Friday, October 16, 2009

How VA Can Use Off-Labeling Against Veterans Claims

Yesterday we linked to a Blog that stated that psychiatric prescriptions were being issued by the VA, that this was being done off-label, meaning that, "more than 60% had no record of a diagnosis for which the drug was approved." see Off-Label Use of Psychiatric Medications Common for Veterans, October 13, 2009 | By Jennifer Gibson, Site: http://brainblogger.com

Well today we want to point out why our concerns were raised. In the Neely case the VA sought to deny Mr. Neely his disability entitlement because: "In its decision, the Board found that the appellant had “not presented any competent evidence showing treatment or a diagnosis of a chronic infection or any problems with tonsillitis
6
since his discharge from service.” R. at 9. The Board also found that, because the appellant “testified that he has not had any problems with his tonsils since he was started on medications by VA in 2002,” and because the record “does not show that any of the medications were prescribed for . . . any problems associated with tonsil infections,” there was “no competent evidence that the [appellant] has a disorder at present manifested by chronic tonsil infections.” R. at 9-10. see Neely v. Shinseki, NO. 07-1570, Before SCHOELEN, Judge.
MEMORANDUM DECISION
, Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

So, in this case and more likely than not many other cases the VA will assert that when you do not have a diagnosis to go along with the medication, the VA will make a fact finding against you.

Fact findings against you are bad because you can not easily get a higher court to over rule a finding of fact by a lower court. This is where so many self represented veterans claims to the FedCir fail, because they want to argue the facts again and the FedCir will not do that. the Veterans Court appears to be a bit more relaxed on this, but the least hurdles you have to clear, the easier it is to win your claim.

So bottom line, get a diagnosis that corresponds to the medication. Don't accept verbal words here, get it in writing and if ever there is any doubt about what is happening, contact a lawyer, get free legal clinic help, get competent representation.

Lay Evidence, Powerful Evidence but Has its Limitations

In this post we are going to start a series of posts looking at lay evidence. Lay evidence is powerful evidence which the veteran can use to help win his claim,
Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (stating "competent lay evidence can be sufficient in and of itself" to obtain disability benefits).

However, like any powerful evidence you need to know what it is, what it is not, and how and when the VA can discount it. So we recommend that you contact a legal representative of your choice to help you, as we will only be making general statements abut this subject and reference cases that will hopefully fill in some of the gaps.

It is important for veterans to make sure that their lay evidence describes the material and relevant facts observed and that they give a time frame for these observations, You do not want to merely state conclusions based upon opinion because that may require medical knowledge, unless it is a "simple" medical condition, see Jandreau; see also 38 C.F.R. § 3.307(b), "[t]he factual basis [for establishing a chronic disease] may be established by medical evidence, competent lay evidence or both.... Lay evidence should describe the material and relevant facts as to the veteran's disability observed within such period, not merely conclusions based upon opinion."

It takes clear and convincing evidence to counter competent lay evidence.
McLendon v. Nicholson, 20 Vet.App. 79, 84 (2006) (competent testimony "can be rejected only if found to be mistaken or otherwise deemed not credible, a finding . . . the Court cannot make in the first instance"). What we have seen most here is that the VA asserts negative evidence when it tries to counter lay evidence. Negative evidence is another concept that is difficult to understand, you really need to get legal help with these concepts to fully understand them.

In Jandreau the FedCir put forth that lay persons are competent to reconize "simple" medical conditions.Jandreau v. Nicholson, 492 F.3d1372,1376-77, 1377 n.4 (Fed. Cir. 2007) (holding that "[l]ay evidence can be competent and sufficient to establish a diagnosis when . . . a lay person is competent to identify the medical condition" and providing, as an example, that a lay person would be competent to identify a "simple" condition like a broken leg, but would not be competent to identify a form of cancer).

So what are "simple" medical conditions? A list, as such, was not found but some cases that addressed simple medical conditions were found; flat feet [pes planus], varicose veins, tonsillitis, and tinnitus [ringing in the ears]

These are rough excerpts, included are links to the full decision which need to be read in order to get a grasp of this simple, yet complex issue of lay evidence.

Falzone v. Brown, No. 93-942 (Decided November 14, 1995 )
appellant's pes planus is the type of condition that lends itself to observation by a lay witness.

Barr v. Nicholson, 21 Vet.App. 303, 309 (2007)
... lay claimants are competent to self-diagnose varicose veins because that condition is relatively simple.

... clearly competent to offer testimony regarding the onset and observable symptoms of his conditions


McLendon v. Nicholson, No. 04-0185 (Decided June 5, 2006 )

As noted by Representative Evans, the development of arthritis in a person's knees and the fact that that person had been a paratrooper with numerous jumps " indicates" that his disability "may be associated" with his service. See 146 Cong. Rec. H9912, H9917.

Similarly, exposure to "noise from a rifle range, bombing, artillery fire, trucks, and heavy equipment" with credible testimony of ringing in the ears"ever since service" indicates that a hearing disability may be associated with service. Charles, 16 Vet.App. at 372-74.

In Charles, the appellant sought to establish service connection for tinnitus and testified that he had experienced ringing in his ears while in service. Charles, 370 Vet.App. at 374. The Court stated: "Regarding such lay evidence, the appellant is competent to so testify because ringing in the ears is capable of lay observation." Id. (citing Caluza v. Brown, 7 Vet.App. at 504 (where determinative issue does not require medical expertise, lay evidence may suffice by itself), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table))


Neely v. Shinseki, NO. 07-1570, Before SCHOELEN, Judge.
MEMORANDUM DECISION
, Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

The Court agrees with the appellant that, like varicose veins, tonsillitis is a relatively simple condition, and that a lay person is capable of self-diagnosing that condition.

Not Simple Medical Conditions

The etiology of an internal physical condition is a matter that requires medical knowledge when the cause of a disability cannot be observed by a lay person. Grover v. West, 12 Vet.App. 109, 112-13 (1999); see also Jandreau, supra. Because the internal workings of the knee cannot be diagnosed by a lay person, the Board did not err in finding that Mr. Cope's lay statements were not competent to establish the etiology of his right knee condition. See Grover, 12 Vet.App. at 112-13.

Divorce Rate Among Female Soldiers is Three Times that of Male Soldiers

Full Article at: Divorce Rate Triple for U.S. Female Soldiers, Report Finds

New America Media, News Report, Aaron Glantz, Posted: Oct 15, 2009

SAN FRANCISCO –- More than 30,000 single mothers have deployed to Iraq and Afghanistan. The Army, the most heavily deployed branch of the military, gives women just four months to stay stateside with their newborns before deploying to the war zone, leaving them little time to bond with or nurse their infants.

The divorce rate for female soldiers is nearly triple that of the men who wear the same uniform.

These are just a few of the unsettling statistics contained in a new report published Wednesday by Iraq and Afghanistan Veterans of America , the nation’s first and largest organization representing Americans who’ve served since Sept. 11, 2001.

Eleven percent of Iraq and Afghanistan veterans are female.

Women's Report by Iraq and Afghanistan Veterans of America , the nation’s first and largest organization representing Americans who’ve served since Sept. 11, 2001.