Every once in a blue moon, the CAVC has to rebuke the VA Secretary and his gang of BVA and VARO lackeys for getting too aggressive in their rules interpretations. Like an Attention Deficit Disordered child, the CAVC panel is forced to make them take a time out. The Court rarely reverses decisions, preferring to set aside questionable rulings and remand them for a new decision. A decision reversed on Appeal is a declaration of gross judicial incompetence on the lower court’s ruling. Keeping in mind the Good Ol’ Boy nature of this network, a reversal is akin to your best buddy lying to you and then having his best friend, the VA Secretary, trying to help cover it up.

Mr. William (NMI) Shade has appealed a BVA ruling that was decidedly not in his favor to the CAVC (the Court). He attempted to reopen an old claim, as many of us do, and only had two of the three requirements needed to prove his claim. When he first filed in 2002, he had even less- just the proof that he had a disease in service and his testimony that he currently had it. VA gave him the wave off. In 06, he returns with two of the three, lacking only that all important nexus letter or some kind of proof to tie the claim to service. Keep in mind, Mr. Shade is simply trying to reopen the claim at this point. The VARO shoots him down based on the 38 C.F.R. § 3. 156(a) interpretation of “new and material “evidence. They claim he hasn’t presented any. He appeals this up the ladder to the BVA and they side with the VARO.

Mr. Shade wisely and timely appeals this to the Court and, lo and behold, he discovers to his joy, that the VA has not only screwed him, but potentially hundreds, perhaps thousands of other Vets in exactly the same manner for the last nine years.

To understand the magnitude of this decision, we’ll break it down into Dick and Jane Speak which is so much easier to read than Latin and a bunch of italics followed by numbers.

First of all, § 3.156(a) has been around since 1991, and perhaps earlier, in spirit if not in name. The Court was created in 1989 but had no precedent cases to refer back to other than civilian precedent. So the VA had to create a large body of VA rulings in as short a time as possible to cite for law purposes. Enter Colvin versus Derwinski in 1991. This cleared the air as to what was necessary to open a claim, reopen a claim and established baseline rules on what VA would permit and what they would deny re evidence. The Colvin test became a much used catch phrase as well as the “Bright line” rule. This is a throwback to the necessity to have some precedent when the Court was first inaugurated in 89. The Bright Line rule refers to a Federal Circuit Court decision in Chisolm v. Secretary of Human Health Services. In a nutshell, it posited that any new evidence introduced needed to produce the possibility that it would change the outcome. The Chisom decision was cited in Colvin and thus became an integral part of the Colvin Test. Therefore, if you wished to reopen a claim previously denied by the VARO or the BVA, you needed to produce 2 tangible things- evidence that was both new (never before submitted) and material to the claim (that bears directly on the claim and will aid in making a decision). The bright line rule created a third hurdle in addition to the first two:

The Court reasoned that this test was appropriate because, without its qualification, it would be possible for evidence to satisfy the criteria articulated in the regulation yet be of limited weight and insufficient probative value to warrant reopening and readjudication. Colvin thus created a test whereby newly submitted evidence must be determined to be new and material but also present a reasonable possibility of changing the outcome. (This from Mr. Shade’s decision).

Seven years later the Fed. Circuit shot down Colvin and instituted the Hodge ruling which is what we had until  2001:

The Hodge court stated that nothing more than the language of the regulation should be applied when determining whether new and material evidence has been submitted. The Federal Circuit noted that the regulation imposed a lower burden to reopen than the Colvin test, and specifically described the Colvin test as having “imposed on veterans a requirement inconsistent with the general character of the underlying statutory scheme for awarding veterans’ benefits,” which is “strongly and uniquely pro-claimant.”  The Hodge decision thus invalidated the Colvin test while acknowledging that the application of the appropriate standard is the responsibility of the Board or this Court in the first instance. (from Mr. Shade’s decision)

Everything settled down for a while. Vets were still required to present a well grounded claim (determined, of course, by VA) until the enactment of the Veterans Claims Assistance Act (VCAA):

The VCAA was intended to “reaffirm and clarify the duty of the [Secretary] to assist a claimant for benefits under laws administered by the Secretary, and for other purposes.” One of the specifically stated purposes of the act was to remove the requirement that a claimant submit a well-grounded claim before the Secretary’s duty to assist would attach. Following passage of the VCAA, VA proposed to amend § 3.156(a) to its present form. 66 Fed. Reg. 17834-01 (April 4, 2001) (stating that the purpose of the amendment to VA regulations was to “implement the provisions of the [VCAA]”).

The VCAA did move the goal posts forward for the Vet, but the Vet was still required to provide the three Caluza elements (current disease, disease in service, and a nexus letter to tie the two together.)

VA promptly revised  § 3.156(a) to comply (in the VA Secretary’s mind anyway) with the tenets of the New VCAA:

One stated purpose of the VCAA was to lower the bar for claimants attempting to avail themselves of the Secretary’s duty to assist. During VA’s rulemaking, the Secretary responded to several commenters who expressed concern over use of the words “must raise a reasonable possibility of substantiating the claim.” There, the Secretary responded: “With respect to other claims for benefits, the VCAA provides that VA assistance is required unless there is no reasonable possibility that this assistance would aid in substantiating the claim. We believe it is fair and reasonable to apply the same standard–thatthere be a reasonable possibility that VA assistance would help substantiate the claim–in determining whether a claim is to be reopened, triggering VA’s full duty to assist by providing a VA examination or obtaining a medical opinion.” 66 Fed. Reg. at 45629 (emphasis added). Thus, VA expressed its intent to use words substantially similar to those found in the VCAA as the “same standard” for the words found in the revision to § 3.156(a). However, it is clear to the Court that VA’s use of the language in § 3.156(a) to further define “new and material evidence” is capable of being interpreted in a manner that had the opposite of the pro-veteran result that the use of the similar language has in the VCAA. As previously noted, the purpose of this regulation is to explain what kind of evidence will qualify as “new and material.” There are three operative sentences in the current version of § 3.156(a). One sentence discusses only new evidence and another sentence discusses only material evidence. The regulation then concludes with a third sentence discussing new and material evidence that uses the phrase “reasonable possibility of substantiating the claim.” This language can be read to suggest that the evidence must affect the merits outcome of the claim. The language of the regulation indicates that newly submitted evidence must meet the new and material requirements as well as the general explanation laid out in the last sentence before a claim would be reopened. This language, however, must be read in light of 38 U.S.C. § 5108, which states that, in order to reopen a claim, submitted evidence must simply be new and material. Therefore, the words “raise a reasonable possibility of substantiating the claim” cannot impose some new requirement beyond that required by the statute without invoking an analysis of whether the Secretary had exceeded his rulemaking authority. However, such an analysis is not required in this case because the Secretary has, as noted above, provided an explanation of the language in the Federal Register. That explanation is not inconsistent with the underlying statute. However, it is necessary for the Court to emphasize that the phrase “raise a reasonable possibility of substantiating the claim” does not create a third element for new and material evidence. Rather, that phrase provides guidance for VA adjudicators in determining whether submitted evidence meets the new and material requirements.7 In particular, the immediately prior sentence discussing material evidence provides that, to be considered material, newly submitted evidence must pertain to “an unestablished fact necessary to substantiate the claim.” (from Mr. Shade’s decision)’

Which brings us to November 2^nd, 2010 and this decision. The Court has decided that the VA Secretary is guilty of “mission creep” as they call it in the military. VA decided that they knew better what the rules should be and how they should be interpreted. Kind of like Congress deciding what kind of Health Care Bill we needed and then voting it in without even reading it. This Court said, in its conclusion, that the VA Secretary was wrong, wrong, wrong:

                                                     IV. CONCLUSION 

The Court having considered the parties’ briefs and the record on appeal, that portion of the Board’s September 9, 2008, decision finding that the private doctor’s report, which provided a current diagnosis of a skin condition, “does not relate to an unestablished fact necessary to substantiate this claim” is REVERSED. Further, the Board’s decision denying the appellant’s claim to reopen his claim for service connection for a skin disorder is REVERSED and the matter REMANDED for consideration on the merits.

What this means for us Vet munchkins is simple. We no longer have to arrive with a doctor’s nexus in our hands to open or reopen a claim with “new and material” evidence. A caveat is in order here. This also means that when you arrive without said nexus, that VA is free to supply their own “medical opinion” as they so often have in the past. To say VA’s medical opinions are probative, fair and balanced, and completely free of bias requires a stretching of the truth and an active imagination. Remember, VA examiners have linked alcoholism to HCV as a risk factor, too. Do yourself a favor and get a nexus before the party starts.

Nevertheless, this is good news for lazy VSOs everywhere. Now they won’t have to help you get a nexus. In fact, they can continue to fail to mention to you that you even need one and finally be in compliance with law. I’m sure they are all breathing a collective sigh of relief in between beers.

Ladies and gentlemen Vets, meet Mr. Shade…

http://www.uscourts.cavc.gov/documents/Shade_08-3548_published_opinion_11-2-2010.pdf