(no subject)

[Guest guest]

I thought I would pass this on FYI for those who will be interested.

VBA Letter 20-99-60

Director (00/21/27) In Reply Refer 211C

All VA Regional Offices and Centers

SUBJ: Claims That Are Not Well-Grounded

On July 15, 1999, the United States Court of Appeals for Veterans Claims

( " the Court " ) issued Morton v. West, No. 96-1517, which held that VA cannot

assist a veteran in developing a claim which is not well grounded. The

Court

held that the provisions in M21-1, Part III, 1.03(a) and Part VI, 2.10(f)

which instruct the VA to fully develop a claim before deciding whether or

not

it is well grounded are interpretive rules which are invalid because they

are

contrary to 38 U.S.C. A§ 5107(a). Effective immediately, these manual

provisions are rescinded. A national conference call will be scheduled

shortly that will provide instructions on how to implement this new policy

and to address any questions. We realize that you will likely receive

questions from your service officers regarding well-grounded claims. This

information has already been shared with veterans service organizations at

the national level. Therefore please feel free to share this information

with your local contacts.

New Policy

Determine Well-Groundedness & Claimant Notification: Effective immediately,

each regional office must determine if a claim is well-grounded prior to

beginning development of evidence. There may be multiple issues in each

application for compensation. Each individual issue must be reviewed to

determine if it is well-grounded. If any particular issue is not well-

grounded, the regional office must send the claimant a letter describing the

evidence needed to establish a well-grounded claim. Draft sample letters

are

enclosed for your review and comments.

Immediate Development: Service medical records and VA medical center

records

are to be requested in all cases. These are records considered to be in VA

custody. Private medical records or records from other Federal or State

agencies are not in VA custody and will not be requested prior to a

determination that the claim is well-grounded.

2.

Time Limit For Claimant Response: The claimant is to be advised that he/she

will be given 30 days from the date of the written notice to submit the

evidence to establish a well-grounded claim. At the expiration of 30 days,

the regional office will determine whether the claim is well-grounded based

on the evidence of record and take appropriate action based on that

determination.

Criteria For Service Connection

A claim for service connection is well-grounded if three criteria are met:

(1) there is competent evidence of a current disability/medical diagnosis;

(2) there is competent lay or medical evidence that a disease or injury was

incurred in or aggravated by military service; and (3) there is competent

evidence of a nexus or causal relationship between the in-service

incurrence/aggravation and the current disability. (See Caluza v. Brown, 7

Vet.App. 498 (1995), affâ_Td 78 F.3d 604 (Fed. Cir.1996) (per curiam)). For

the service incurrence requirement, a veteranâ_Ts statement regarding an

event

that is ordinarily susceptible to observation and verification by lay

persons

will be sufficient. Otherwise, medical evidence will be necessary. Under

38

U.S.C. A§1154(, a combat veteranâ_Ts statement that an injury or disease

was

incurred in or aggravated by combat service will be sufficient to satisfy

the

service-incurrence requirement. Medical evidence is required to establish

the current disability and nexus requirements. The nexus requirement and

the

service-incurrence requirement may also be satisfied by a presumption that

certain diseases manifesting themselves within the prescribed presumptive

period are related to service. For purposes of determining whether a claim

is well-grounded, a claimantâ_Ts evidence is presumed to be credible.

Criteria For Pension

A claim for pension is well-grounded if three criteria are met: (1) the

veteran had active military service of 90 days or more with at least 1 day

being during a period of war (or discharge or release from service during a

period of war for a service-connected disability); (2) there is evidence of

income which does not exceed the statutory limit; and (3) there is evidence

of permanent and total disability productive of unemployability. (See

Vargas-

v. West, 12 Vet.App. 321 (1999)). Medical evidence is necessary

for

the third requirement.

Criteria For Service Connection For Cause of Death

A claim for service connection for cause of death is well-grounded if three

criteria are met: (1) there is a death certificate or equivalent medical

evidence showing the cause of death; (2) there is medical evidence that the

disability causing or contributing to death was incurred in or aggravated by

military service; and (3) there is medical evidence of a nexus or causal

relationship between the in-service incurrence or aggravation and the

disability causing or contributing to death. (See Ramey v. Brown, 9 Vet.

App. 40 (1966)).

Continued Duty To Assist

When a claim is well-grounded, VA must fulfill its duty to assist which

includes, as appropriate, obtaining VA and private medical records, ordering

a VA examination, or any other development required by the facts of the case.

Policy For Claims Already Developed

Effective immediately, claims which are not well-grounded, but for which

development has already been undertaken, will be reviewed at the point in

time when all of the evidence which has already been requested is received.

If the evidence of record does not establish a well-grounded claim, hold

these cases until the national conference call where we will define

notification requirements

Enclosed is a more thorough discussion of this issue, sample scenarios of

well-grounded claims, and draft samples of notification letters. We know

you

and your staff will have questions regarding this information. We invite

you

to submit your questions in writing to the Compensation and Pension Service

mailbox, VAVBAWAS/CO/21 by September 7, 1999. These questions will be

addressed at the national conference call.

ph

Under Secretary for Benefits

Enclosures

Analysis

General Overview

In Morton v. West, No. 96-1517 (U.S. Ct.Vet.App. July 14, 1999), the United

States Court of Appeals for Veterans Claims (the Court) held that under 38

U.S.C. A§ 5107, absent the submission and establishment of a well-grounded

claim, the Secretary cannot undertake to assist a veteran in developing

facts

pertinent to his or her claim. Section 5107(a) provides that: " 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 Secretary 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 Court noted that both it and the United States Court of

Appeals for the Federal Circuit have interpreted section 5107 as

conditioning

the Secretaryâ_Ts duty to " assist . . .in developing the facts pertinent to

the

claim " upon the submission by the claimant of a well-grounded claim. In

this

decision, the Court reviewed the provisions in M21-1, Part III, 1.03a and

Part VI, 2.10f and found that they were interpretive rules which did not

create enforceable exceptions to section 5107(a) rights. Once a well-

grounded claim has been received, VA must execute its duty to assist. That

duty includes, in appropriate circumstances, gathering private medical

records and conducting a thorough and contemporaneous medical examination.

However, absent a well-grounded claim, VA has no duty to assist the claimant

and development cannot be initiated. There are currently no exceptions to

this policy.

As a consequence of the Morton decision, the cited manual provisions and any

other manual provisions that can be viewed as requiring a fulfillment of a

duty to assist the claimant even though a well-grounded claim has not been

received are rescinded. In addition to the above-cited paragraphs, others

that have been identified include Part III, 1.05a (second sentence), 2.01a,

5.19, 5.20b(1)(4) and d; Part IV, 28.02b (5th sentence); Part VI, 1.01b,

2.08b and c, and 2.10b and g. These provisions will be amended or deleted

as

quickly as possible As additional paragraphs are identified they will also

be amended or deleted as appropriate.

In v. Derwinski, 1 Vet.App. 768 (1990), the Court defined a well-

grounded claim as 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 section 5107(a). The Court held in Tirpak v.

Derwinski, 2 Vet.App. 609 (1992) that, to be well-grounded, a claim must be

accompanied by supportive evidence. It is important to note that " evidence "

can consist of many diverse items such as VA or private medical records,

service records, lay statements, or the veteranâ_Ts own testimony. Evidence

must be presumed credible for the limited purpose of making the claim well-

grounded.

Criteria For Service Connection

In order for a claim of service connection to be well grounded, the claimant

must present competent evidence of the following: (1) a current disability

(a medical diagnosis); (2) incurrence or aggravation of the claimed disease

or injury in service (lay or medical evidence); and (3) a nexus between the

in-service injury or disease and the current disability (medical evidence).

(See Caluza v. Brown, 7 Vet.App. 498 (1995), affâ_Td, 78 F.3d 604 (Fed. Cir.

1996) (per curiam)). Please note that the nexus requirement may also be

satisfied by establishing that a condition for which a regulatory

presumption

of relationship to service exists is manifested within the prescribed

presumptive period. The threshold for a well-grounded claim is low. For

example, a veteran submits a claim stating that he injured his knee in-

service while playing basketball and provides current medical evidence of

arthritis of the knee and a medical opinion by his private physician that

there is a link between the currently diagnosed arthritis and the in-service

injury. The veteran has submitted a well-grounded claim, one that is

plausible and/or capable of substantiation. In another example, the veteran

submits medical evidence of diabetes diagnosed six months following

separation from active service. Again, a well-grounded claim has been

submitted as the nexus requirement has been satisfied by the medical

evidence

that the diabetes manifested within the one year presumptive period after

discharge from active service.

Criteria For Service Connection For Cause of Death

In Ramey v. Brown, 9 Vet.App. 40 (1996), the Court applied the same three

requirements for a well-grounded claim for service connection of a

disability

to a claim for service connection for a death, that is medical evidence of a

current disability, evidence of incurrence or aggravation of a disease in

service, and a nexus between the current disability and in-service disease.

The Court held that in claims for service connection for the cause of death

of a veteran, the requirement for evidence of a current disability will

always have been met because that was the condition that caused the veteran

to die. However, the last two requirements, an in-service event and a

nexus,

must be supported by evidence sufficient to well ground the claim. Thus, a

surviving spouse who provides evidence of an in-service event and a medical

nexus statement linking the in-service event to the cause of death has a

well-

grounded claim.

Criteria For Pension

In disability pension cases, the requirements for a well-grounded claim are:

(1) honorable active military service for 90 days or more with at least 1

day

being during a period of war (or discharge or release from service during a

period of war for a service-connected disability); (2) evidence of income

which does not exceed the statutory limit; and (3) evidence of total

disability productive of unemployability. (See Vargas- v. West, 12

Vet.App. 321 (1999)). To meet the well-grounded threshold in a pension

claim, the veteran states she served in the Korean Era, has an annual income

of

(2) $1,000.00, and is unable to work. With her application, she submitted

medical evidence of bilateral shoulder arthritis which was totally

disabling.

Since her claim is capable of substantiation, it is well-grounded.

Policy For Multiple Issues

Claims may consist of one or more issues. A determination must be made for

each issue as to whether it is well-grounded. For example, a veteran

submits

an application for compensation for a skin disorder and hypertension. He

states that both disabilities were treated while he was on active duty. The

application is received 6 months after separation from active service.

Since

no evidence was received with the application, the veteran must be notified

as to the evidence required to well-ground each issue. His statement of

treatment in service for both conditions is sufficient to meet one of the

three requirements for a well-grounded claim. Thus, for the skin condition,

he will be informed that he needs to submit medical evidence of a current

disability and medical nexus evidence. To well ground the hypertension

issue, he will only need to submit current medical evidence that he has a

diagnosis of hypertension. Remember, presumptive diseases arising during

the

identified presumptive period do not require medical evidence of a link

between service and that condition. At the end of the 30-day period, the

veteran has submitted medical evidence of the existence of hypertension but

he has not submitted any medical evidence on the skin condition. The

hypertension issue is well-grounded and VAâ_Ts duty-to-assist requirements

must

be fulfilled. The issue of service connection for a skin condition is not

well-grounded and must be denied on that basis.

Regards,

Jack Henshaw

VVA Chapter 669

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Illinois State Delegate

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