Veterans Benefits Blog

The United States Patent and Trademark Office on November 10, 2011, issued a notice that it is seeking to double the number of veteran hires over previous years for the position of patent examiner.  It intends to hire more than 1500 patent examiners this year and hopes that ten percent of those new hires are military veterans.

What is a patent?

A patent is a temporary monopoly right, in a sense, that is issued by the government to protect certain types of intellectual property, such as inventions or novel processes, from market competition for a limited period of time.  Patent law seeks to balance society’s interest in free access to new technologies against the need to encourage people and companies to invest the necessary time and energy into developing such inventive or creative products.  Some technologies require high levels of investment of time or effort to develop but yield an ultimate product that can be discovered or reverse-engineered rather easily.  A good example is a drug formula: it can take years of research and enormous sums of money to develop and test a medication and then get FDA approval for it, but the end result is a tablet that can be chemically analyzed and reproduced relatively inexpensively by someone else.  Patent protection gives the developer of the invention the exclusive right to use and sell it for a limited period of time (20 years) before it becomes open to others.  This is why there are no generic alternatives for more recent drugs.

What does a patent examiner do and what are the basic job requirements?

After a period of extensive training, a patent examiner is assigned to review patent applications within a particular field of technology to determine if those patent applications comply with law and reflect a genuinely novel invention. The examiner scrutinizes applications, determining the scope of protection claimed by the inventor, researching relevant technologies, and communicating findings and decisions in writing to inventors or their representatives.  This involves extensive review of technical information, including detailed drawings or process diagrams. It requires the analytical ability to efficiently digest large volumes of scientific information and to use this ability in making timely decisions regarding the patentability of an invention.

The basic requirements for consideration are that one be a U.S. citizen and either hold a four-year degree in engineering or science from an accredited college or have a sufficient combination of education and experience.  One must also be willing to relocate to the Washington, DC area, but examiners are afforded opportunities for flexible work schedules and telecommuting.

For more information on the USPTO veteran hiring program, contact Mr. Fred Steckler at frederick.steckler@uspto.gov or call 571-272-9600.

Should you, as a veteran, become a patent examiner, you could conceivably interact with Goodman, Allen & Filetti lawyers not only through our work assisting our nation’s veterans in seeking benefits, but also through the work of our Intellectual Property Practice Group in assisting our nation’s innovators in seeking patent protection through the USPTO.

David E Boelzner Uncategorized patent agents, USPTO, veterans employment, veterans employment training

Why is VA so slow to process claims?

VA is a huge government bureaucracy. All bureaucracies, whether government or corporate, are slow, inefficient, subject to channeled thinking. They are inherently cautious and have many interconnected parts, and actions require multiple reviews and sign-offs. Political influences on, and scrutiny of, government bureaucracies increase the natural cautiousness.

Understaffed, undertrained, overworked, overwhelmed. VA handles hundreds of thousands of claims. Many have merit but not all do. Some people, seeing a federal fund of money, regard VA benefits as a possible source of easy money. With responsibility for the use of taxpayer money, VA must sort through all the claims to separate the bogus from the legitimate. The agency is challenged to find, train, and retain enough qualified employees to deal with this burden of work.

Conflicting incentives. Sometimes the very measures taken by VA to speed processing of claims result in losing ground. For example, when VA creates incentives for clearance of claims faster, the easiest way to deal with a claim quickly is to deny it, often without doing all the proper development. This results in appeals and redoing the claims, sometimes over and over.

Creeping bias. Most VA employees, however effective or ineffective, are sincerely trying to do their jobs properly. Dealing with such a vast number of claims, however, sometimes creates a sense of skepticism on the part of reviewers. This suspicion that most claims are without merit can result in denial because of a tendency to favor evidence adverse to the claim or insist upon corroboration of evidence that should not require it.

What can be done about it?

The short answer is that there is no cure-all; to a certain degree the system is what Congress has established, limited by realities of claim volumes and the labor market. But there are some things that can help avoid undue delay.

Support claims. If you are preparing to file a claim, collect or think about the necessary evidence to prove it. Claims for service connection require showing a current disability that is related to an event of injury or disease manifestation in service. Unless the disability is obvious, such as an amputation or scar, you will need medical records to demonstrate it. VA will request necessary records if you identify sources, but as the patient you can often save time by requesting them yourself. If your injury or illness in service is reflected in military records, that will suffice; if not, you can describe it in a statement but VA will usually want corroboration, so you should solicit statements from witnesses – fellow soldiers, family members, co-workers who are familiar with the events. Finally, unless you have documented symptoms that have continued since service, you will need to establish an evidentiary connection between the in-service event and your disability. This usually requires a medical opinion, which VA may or may not obtain on its own; again, time can be saved if you get an opinion yourself.

Simplify. Having multiple claims also causes delay, especially if they are not proceeding simultaneously. VA cannot rub its stomach and pat its head at the same time. Claims at different stages require attention by different personnel in VA, and the claims file can only be in one place at a time.

Heed notices. If your claim is denied, pay close attention to the reasons given in the Rating Decision or Statement of the Case and consider how to address them. You may need to obtain additional evidence on the elements discussed above.

Be insistent but polite. Bureaucrats are human beings (strange but true!). Like any human, a government employee responds better to courtesy and respect than to threats or anger. Dealing with VA is often infuriating, but losing your cool accomplishes nothing because, realistically, VA employees have little pressure on them to handle any particular claim promptly. But it is important to keep steady pressure on VA. Call or write VA about pending action at regular but reasonable intervals, about every 30-60 days. Writing to your congressional representative cannot force any particular decision by VA but it can sometimes help focus some attention on a file if it has been languishing without action for a long time. Do not resubmit evidence, as this simply bulks up the claims file and causes delay.

Last resort. There is one mechanism to compel attention and possibly action by VA if delay becomes extraordinary. It is possible to petition the Veterans Court for an extraordinary writ of mandamus, an order directing the agency to do something. It is called extraordinary because the court regards it as an extreme measure, to be done only in the most egregious cases. The court very seldom actually issues a writ; sometimes just filing the petition, however, prompts the agency to get something moving again.

We would be happy to answer questions about any of this information.

David E Boelzner FAQs, Veterans Benefits Claims Disability compensation, FAQs, Regional Office, VA claims, Veterans Benefits Claims, veterans disability benefits

The United States Supreme Court does not often hear cases from the veterans claims system, but it recently issued a decision in Henderson v. Shinseki that was favorable to veterans, though the claimant in this case is not completely out of the woods.

All appellate systems have prescribed periods for appealing to a higher court. In many instances the filing of a document to initiate the appeal, a notice of appeal (NOA), is “jurisdictional,” meaning that failure to file it properly deprives the court of the power to hear the appeal. The issue for the Supreme Court was whether Mr. Henderson’s claim had suffered this fatal blow when, because of a paranoid schizophrenic episode, he missed the filing deadline for his appeal to the Veterans Court. That court and the Federal Circuit above it held that this failure required dismissal of the claim.

The Supreme Court reversed, however. It recognized that veterans’ appeals are part of a unique administrative scheme, and it said that the statute containing the appeal deadline indicated Congressional concern for veterans, such that Congress would not have intended the deadline to be jurisdictional.

The high court noted that the deadline was an important rule, however, and it sent the case back for further consideration as to whether there was any exception that should be applied. There is a principle called “equitable tolling” that may allow the court to hear the appeal if it is found that ultimate fairness and justice so requires.

While it is a victory for veterans that the court allowed for the possibility of some exceptions to the strict deadline, there is no assurance in advance that an exception would apply. This reinforces the crucial importance of filing a notice of appeal on time and in the proper place.

To appeal to the Veterans Court from the agency (Board of Veterans’ Appeals), the notice must be filed within 120 days of the Board’s decision and it is filed with (sent to) the Veterans Court itself, not the agency. To appeal from the Veterans Court to the Federal Circuit, one has 60 days from the entry of judgment by the Veterans Court (usually about 21-22 days after the decision), but the filing is made with the Veterans Court, not the Federal Circuit.

David E Boelzner FAQs, Veterans Benefits Claims FAQs, filing a claim, Veterans Benefits Claims, Veterans Court, veterans disability benefits

Wrestling benefits out of VA is usually a battle of attrition. While a few claims sail efficiently through the system, this is by far the exception. Most claims are a matter of wearing VA down through slow development of the claim and repeated challenge of decisions and correction of errors. The nature of this system moves many veteran claimants to approach the claims process with a shotgun, or perhaps blanket artillery fire, repeatedly throwing everything they have into the fray in the hope that something will score a hit. But is this the best approach?

Yes and no. VA is notorious for losing or ignoring evidence, so tenacity and repetitive attacks are indispensable. But there are distinct drawbacks to this approach that may not be appreciated by claimants, so some thoughts about strategy may be helpful.

One thing is obvious if you think about it: a huge file full of paper is harder to find things in than a smaller file. When a claims file is full of dozens of submissions of the same items, any single item becomes harder to find. There is also a tendency to skip over things you’ve seen frequently, so if something new is included among a pile of repetitious stuff, it is apt to be missed.

Another consideration is that VA will do nothing on a claim without the claims file. The processing of claims, however, requires the file to be shifted around to various sections or even different offices. This causes delays when there are multiple claims submitted: if a shoulder claim necessitates a VA examination, while the file is at the VAMC it is not available to anyone to work on another claim. Likewise, if one claim is on appeal at the Board of Veterans’ Appeals or at the Court of Appeals for Veterans Claims, work is essentially frozen on other claims until the file can be released back to the regional office.

What is the best way to minimize these problems? Try to be as organized in your submissions as possible. Remember the essentials of proof of the claim: if for service connection, you will need evidence of a current disability, of events or symptoms in service, and of a connection between them; if for an increase in rating, you will need evidence of your current medical condition. Try to muster and submit these items together. If you have to make repeated submissions, do not resubmit materials you’ve already submitted (unless you have reason to think VA has lost them); instead, submit any new material and call attention to previously submitted items by date and subject in your cover letter. Always keep copies of everything you submit to VA and keep track of the date you submitted it.

If you have multiple disabilities, it is best if you can submit claims for them all at once. If that is impossible, as when a condition develops or worsens later, submit the most organized and complete set of evidence that you can. Just remember that every new claim requires development, which in turn requires the claim file to be used by one agency group and therefore be unavailable to other groups. You don’t want to delay submitting a meritorious claim, as that could affect your effective date for benefits, but it may be best to prioritize your claims, pursuing first the ones most likely to succeed (strongest connection to service, worst medical condition). It is not effective to throw many claims at VA in the hope that something will stick if some of the claims are very weak.

David E Boelzner FAQs, Veterans Benefits Claims VA claims, veterans disability benefits

     Whether a veteran claimant is seeking to establish service connection for a disability or obtain an increase in rating, a medical assessment by a doctor or other health care provider will almost always be vital. To establish service connection, a claimant needs to show a causal relationship between his or her current disability and some event or manifestation of disease in service, which, except in very obvious cases, will have to be established by someone with medical expertise. Likewise, evaluation of the degree of impairment most often requires a doctor’s input.

   Many claims fail at VA initially because the necessary medical assessment is not obtained. Veterans seeking benefits can greatly shorten the agony of a prolonged involvement with VA by dealing with this need early on. Two challenges arise.
   One is locating a doctor willing to provide the assessment. While doctors can be engaged to provide “independent medical opinions,” this is a service that must be paid for by the veteran and is usually rather costly. By far the best option for obtaining an assessment is usually the veteran’s treating physician. Such a doctor will be familiar with the veteran’s condition and will usually want to be helpful to his or her patients. This circumstance may be complicated if the veteran receives her health care from a VA facility. There used to be a VA policy that actually encouraged VA doctors to assist veterans with supporting their claims via medical opinions. That policy was abandoned by VA. But there is no prohibition against VA doctors providing information, including expert assessment, to veterans pursuing claims; some VA doctors seem to believe, mistakenly, that there is such a prohibition.
   If a veteran receives care from a non-VA doctor, or is able to convince his VA doctor to provide help, what is needed is a statement from the doctor in writing that addresses the issue in a way that will be useful in supporting the claim. (The assurance that a written statement will suffice and no live or deposition testimony will be necessary, is often a selling point for doctors.) Again, much waste of time and stress can be avoided if the medical opinion is done right to begin with. Many statements from private doctors are of little help because the doctors do not understand the VA system and do not provide the crucial information.
   Doctors do not think like lawyers, and the claim process is a legal system. One important thing to get straight with the doctor is the VA standard of proof: many doctors, if they’ve had any acquaintance with the legal system at all, will be comfortable stating opinions only to a “reasonable degree of medical certainty.” This is commonly required in civil litigation, but it is not the basis for establishing a fact in a veteran claim. Veterans need only demonstrate that something is “as likely as not” true, so doctors need to understand that if they are comfortable saying that something is just as likely as unlikely, that is enough to support a claim.
   It is also important to have the doctor include the necessary information to make the opinion valuable. She should list or describe the medical data relied on: the records reviewed, examinations performed, and tests administered. She must then provide not only a bald conclusion such as “the arthritis is related to the injury in service,” but also a reason for the conclusion, such as: “arthritis can result from traumatic injury of the type the veteran received in service, and there are no other obvious causes in the medical history, therefore it is as likely as not that his arthritis is related to service.”
   Securing a solid medical opinion can often win a case outright and, at the very least, it can make it more difficult for VA to deny, which is sometimes the essence of the fight.

David E Boelzner FAQs, Veterans Benefits Claims medical opinions, Veterans Benefits Claims, veterans disability benefits

In a previous blog posting I discussed evidence in veterans cases, including a feature unique to this system, the rule that if evidence is approximately balanced on any given point, the veteran claimant is supposed to be given the benefit of the doubt. In actual practice this favorable rule is not applied because VA determines that the evidence is not balanced. This posting will discuss how that occurs and some hints about developing your evidence to avoid some of the most common reasons for losing claims.
How VA gets around the benefit-of-the-doubt rule
The equipoise standard in veterans cases seems like a highly favorable factor: all one has to do to win is show it’s 50-50. The rub comes in the fact that weighing evidence has a large component of subjective judgment, and by finding some items of evidence more believable than others, VA can conclude that the evidence is not balanced but is one-sided against the claim. In the example in the previous posting about a soldier fall and the immediate treatment records not including any mention of a head injury, the decision-maker might choose to believe that triage doctors are very thorough in noting any symptoms complained of, so the omission of any mention of a head injury would weigh very heavily in this decision-maker’s evaluation of the evidence. To a certain degree the decision-maker is permitted to make these evaluations and the Veterans Court will not disturb the agency’s conclusions if they are plausible.
On the other hand, VA quite often brings completely unwarranted assumptions into its weighing of evidence, such as the notion that if there are no complaints of symptoms or treatment for a condition in medical records, the veteran had no such symptoms or condition; the notion is based on the assumption that all patients always consult a doctor for every condition or complaint they have. It’s not true and it’s not in the evidence, but VA will assume it anyway. These sorts of erroneous evaluations of evidence are often the basis for appeal.
Good evidence
Presenting strong evidence to support a claim is vital to its success. The best way to accomplish this is, first, to know the key facts necessary to prove a claim, what lawyers call “elements.” The three elements of a service-connection claim are (1) an incident in service, i.e. an injury or first manifestation of a medical condition, (2) a current recognized disability, and (3) a causal relation between (1) and (2), i.e. the disability is the same condition or related to the incident in service in some way.
VA is required to send notice to all claimants of what must be proven; it often obscures this information in a blizzard of legal provisions or misleading statements about the duty to assist, but somewhere in the notice letter sent after the claim is filed will usually be a listing of the elements. Ask yourself if you have submitted or can obtain convincing information on each of those elements. (This inquiry can also serve to prompt the threshold question central to any claim: is there a provable entitlement to the benefit sought? VA does not award benefits based on sympathy or veteran hardship; it does not care legally whether you are in financial straits. It can only award based on evidence.)
Especially bear in mind that, whether your claim is for service connection or for increase of rating, it requires medical expert evidence to establish one of the key facts: you must show causal relation with an incident in service for a service connection claim, and you must show degree of severity of the condition in an increased rating claim. If you don’t have such evidence, you need to get it, either through treating physicians or perhaps by pressing VA to get a medical opinion. Having evidence that supports each of the necessary elements is the most important factor in developing a successful claim.
What is good evidence? Anything pertinent to an issue of the claim, that is, one of the crucial facts that must be proven, is relevant evidence and must be considered, but certain qualities affect the weight given to evidence. A few hints:
Direct personal knowledge. Hearsay (something somebody else told you), which is a concern in other types of legal cases, is not strictly taboo in veterans cases, but evidence is unquestionably stronger if it comes from someone with direct personal knowledge of the fact in question. A veteran can, for example, say that he received a certain diagnosis for a condition, but much stronger, more convincing evidence would be the actual medical record in which the diagnosis was stated or a statement from the doctor who made it.
Expert versus lay testimony. Related to the last point is that those to provide evidence must be “competent” to do so. This is a legal term that basically means, possessed of the knowledge, training or experience to reliably say what is being said. Thus, a family member could be perfectly competent to say that a veteran had a limp when she returned from service, but unless that family member is a doctor, he is not competent to say that the veteran had a hip dislocation; the latter requires medical training and judgment. Don’t overlook, though, the capability of lay persons to competently attest to what they can clearly see or perceive.
Corroboration. Although it is supposed to be neutral, VA in fact views anything a claimant says as suspect, because there is always the possibility that the claimant is fabricating or exaggerating something in order to get money from the government. This factor can be offset through corroboration: records or other witnesses who can verify what the claimant is saying. Even a writing made by a claimant can serve to corroborate, if the record was made contemporaneously with the event, e.g. jotting down immediately afterward what happened during a medical exam or an accident. If reliance must be placed solely on a claimant’s recollection, it can be strengthened through detail that increases the plausibility of the story. Needless to say, any hint of falsehood or inaccuracy seriously undermines the value of evidence.
By paying careful attention to whether you have evidence on each of the key facts, and observing the preceding tips for making that evidence as persuasive as possible, you can significantly improve your chances of VA making a favorable decision initially, but even if it doesn’t, you will have vastly improved your chances of a successful appeal and eventual favorable decision.

David E Boelzner FAQs, Veterans Benefits Claims veterans disability benefits

     In a previous blog posting I discussed evidence in general and the benefit-of-the-doubt rule. I also mentioned the three essential facts that must be proven in a service-connection claim: that there was an injury or first manifestation of disease in service, there is a current disability, and the disability is causally related to the event in service. Medical evidence is crucial to two of these three elements. Unless a disability is so obvious that a lay person can discern it, an amputated limb for example, evidence from a medical provider of some type is necessary to establish that there is a physical or mental condition that is disabling. On the important question of medical causation of a disability, whether the current condition is related to something that occurred in service, the evidence is usually in the form of expert opinion from a doctor or other health-care provider. Even if service connection is established, in order to obtain a higher rating for the condition, there must be medical evidence of the severity of the disability.
     In the old days, panels of the Board of Veterans’ Appeals had at least one doctor on them and they evaluated medical issues, but under present law the VA is not permitted to decide medical questions based on its own judgment without expert opinion to support its decision. Precisely because this evidence must generally come from a medical professional, it is often the most difficult aspect of a claim for veterans to establish.

Sources of medical evidence
     It should be noted that medical opinions do not necessarily have to come from doctors. While the strongest opinion might come from a specialist in a particular area, e.g. a psychiatrist rather than a family doctor concerning a mental condition, anyone with medical training can render an opinion. Thus, PTSD diagnoses have been based on the opinions of social workers or trauma counselors who are not MDs. Depending on the issue, a nurse could be at least as persuasive as a doctor, regarding, say, what hospital treatment would have been.
     Diagnosis of a disability and the severity of impairment caused by that disability can frequently be proven by medical records from health care providers who have treated the claimant. Sometimes a treating physician must be asked specifically to comment on the subject, but he or she is usually willing to do so. More challenging, sometimes, is obtaining the opinion that a present condition is related to an event in service, what VA law calls a “nexus” opinion. This type of opinion statement is rather specialized and must be written in a certain way.
     Some medical cause-and-effect relationships are quite apparent: the damage done by a gunshot wound, the scar caused by a laceration, the bone fracture resulting from a trauma. But many such relationships are less clear, such as the relationship between a trauma to a joint and development of arthritis in the joint many years later, or the connection between some frightening or stressful experience in service and later manifestation of mental disease. These relationships are determined through the judgment of medically-trained people.
     Medical causation is often a matter of probabilities. It cannot be determined with certainty, for example, whether a back injury in service caused or hastened the onset of degenerative arthritis in the back many years later, but doctors will often be able to offer an opinion as to the likelihood of a relationship. Thus, one doctor might be of the opinion that too much time has passed for an isolated injury in service to have been the likely cause of arthritis, while another doctor may believe that the trauma to the back made the joints more susceptible to degeneration and thus contributed to causing the arthritis. To support the claim, the veteran needs an opinion that there is a relation to service, at least as likely as not.
      It is because of the benefit-of-the-doubt rule that medical opinion reports in veterans cases contain language using some variation of the phrase “as likely as not.” As long as the probability of causal relation is 50-50, that is, “as likely as not,” the evidence is balanced, and the benefit-of-the-doubt rule tips the decision in the veteran’s favor. That is why you will so often see medical opinions stated in terms of “as likely as not” or something similar.
Doctors familiar with the VA system usually have some notion about how to phrase opinions in this way, but doctors who have not had experience with the VA claims system will not. Indeed, many doctors have some acquaintance with a significantly different standard used in civil litigation: “to a reasonable degree of medical certainty.” Because veterans need only prove elements of their claims as likely as not, i.e. to a 50-50 probability, they do not have to show medical “certainty” to a reasonable degree, which is a more exacting standard. When this is fully explained, a doctor will sometimes be able to see her way clear to offer an opinion that she would not have been able to offer under the stricter standard. That is, a doctor may be uncomfortable, based on existing medical science and literature, saying that Agent Orange exposure caused a particular cancer to a reasonable degree of medical certainty, but may not be so hesitant to say it is at least as likely as not that the defoliant caused the cancer.
     It is also important for doctors writing opinions to support veterans’ claims to bear in mind that something does not have to be a sole cause to be related sufficiently to establish service connection. If the in-service event or condition was a contributing factor to a later disability, that is enough to sustain the claim.
The court that reviews VA decisions has recently expounded more detail about how medical opinions are to be considered by VA. The essential features are that the provider expressing the opinion must have had the appropriate data available, must state clear conclusions based on that data, and must give a reasoned explanation linking the conclusions to the data. Thus, any opinion obtained in support of a claim should contain a statement as to what was reviewed, whether a physical examination was done, what the opinion is, and what the rationale for the opinion is.

NEXT TIME: How VA gets around the benefit-of-the-doubt rule and what you can do to counter this.
 

David E Boelzner FAQs, Veterans Benefits Claims Veterans Benefits Claims, veterans disability benefits

“Evidence” is a subject law students devote considerable effort in studying, and it can present complexities even to the best legal minds. But it is quite possible and useful to understand the basic concepts as they relate to the veterans claims system, which is in some ways unique in this regard. You will have a better chance of obtaining benefits from the VA if you understand what you have to provide in the way of evidence to support your claim. It is perhaps worth a reminder that VA does not award benefits based on service to country, however dedicated, or on sympathy for a veteran’s hardship, however difficult; it can award only where evidence shows entitlement.
Evidence and elements of claims
“Evidence” refers to the information, whether from witnesses, written statements, documents or other records, that is considered and evaluated by an adjudicator in making a decision on a claim. Every legal claim has certain “elements” that must be proved, that is, certain points that must be established as true to the adjudicator’s satisfaction before the claim can be won. Thus, in a manslaughter case, for example, the prosecutors must prove that the accused caused a death and did so through carelessness, while in a first degree murder case the prosecutors have to show that the accused not only caused the death but intended or planned for it – different elements for different crimes. In a classic veteran service connection case, the elements that must be proven are (1) an incident in service, i.e. an injury or first manifestation of a medical condition, (2) a current recognized disability, and (3) a causal relation between (1) and (2), i.e. the disability is the same condition or related to the incident in service in some way.
Standards of proof
The key facts of a legal claim must be proved to a particular degree of certainty, which varies depending on the type of claim. In a criminal case, the law requires proof “beyond a reasonable doubt,” that is, the decision-maker (often a jury) must be so convinced of guilt that any doubt about it would be unreasonable in light of the evidence. This is a difficult standard of proof; the view of the law is that before a person is deprived of his liberty, or even his life in some states for some crimes, there should really be nearly absolute certainty about guilt. In an ordinary civil case, such as a personal injury claim arising from a car accident or a contract dispute, the standard of proof is simply that the evidence is slightly stronger in favor of the claimant (plaintiff), even if only by a small degree. If the evidence is so balanced that the adjudicator can’t decide one way or the other, the plaintiff has failed to meet her burden and the defendant wins. Lawyers call this standard the “preponderance of the evidence,” from the idea that the evidence “weighs” slightly heavier in one direction.
Benefit of the doubt
When Congress established the veterans claims system, it wanted to make it as friendly to the award of benefits as it could and still require proof that benefits were appropriate. So it passed a law, found at § 5107(b) of Title 38 of the United States Code, which says that when there is an approximate balance of evidence (what lawyers often call “equipoise”) on any point crucial to the decision, the benefit of the doubt is to be given to the claimant. In terms of the evidentiary standards discussed above, this means that a veteran claimant does not have to provide proof as convincing as a civil litigant under the preponderance standard: if the evidence in a civil case were more or less balanced, the claimant would lose, but the veteran is supposed to win in that circumstance. It is equivalent to the old baseball rule: tie goes to the runner.
Practical application; “as likely as not”
How do these abstract legal concepts work in actuality? Let’s say the issue in question is whether a soldier hurt her head in a bad fall in service. She remembers (years later) that she had a headache immediately after the fall. A record of sick bay treatment right after the incident does not mention a head injury but discusses other more pressing concerns: bleeding and a compound fracture of one arm. A follow-up record two days later notes, in addition to the progress of healing of the arm, a small bruise on the forehead. VA might dismiss the veteran’s recollection years later as flawed or possibly self-serving and regard the absence of any mention of a head injury in the treatment note on the day of the accident as evidence that there was no such an injury. But the fact that there were more urgent injuries to address in first aid and the mention of the bruise in a record a couple of days later supports the veteran’s recollection. As lawyer for the claimant I’d argue that this evidence weighs more heavily in the veteran’s favor, that there is a preponderance of the evidence, but, at the very least, this would seem to present an approximate balance: there is some evidence of a head injury and some indicating none occurred, but neither is overwhelming. Under the benefit-of-the-doubt rule, the veteran wins.
NEXT TIME: The special issue of medical opinion evidence.

David E Boelzner FAQs, Veterans Benefits Claims Veterans Disability claims

The Supreme Court of the United States is the highest court in the land and technically does have jurisdiction over veterans claims (more on the limits of Supreme Court review in a moment). There is actually a court between the Court of Appeals for Veterans Claims (Veterans Court) and the Supreme Court, to which appeals must be taken first, and that is the Court of Appeals for the Federal Circuit (Federal Circuit). We appeal very few cases from the Veterans Court to either of these courts, however, and this posting explains why that is.

All appellate courts (courts above the original agency or trial court) have limited powers of review of decisions, in the sense that there are aspects of the original decision that will not be reviewed. This is because the purpose of appellate courts is not to adjudicate benefits claims but to police the process, making sure the rules are followed and the law is applied correctly. Appellate courts often “make law” when they interpret statutes or legal principles, so in that way they can significantly affect the results in individual cases, but, strictly speaking, they are not interested in those results.

In veterans cases this is true in the first instance of the Veterans Court, which will not disturb a factual determination made by the agency (Board of Veterans’ Appeals) unless it is “clearly erroneous,” a difficult legal standard to meet – basically that no reasonable person could have reached that finding on the evidence. This is why the Veterans Court almost never grants benefits; it reviews the law and the processing of the claim to see whether it was handled properly, and if it was not, the case must be sent back to be redone with the correct law and processing. The Court must send it back to the agency because the facts must be considered and the appellate court can’t do that.

The Federal Circuit is even more limited in the scope of what it can review and correct in decisions of the Veterans Court. By statute, Congress has forbidden the Federal Circuit to review factual matters at all, but in addition has also precluded that court from reviewing matters that involve “application of law to fact” unless a constitutional issue is involved. The phrase in quotation marks is not a terribly clear one to interpret as it applies to veterans cases, and, indeed, it has resulted in rather varied interpretations by the Federal Circuit as to the scope of its jurisdiction.

A concrete example may help illustrate the problem. The law sometimes provides for something called “equitable tolling,” essentially a forgiveness of a deadline because a good faith effort was made to attempt to comply with the deadline. Equitable tolling is a legal concept, a question of pure law that the Federal Circuit can review. But whether equitable tolling should have been granted in a particular case could turn on what the facts of the case were, which the Federal Circuit is not permitted to examine. Thus where the Veterans Court ruled that the veteran failed to meet the deadline through her own neglect, a factual determination, the Federal Circuit lacked legal power (jurisdiction) to consider the appeal. Leonard v. Gober, 223 F.3d 1374 (Fed. Cir. 2000). On the other hand, where it was not factually in dispute that a veteran mistakenly filed his paper in the wrong VA office, the court could review whether that filing showed proper diligence as required by law, a strictly legal question. Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002). You might be thinking just about now that whether an action is diligent is rather factual in nature…if so, you begin to see how fuzzy is the line between what the court will consider and what it will not.

There is another aspect of an appeal to the Federal Circuit that can affect whether to undertake the appeal. Even if the court has jurisdiction of the issues, it has a procedural option to receive briefing, hear oral presentations from the lawyers, and then simply decline to consider the case further, something called “summary affirmance.” This means that one can put forth a lot of effort in an appeal and then lose without ever getting any explanation why. For these reasons, we in this firm are very cautious about what sorts of cases we appeal to the Federal Circuit, taking up only issues that we are fairly confident will both get past the confusing fact-review prohibition and be sufficiently compelling to interest the court in taking the trouble to consider them and write a decision. Nothing is served by wasted effort.

Review by the Supreme Court works quite differently but is an even more remote possibility in a veterans case. This is because, while a clamant has an absolute right to appeal to the Veterans Court and to the Federal Circuit (though, as noted above, the Federal Circuit can refuse to wade into the issues, but it does have to accept the appeal), the Supreme Court accepts only the cases it wishes to decide. There are some types of cases that the Supreme Court must hear, but the great majority of decisions, including those in veterans cases, are reviewed only upon the Court’s grant of something called a “writ of certiorari,” which simply means the Court has determined that the issues warrant consideration by the nation’s highest court and it chooses to consider them. These are generally matters that (a) involve the U.S. Constitution or the interpretation of a federal statute, (b) are unresolved, either never having been considered or having been decided differently by lower courts, and (c) are of great significance, affecting many cases or momentous affairs. As you might imagine, very few cases involving veterans claims meet all of these criteria.

These are the reasons why very few cases are appealed beyond the Veterans Court. We do pursue cases in the Federal Circuit on occasion, when the right circumstances exist, and we would do so in the highly unusual situation where a Supreme Court type of issue was presented. But it just does not happen that often.

David E Boelzner Veterans Benefits Claims Veterans Court