COVA– Littke v. Derwinski (1990)–Original Duty to Assist

In our continuing series on Oldies But Goldies, we were researching where a completely new concept of VA law originated on evidence and remembered this gem.

Mr. Harold E. Littke, although the decision doesn’t mention it, was probably a Veteran of the War to End All Wars.At 57 years of age, he put in a claim for IU due to a lot of aches and pains. He was already rated at 20%, but hadn’t worked for 5 years. At his D&P (that would be the Dog and Pony show)exam before the VA, he was miraculously pronounced good to go for employment that didn’t entail sitting or standing for long periods of time. Yes. That’s pretty much what they said.

The veteran also informed the BVA that his recent X-rays taken revealed marked deterioration in his condition and that he had requested an examination by the VA.

In affirming the rating board’s decision, the BVA found that although the veteran’s disabilities did limit his occupational opportunities, they did not preclude him from engaging in ordinary work which did not entail extensive physical exertion. The veteran now appeals to this Court, seeking a reversal of the BVA’s decision. Under 38 U.S.C. § 4052 (1988), this Court has jurisdiction to hear this appeal. (Littke v. Derwinski )

Now, for the newcomers to VA law, this is the scenario. For as long as time can be remembered up until 1988, the BVA was THE final arbiter of the law. The VJRA Act of 1988 created an Article 1 court to hear Veterans appeals from the BVA and allow them to be reviewed by the Federal Circuit. The VA and the BVA did not take kindly to this trespass on what had traditionally been their turf. They blithely continued to make the same errors and the Court of Veterans Appeals (COVA) began their new job cleaning house and rearranging the legal furniture. Mr. Littke had the pleasure of being one of the first new guests the Court entertained.

The Court discovered numerous errors regarding the proper collection of evidence and instances where the BVA ignored the Veteran and never sought highly probative documents which supported his contentions for IU. His D&P show was a complete failure and violated several important tenets of VA medical evidence collection. The Court expressed their displeasure at the cavalier attitude the BVA accorded Mr. Littke and the poor legal reasoning behind their flawed decision. They were sent packing and told in no uncertain terms to try again- correctly this time.

We can assume Mr. Littke was granted that for which he asked because one does not see his name arise in the legal calender   anywhere after this:

Here I might add that we are starting to see this same attitude surface anew. It’s an ugly development and doesn’t bode well for Vetkind. The VASEC must always remember he represents the Vets first, not his government. Apparently he has dyslexia or misread the Mission Statement issued byLincoln: “To care for him who shall have borne the battle, his widow and his orphan child.”

Littke is attached here:


About asknod

VA claims blogger
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