“The scope of veteran’s claim cannot be limited to one specified diagnosis the claim must be considered to encompass any disability reflected in the veteran’s description of the claim and the symptoms the veteran describes. Shinseki that the Secretary has never really been keen on: The Court breathed a bit of new life into a part of its holding in Clemons v. A couple other interesting sidebars about the decision. Most important, the Court looked to its analysis in Bailey, in which it wrote that there was “no authority indicating that the 2015 amendments were intended to alter” the VA’s “ practice of identifying and adjudicating issues and claims that logically relate” to the pending claim.
Wilkie, which found that regulation “…imposes a duty on the Agency to consider claims for secondary service connection if they are raised during the course of adjudicating a complete claim concerning a related, primary disability.” Bailey, 33 Vet. The Court recalled its holding in Bailey v. The Court looked to interpretations of the VA’s informal claims regulation at 38 C.F.R. The Court disagreed with the Secretary, which should not come as much of a surprise. The Secretary argued that even though the VA Form 9 “ ‘…indicated an informal intent to seek benefits for PVD, dizziness, or staggering, either as related to his service-connected hearing loss or tinnitus, or as due to service,’ the Board was under no obligation to discuss any of these issues because the veteran never filed a formal claim, as instructed.” Conditions that are “logically related” to conditions in a pending claim have been reasonably raised as part of the pending claim. On appeal, the veteran argued that his reference to the symptoms of PVD in a VA Form 9 constituted a claim, reasonably raised by the record, which the BVA was required to address. The BVA did not address the veteran’s entitlement to PVD. In his VA Form 9, he wrote that his hearing loss examination did not include testing for PVD (peripheral vestibular disorder), “which to have dizziness and occasional staggering.”
The veteran had been given a non-compensable rating for bilateral hearing loss, and appealed. Is the Veteran’s informal claim to service connect peripheral vestibular disorder part of his claim for an increased rating for Bilateral Hearing Loss? While I think it’s reasonable to assume that the holding in this appeal applies to AMA appeals, as well, but these days, it’s important to remember that is just my assumption. One caveat before we get into the weeds: the appeal underlying this decision is a Legacy appeal. This decision, thankfully, stops the VA from requiring yet another form that serves no purpose other than cutting years off a veteran’s past due award. They have so many different forms that it’s a wonder that every veteran doesn’t get their own unique claim form. I wanted to name this post “It’s raining forms” because the VA loves their forms. There may be some useful information that we can use to improve our claims before the VA raters and the Board of Veterans Appeals. I don’t see how the issue in Wilson required anything more than a memorandum decision applying the holding of Bailey to the facts of Wilson.īut let’s dig in, nevertheless. With respect, I’m don’t see a novel issue: the only material difference between Bailey and Wilson is that the issue of secondary service connection of a condition that was logically related to the condition in another claim was raised in a VA Form 9 in Wilson, and elsewhere before the VA in Bailey. The Court said it was considering, in this case, a novel question: “whether, in similar procedural circumstances, Bailey’s holding extends to claims for secondary service connection expressly raised to the Board.” In doing so, the Court reminded the Secretary that when it came to the informal claim for service connection “…a separate formal claim is not necessary for VA to be required to recognize, develop, and adjudicate a claim for secondary service connection that is reasonably raised by the record during the course of adjudicating a formally initiated claim for a service connected disability.” In a January 26, 2022, panel decision, the Veterans Court reiterated its holding in Bailey v.
0 kommentar(er)
