is free to counter-designate the certified list for inclusion in the ROA and there is every indication that such a counter-designation by the appellant will prove successful. Burrell v. Brown, 9 Vet.App. 265 (1996)[posted below]. Finally, should the appellant note discrepancies between the ROA and the certified list, the appellant can move to supplement to ROA."

Also of interest is the Secretary's statement that a better way to very documents is through a FOIA request.
"The Secretary observes that a more practical means of verifying the documents in the record on appeal exists for the appellant, namely the submission of a Freedom of Information Act (FOIA) request for the entire VA claims file."

UNITED STATES COURT OF VETERANS APPEALS
No. 96-1624
Jasper Boggs, Jr., Appellant,
v.
Jesse Brown,
Secretary of Veterans Affairs, Appellee.
Before NEBEKER, Chief Judge, and FARLEY and IVERS, Judges.
O R D E R
Note: Pursuant to U.S. Vet. App. R. 28(i), this action may not be cited as precedent.

On May 1, 1997, the appellant, through counsel, filed a motion to compel the production of the Board of Veterans' Appeals (Board or BVA) Certified List prior to the transmission of the Record on Appeal (ROA) under Rule 11 of the Court's Rules of Practice and Procedure. The " Certified List" is a document prepared by the Board after the case has been decided by the Board and a Notice of Appeal is filed with the Court, which declares itself to be an inclusive listing of evidence and material of record deemed relevant to the adjudication of the issue(s) set forth in the Board's decision. The appellant asserts that he has made several requests for this document from the VA General Counsel and that he intends to use this document in preparing his counter-designation of the record pursuant to Rule 10(b) of this Court's Rules of Practice and Procedure.
The Secretary has opposed the release of the document at this stage in the proceedings, stating that the document, prepared subsequent to the Board's decision, is not part of the record of proceedings before the Secretary or the BVA and would not ordinarily be subject to inclusion in the ROA. The Secretary observes that a more practical means of verifying the documents in the record on appeal exists for the appellant, namely the submission of a Freedom of Information Act (FOIA) request for the entire VA claims file. Further, the Secretary apparently concedes that the appellant is free to counter-designate the certified list for inclusion in the final ROA and notes that any discrepancies between the record and the certified list may be cured by a motion to supplement the record at a later date. Finally, the Secretary argues that there is no statutory, regulatory or jurisprudential requirement for the Secretary to produce this document prior to the transmission of the ROA.
The Court notes that the document which has generated this collateral litigation is simply a "certified" list of evidence and material which the
Board considered relevant to the adjudication of the issue(s) before it, nothing more, nothing less. In addition, the Court would note that this document does appear to be relevant to both the appellant's task of counter designating material for inclusion in the record and the Court's task of appellate review. Having said that, the Court reluctantly makes the following observations. While presenting a compelling argument, the appellant has nonetheless failed to provide any authority to support the proposition that this Court has the authority to order production of the certified list prior to transmission of the ROA. As the Secretary has conceded, the entire VA claims file is available to the appellant and his representative pursuant to FOIA. Further, the appellant is free to counter-designate the certified list for inclusion in the ROA and there is every indication that such a counter-designation by the appellant will prove successful. Burrell v. Brown, 9 Vet.App. 265 (1996). Finally, should the appellant note discrepancies between the ROA and the certified list, the appellant can move to supplement to ROA.
Notwithstanding the above comments, the Court would further observe that this Court has always attempted to encourage and facilitate the expeditious and efficient resolution of cases before it. The resolution of this issue championed by the Secretary appears counterproductive to this end. The Court sees no point in needlessly extending the resolution of ROA issues in this manner. Simply because there is no requirement to provide the certified list to the appellant prior to the transmission of the ROA does not mean it should not be done. However, while the Secretary's position before this Court is unfortunate and counterproductive, the Court cannot mandate civility, good sense and compromise where it does not otherwise exist. Further, the Court cannot mandate the Secretary to spend litigation resources wisely. We can only recommend it. Finally, the parties should be aware that conduct such as this will be taken into account should the Court be called upon to adjudicate any future claim to fees and expenses under the Equal Access to Justice Act (28 U.S.C.  2412). Upon consideration of the foregoing, it is
ORDERED that the appellant's motion to compel production of the certified list prior to the transmission of the ROA is DENIED.
DATED: June 23, 1997 PER CURIAM.

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Burrell v. Brown, No. 95-32
"it is ORDERED that the Certified List be included in the ROA."


UNITED STATES COURT OF VETERANS APPEALS
No. 95-32
Donald W. Burrell, Appellant,
v. VA File No. 26 680 947
Jesse Brown,
Secretary of Veterans Affairs, Appellee.
Before KRAMER, FARLEY, and IVERS, Judges.
O R D E R
Pending before the Court is the parties' dispute over the contents of the record on appeal (ROA). After the Secretary filed the designation of the record, the appellant filed a counter designation of the record consisting of three items. The Court's Central Legal Staff conducted a conference with the parties to discuss the content of the ROA; the only issue upon which the parties could not reach agreement was the appellant's counter designation of the Certified List. The Certified List states that it is "the inclusive list of evidence and material of record deemed relevant in the adjudication of the issue(s) set forth in the Board [of Veterans' Appeals'] decision."
At the direction of the Court, each party has filed a memorandum of law addressing the Court's authority to include the Certified List in the
ROA. With his memorandum the Secretary included a motion to strike the citations of supplemental authorities that the appellant has filed pursuant to Rule 28(h) of the Court's Rules of Practice and Procedure and to enter a standing order to strike any future citations.
Upon consideration of the filings of the parties, it is
ORDERED that the Certified List be included in the ROA.
It is
further
ORDERED that the Secretary's motion to strike the appellant's citations of supplemental authorities and to enter a standing order to strike any future citations is denied as moot. It is further
ORDERED that the Secretary, within 14 days after the date of this order, and pursuant to Rule 11 of the Court's Rules of Practice and Procedure, transmit to the Clerk and serve on the appellant the ROA.
DATED: July 31, 1996 PER CURIAM.