Effective Use of Medical Opinions And Treatise Information in VA Disability Cases

By Judy Donegan
Fausone Bohn, LLP

For years Veterans Service Organizations (VSOs) have been instrumental in helping Veterans obtain compensation for disabilities arising from their active duty. Now a Veteran has a right to hire an attorney. Often the veteran should not engage an attorney but use a VSO. However, when the claim involves intricate legal and medical issues the use of an attorney may be well-justified. Attorneys are trained to focus on the legal issues in the case and present those issues to the VA in a persuasive manner. In addition, attorneys commonly obtain medical opinions or supply medical treatise information in order to bolster a claim.

After a change in the law on June 22, 2007, veterans are now able to obtain the assistance of legal counsel to obtain benefits at a much earlier point in the process. So long as a Notice of Disagreement (NOD), related to a Veterans Administration (VA) Regional Office (RO) rating decision, has been filed after June 22, 2007, attorneys may, for a fee, assist with the appeal of that rating decision to the Board of Veterans' Appeals (BVA or Board) in Washington, D.C. Previous to this change in the law, attorneys were only able to be engaged, for a fee, to help appeal a decision by the BVA to the U.S. Court of Appeals for Veterans' Claims (CAVC).

An appeal to the CAVC is generally undertaken by attorneys at no cost to the Veteran. Any time spent on the appeal is billed to the VA, under the Equal Access to Justice Act (EAJA), and the government will pay a reasonable fee for that representation so long as the Appellant Veteran "prevailed" over the government by proving administrative error. RO matters are handled differently. As mentioned above, Attorneys are permitted to charge a reasonable contingency fee for assistance at the RO level for matters where an NOD was filed after June 22, 2007.

As stated above, when a claim involves intricate legal and/or medical issues, the use of an attorney may be well-justified. Two examples involve cases we handled that were recently decided by the CAVC based on the combination of expert legal knowledge and medical supplementation. In one case, the Veteran's dependent had sought dependency and indemnity compensation (DIC) as the "helpless child" of a deceased veteran. Under the law, the child of a deceased veteran is entitled to DIC when the veteran dies as a result of service-connected disabilities. In order to obtain the benefit, a showing must be made that the child is unmarried and "before attaining the age of eighteen years, became permanently incapable of self-support." The legal issue in this particular case was whether the Veteran's dependent was incapable of self-support. The medical issue involved the child's mental capabilities and adaptive functioning. Our firm was successful in obtaining an order setting aside the BVA decision and remand from the CAVC due in large part to a medical opinion we obtained from a private psychiatrist. Our psychiatrist reviewed the claims file and all pertinent records prior to rendering his opinion.

The VA had supplied its expert's medical opinion (independent medical exam or IME) and the BVA had found that opinion to be more probative than our expert in part because that expert had supposedly "reviewed the appellant's file including all clinical records and statements provided by the appellant." We accurately pointed out that our private physician's report was not included in the records reviewed by the IME. The evidence of record also showed that the IME also failed to review a Social Security Administration decision relative to the appellant. Ultimately, the CAVC disagreed with the Board. Specifically, the CAVC noted that the Board rejected the private physician's report as based on an inaccurate factual history provided by the appellant, but favored the IME report provided after the examiner "thoroughly reviewed . . . statements provided by the appellant." The CAVC then stated that the BVA was inconsistent in its treatment of the evidence of the record and these inconsistencies "cast doubt upon whether the Board properly weighed the evidence, and lead the Court to conclude that the Board did not provide a satisfactory explanation for its conclusions."

In another recent case, the widow of a deceased veteran also sought DIC and service connection for the cause of her husband's death. In this case, the veteran was a Vietnam Veteran who died of a squamous cell carcinoma (cancer) located at the back of his tongue. While the Veteran was presumed to have been exposed to Agent Orange, the BVA found that his particular cancer was not on the list of cancers presumptively connected to exposure to Agent Orange. The evidence previously submitted to the BVA included favorable doctor opinions that the Veteran's cancer was part of the aerodigestive tract and that his cancer was just as likely to have been caused by exposure to Agent Orange as the cancers on the presumptive list. Under the law, the BVA must also consider whether a veteran's claimed disability or death can be given direct service connection.

Our challenge as attorneys was to argue that this evidence had not been adequately considered by the BVA in violation of case law and that direct service connection was proper. In presenting the evidence we supplemented the argument with references to medical treatise information readily available on the internet and used definitions from commonly used medical dictionaries. While the CAVC did not address this information in the first instance it instructed the Board to consider it upon remand. Our argument that the BVA had not adequately evaluated the favorable medical opinions prevailed and we can now supplement the record further at the BVA.

Once again, attorneys are trained to focus on the legal issues in the case and present those issues to the VA in a persuasive manner. We often obtain medical opinions or supply medical treatise information that can help establish a claim that may fail in the absence of such evidence. Veterans are wise to seek an attorney where the claim involves intense medical or legal issues.