**[JUDICIAL REVIEW CONFERENCE CALL]{.underline}**

November 2, 1992

Good morning. We have a full agenda this morning. A brief reminder that
the December Conference Call will be back on the regular schedule
Thursday, December 3rd, at 11:00 a.m.

**[HEARING OFFICER HEARINGS ON APPEAL]{.underline}**

Recently I have been advised (this came through the VFW Training
Conference at the Williamsburg session a few weeks ago) that some
confusion exists about scheduling hearings with an RO Hearing Officer
after VA Form 9 has been filed

Although VA Form 9 has been revised to eliminate references to hearings
before regional office personnel, beneficiaries may still request local
hearings after VA Form 9 has been filed.

In many cases, Hearing Officers are able to resolve disputed claims
favorably based on new and material evidence. If a hearing before a
Hearing Officer is requested, regional offices can schedule a hearing
with a Hearing Officer even if VA Form 9 has been submitted. Of course,
if the veteran specifically requests on VA Form 9 a hearing before a
Member of the BVA, that request also will be honored. In summary, a
veteran may have two hearings before VA personnel on the same issue.

Next on our agenda is our decision assessment package.

**[DECISION ASSESSMENT PACKAGE]{.underline}**

Copies of last month\'s decision assessment documents recommending
changes in policy, regulations, or procedures, and those raising
significant points by the Court were E-mailed to all Regional Offices on
October 28, 1992. The package contained 3 assessment documents, all
involving Court decisions.

The Court cases are:

**[Pernorio v. Derwinski,]{.underline} U.S. Vet. App. No. 90-779.** This
case involves a claim for increase for a service-connected skin disorder
which had been rated under various diagnostic codes. There were three
holdings in this case:

1\) The Board of Veterans Appeals applied a standard which exceeded that
found in the relevant regulation when it implied that constant itching
must be shown by excoriation;

2\) Evidence concerning facial scarring was inadequately addressed;

3\) The Board of Veterans Appeals failed to provide adequate reasons or
bases concerning applicable diagnostic codes.

The Court noted that various diagnostic codes had been utilized to
evaluate the veteran\'s skin condition, and that in such cases, the BVA
should explain the diagnostic code it employs in terms of any different
codes used previously.

**[Quarles v. Derwinski,]{.underline} U.S. Vet. App. No. 90-858.** The
issue in this case is entitlement to an earlier effective date for an
increase in appellant\'s service-connected back disorder. The Court
held:

1\) That because of inadequate reasons and bases, it was unable to
determine how the Board of Veterans Appeals chose an effective date for
an increase in appellant\'s service-connected disability;

2\) The Board failed to consider and address properly the impact of the
veteran\'s pain on the severity of his low back disability under the
provisions of 38 C.F.R. §§ 4.40 and 4.45f;

3\) The Board did not provide reasons or bases for its findings and
conclusions adequate to permit effective judicial review.

The Compensation and Pension Service has determined that the correct
effective date is July 12, 1985, the date of appellant\'s reopened
claim. All evidence submitted prior to that date had been considered by
the regional office and the BVA, and the claims had been finally
disallowed. Based on the Court\'s decision, it is imperative that
reasons and bases for the selection of an effective date be stated
whenever there is a question of the appropriate date.

**[Isenhart v. Derwinski,]{.underline} U.S. Vet. App. No. 91-1184.** In
this case, the Court held that as a matter of law, a claim for DIC shall
be considered as a claim for death pension and a claim for death pension
shall be considered a claim for DIC. In addition, claims for DIC and
death pension shall also be considered a claim for accrued benefits.
Under the provisions of 38 U.S.C. §§ 5101(b)(1) and 5103(a), VA is
obligated to notify a claimant if an application is not complete and of
the evidence necessary to complete the application. As appellant was not
informed that her application was incomplete, the Court determined that
an original claim for death pension remained pending because she was
never informed of the disallowance of the claim. The BVA disallowance of
entitlement to an earlier effective date was reversed and the appeal was
remanded for readjudication. The point to remember is that when a VA
Form 21-534 is received, it is a claim for three benefits: DIC, death
pension, and accrued. If a decision is made which does not address all
of these claims, it remains a pending claim.

Some of you may be wondering about which end product you are entitled to
based on the Isenhart decision. As you are only entitled to one end
product, a 140 or a 190, take a 140 when the issue of service connection
for cause of death is raised by the claimant, or when the issue is
disposed of by a formal rating decision. When the claimant indicates he
or she is not claiming service connection for the cause of death, and
review by the rating board is not required, take a 190, even though you
must inform the claimant that service connection for the cause of death
has been denied.

Are there any questions on these three cases?

If there are no questions we will now discuss recent court decisions
concerning \"duty to assist\" and Post-Traumatic Stress Disorder
Development.

**[DUTY TO ASSIST]{.underline}**

In a number of decisions of the Court of Veterans Appeals (the Court),
VA\'s statutory duty to assist a claimant who submits a well-grounded
claim has been detailed. While it may seem that we are always criticized
for our failure to discharge our duty, there are cases where we
[are]{.underline} noted to have properly discharged that duty. I would
like to offer one case today as an example, and the important point here
is the Court\'s finding that our duty to assist was satisfied by
[asking]{.underline} the claimant to submit medical records from private
treatment facilities regardless of the fact that the requested records
were never received.

In [Bourn v. Principi,]{.underline} U.S. Vet.App. No. 92-327, the Court
noted that appellant served on active duty from August 1965 to August
1967. He contended that he was involved in a truck accident in Vietnam
which displaced his knee caps and injured his back, neck, and arms; and
that hot water scalded his right forearm and hand. Service records were
negative for the claimed accident.

On April 23, 1991, after apparently attempting to obtain the records
themselves, the regional office requested the appellant to submit
treatment records from two private medical facilities and a private
physician referenced in the claim. Appellant subsequently informed VA
that records from the private physician were not available. While the
record does not contain any medical reports from either of the private
treatment facilities, the Court held that no violation of VA\'s duty to
assist had been demonstrated.

**[PTSD DEVELOPMENT]{.underline}**

We recently received a decision of the Court in the case of [McNeely v.
Principi,]{.underline} U.S. Vet.App. No. 90-1539 which deals in part
with the development of Post-Traumatic Stress Disorder (PTSD) cases. It
is useful as an example of how these claims should be developed, and how
our decisions will be upheld by the Court if complete development action
has been taken. In this case, the veteran served in combat in Vietnam
and received wounds for which service connection was established at a
compensable level under 38 C.F.R. § 3.324.

The initial claim for service connection for PTSD was filed in June
1988. The claimant requested that records be obtained from a Vet Center
and these were immediately requested. He also was examined by a VA
psychiatrist in July 1988. The veteran made complaints of intrusive
memories of combat experience; witnessing friends killed; being
irritable at home with his wife. He functioned okay at work with no
flashbacks or nightmares reported. The psychiatrist reported that he did
not meet the criteria for PTSD. An outpatient treatment report was noted
to diagnosis adjustment disorder with depressed mood. A regional office
decision denied service connection.

Subsequently, a letter from the team leader at the Vet Center was
received stating that the veteran displayed symptoms of PTSD. The
previous denial was continued. A Notice of Disagreement was received and
a Statement of the Case was sent. On VA Form 9, the veteran requested
another examination. A personal hearing was held and he again requested
another examination. The Hearing Officer denied the request for
reexamination citing the adequacy of the record. The denial of the claim
was continued and the appeal was certified to BVA.

The BVA remanded the appeal in order to obtain service personnel
records; complete records from the vet center; and an examination by a
board of two psychiatrists. The records were received and an examination
was conducted with the impression being \"possible PTSD.\" The
psychiatrists stated that psychological testing would be needed to
further document the diagnosis. The psychological testing was done, and
after a review, the psychiatrists made a diagnosis of dysthymic
disorder. The rating board continued the denial stating:

\"While it is recognized that veteran has had combat stressors, the
current psychological and psychiatric testing by the VA does not
establish that the veteran has PTSD at this time. In addition, service
connection is denied for a currently diagnosed dysthymic disorder, which
was not found in service nor at the initial VA examination in 1968, but
is of more recent development.\"

The BVA upheld the denial and the Court noted that there was a plausible
basis in the record for the decision, given the opinions expressed in
the reports of the panel of two psychiatrists and the clinical
psychologist. The denial was affirmed.

**[HEARING OFFICER DECISIONS]{.underline}**

A question has been raised concerning Hearing Officer decisions in
employee cases. Paragraphs 20 and 21 of VBA Circular 20-89-11, Revised,
dated August 27, 1991 set out procedures for hearings involving employee
cases. Currently, a hearing for an employee may be held by the
station\'s Hearing Officer. After the hearing has been completed, the
transcript and any new evidence is submitted to another Hearing Officer
in another regional office for the 1ecision.

The Court of Veterans Appeals has held that assessments of the
credibility of testimony must be made as part of VA\'s decision-making
process. The best, and probably only individual, who can accurately
assess the credibility of testimony is the Hearing Officer who held the
hearing. The Hearing Officer who holds the hearing **must** make the
decision. If, for good cause, the Hearing Officer at the local regional
office or a Hub cannot conduct a hearing because of a conflict of
interest or other reasons, another Hearing Officer capable of rendering
a decision must be appointed.

**[TIMEFRAMES FOR APPELLATE REVIEW]{.underline}**

In response to inquiries from veterans and others, it has come to our
attention that some offices have been providing estimates as to the
amount of time required for appellate review at the Board of Veterans
Appeals. In addition, there is some indication that old FL 1-26\'s have
been used by some offices indicating that review of the appeal by BVA
will take 2 to 4 months. This has caused some frustration among
veterans, either because they feel the quoted timeframes are too long,
or because they have already waited longer than the quoted timeframe
without receiving notice of a decision.

Because the timeframe for appellate review of individual cases is
subject to so many variables, and because it can deviate widely from any
estimated norm, regional offices should refrain from providing any
estimates regarding individual or average timeframes for appellate
review and they should insure that only current FL 1-26\'s (June 1990 or
later) are used. Individuals who insist on getting such information
should be advised to contact BVA directly.

**[QUESTIONER:]{.underline}**

Who is it that\'s telling us we shouldn\'t tell them an estimate?

**[C&P SERVICE:]{.underline}**

We are doing that in consultation with the Chairman.

**[RUSSELL/COLLINS]{.underline}**

In the package of assessment documents sent to you last Wednesday, we
included a copy of the **[Russell/Collins]{.underline}** decision on the
Court\'s jurisdiction to review claims of clear and unmistakable error.
The decision should be required reading, not only for its discussion of
what is necessary for a \"valid claim\" of clear and unmistakable error,
but also for the practical applications of the decision in the cases of
Mr. Russell and Mrs. Collins.

Our assessment document on this decision will be issued shortly, but I
want to mention a couple of important points made in the decision before
the anticipated influx of claims is received. Although further appellate
review is under active consideration with respect to the jurisdictional
issue in this case, the Court has provided some valuable guidance for
adjudicating this type of claim; and, in any event, the Court clearly
has jurisdiction over claims of clear and unmistakable error in
decisions made after November 1988.

The Court has established several criteria that must be satisfied before
there can be a \"valid claim\" of clear and unmistakable error:

\(1\) the claim must specify the factual or legal errors at issue
unambiguously;

\(2\) it must assert more than a disagreement over matters of judgment;

\(3\) it must not depend upon favorable resolution of any
non-adjudicative question (such as alleged errors of medical diagnosis);

\(4\) the contentions must be limited to the factual record which was
previously before the Department;

\(5\) the arguments must be based solely on the law and regulations
which existed at the time;

\(6\) the alleged error must be material to the outcome of the claim
(that is correction of the error will alter the decision).

If any of these criteria are not satisfied, the claim of clear and
unmistakable error is not valid and may be rejected on that basis. Such
decisions are, of course, appealable. If the claim is valid, it must
then be adjudicated on the merits.

The Court also defined a clear and unmistakable error as one which was
undebatable and about which reasonable minds cannot differ. Therefore,
the Court said:

In view of this standard, the \"benefit of the doubt\" rule \... could
never be applicable; an error either undebatably exists or there was no
error within the meaning of \[section\] 3.105(a).

Please review these points when you receive the transcript of this
Hotline and share them with claims representatives in your area so that
everyone will be aware of what is required in the presentation of claims
of clear and unmistakable error.

I have one issue that was not on the agenda that was sent to you last
Friday.

**[QUESTIONER:]{.underline}**

I have questions on the [Collins]{.underline} case.

**[C&P SERVICE:]{.underline}**

Can you hold off for just a second?

**[QUESTIONER:]{.underline}**

Yes.

**[C&P SERVICE:]{.underline}**

Last Wednesday the U. S. Court of Appeals for the Federal Circuit
declined VA\'s request for en banc review of its earlier decision
upholding the Court of Veterans Appeals decision in [Fugere v.
Derwinski]{.underline}. It now appears that we may not seek further
review by the Supreme Court. We expect to receive that decision shortly.
If we do not seek further review, an interim instruction letter will be
issued directing review and restoration of previous hearing loss
reductions that were occasioned solely by the change in Rating Schedule
criteria. Rating Boards should move as quickly as possible to make those
restorations if such instructions are issued.

I will take that question now on the [Collins]{.underline} case.

**[QUESTIONER:]{.underline}**

What is the status of appeal on that?

**[GENERAL COUNSEL:]{.underline}**

Yes, we\'ve got until earlier December to file a notice of appeal in
that case. We are in the process now of working up a recommendation. I
can\'t tell you yet how its coming out. Our thoughts are just beginning
to crystallize on it, but we will know within a couple of weeks, whether
the Department will request that the Justice Department appeal the case.

**[QUESTIONER]{.underline}**

Are we to implement the decision now, or hold off?

**[C&PSERVICE:]{.underline}**

Hold off, please. \[Note: The basic issue decided in
[Russell/Collins]{.underline} involved the Court\'s jurisdiction, but
the Court also provided some guidance as to what will be expected in a
\"valid\" claim of clear and unmistakable error. That guidance may be
helpful to you, and you will receive instructions in the Decision
Assessment Document which will be issued shortly.\]

**[QUESTIONER:]{.underline}**

If the applicant sets up an argument that meets every one of those
criteria, that is going to require us to go through a full decision, is
it not?

**[C&P SERVICE:]{.underline}**

Yes.

**[QUESTIONER:]{.underline}**

What kind of workload are we looking at here? Does anybody have any
estimates?

**[C&P SERVICE:]{.underline}**

No estimates. It could be significant, but we just don\'t know yet.

If there are no further questions at this time, I would like to turn the
microphone over to a staff member from the Board of Veterans Appeals,
who has a follow-up statement to make on the issue discussed at the last
hotline, concerning remands for opinions from medical doctors.

**[QUESTIONER]{.underline}**

I do have one question, before you go? What is the status of the Gardner
case?

**[C&P SERVICE:]{.underline}**

Oral arguments are scheduled for November 9, at the Court of Appeals for
the Federal Circuit, so its still under review.

**[QUESTIONER]{.underline}**

It used to be that when a veteran alleged error on fact or law on a BVA
decision that we would send that directly to the BVA. It is my
understanding that we are not going to do that anymore.

**[C&P SERVICE:]{.underline}**

That is correct. If the allegation is clear and unmistakable error in a
BVA decision, the proper avenue is to request reconsideration by the
Chairman. Regional Offices do not have jurisdiction to entertain that
issue.

**[QUESTIONER]{.underline}**

What if the issue is clear and unmistakable error in a VA decision prior
to the BVA decision. Would that still go to the BVA?

**[C&P SERVICE:]{.underline}**

This is a claim of error in an RO decision that has been affirmed by
BVA.

**[QUESTIONER:]{.underline}**

Yes, sir.

**[C&P SERVICE:]{.underline}**

You don\'t have jurisdiction of that either. The RO decision was
subsumed by the BVA decision.

**[BVA:]{.underline}**

This is a follow-up to the question that was asked during the October
Hotline.

**[SOLICITATION OF MEDICAL OPINIONS ON ADJUDICATION
ISSUES]{.underline}**

Certain decisions of the United States Court of Veterans Appeals have
remanded cases with orders for the Department of conduct examinations of
veterans. In a few instances, these orders issued by the Court have also
included a directive that the physician offer an opinion on an ultimate
adjudicative question, such as whether a disorder was incurred or
aggravated in service. Other decisions have directed that the examiner,
pursuant to 38 C.F.R. 4.10, provide a \"full description of the effects
of disability upon the person\'s ordinary activity,\" including an
opinion on how the disability effects industrial adaptability. Where
such orders are issued by the Court, the Board must comply, or the
Secretary\'s representatives must file a motion for reconsideration
seeking modification of the Court\'s order.

It has been and remains the policy of the Board that great care should
be exercised in framing questions involving adjudicatory matters for
responses from VA medical providers. There are two reasons for this
policy.

First, the VA both delivers medical care and administers a compensation
and pension benefit system. Those VA employees who deliver medical care
should not be placed in a situation where there is, or there may be
perceived to be, a conflict of interest, or a breach of the
doctor-patient relationship, in matters relating to a claimant\'s
medical needs and his or her claims for compensation or pension
benefits.

The second reason for this policy is that most adjudicative issues
relating to compensation and pension claims ultimately involve findings
of fact that are not matters of medical expertise. For example, where a
claim for service connection for a disorder turns upon a question of
whether there was a continuity of symptomatology, it is for the
adjudicator - not the provider - to assess the credibility and probative
value of testimonial or other lay evidence as to continuity of symptoms,
and to weigh this evidence against the documentary evidence of record.

The general policy at the Board is that questions posed to medical
providers should not go to ultimate adjudicative questions. This policy
is consistent with the [Physician\'s Guide for Disability Evaluation
Examinations]{.underline} \[Department of Veterans Affairs, March 1,
1985\], which states:

[The examining physician should avoid any expression of opinion
regarding]{.underline} [the merits of any claim or percentage evaluation
of disability]{.underline}.

That\'s at page 1-5 \[emphasis in original\].

Under the regulations and the case law, providers must review the
history of the disability, including the history as provided by the
claimant, and must accurately and fully describe the symptoms of the
disorder with emphasis upon the limitation of daily activity imposed by
the disabling condition. That\'s, of course, from 38 C.F.R. 4.1, 4.10.
They may properly be asked to comment on whether there may be an
etiological relationship between symptoms shown in the service medical
records and current disability. They should not be asked to resolve
factual questions that are not matters of medical expertise - such as,
for example, whether an event asserted as a \"stressor,\" in a claim for
post-traumatic stress disorder, is established by the record ([Wood
v.]{.underline} [Derwinski]{.underline}, 1 Vet. App. 190, 193 (1991)).

Where resolution of a claim involves medical opinion that goes to
ultimate adjudicative questions, such an opinion should be secured from
physicians, or other experts who are not directly involved in providing
care (such as the Chief Medical Director, an Independent Medical Expert
or a medical consultant at the Board).

This area was recently the subject of an extensive discussion at a
convocation of the Chairman and the Board Members, and I mean all of the
Board Members. The general policy of the Board was reviewed in detail.
In addition, efforts are now underway to routinely assure that motions
for reconsideration are filed by the Secretary\'s representatives in
response to Court orders where a medical opinion is sought from a
provider on an ultimate adjudicative issue. We hope by this policy to
educate the Court on the reasons for the policy that the Board has
followed over the years, and to get them to agree that is a sound
approach to this particular area.

Let me just elaborate on a couple of points. First of all, I would
emphasize that the Board is always happy to listen to questions such as
this coming from the field and to provide you with considered responses.
I must emphasize, however, that under the Veterans Judicial Review Act
they are living in entirely a new world. It is a much more difficult
world, both for the Board and very much so in the field, and we do
appreciate that - much as we very much appreciate your efforts on our
behalf.

We now live in a world in which there are many, many questions (that are
now what lawyers would call \"questions of first impression\") in areas
of what used to be considered settled policy. We have to take these one
at a time, and as they come up Board Members attempt to thrash them out.

I must emphasize also that Board members, under the statutes, exercise a
timing in decision-making, and they are trying to exercise their best
judgment in accordance with the law, regulations, the precedent opinions
of the chief law officer of the Department, and, of course, the case law
coming from the court.

I can anticipate that there will be one further question in this area.
Those cases which have already reached the field in which there are
requests (for what could be construed as opinions from treating
physicians on ultimate adjudicative questions) - we\'re going to let
rest in the field at this time. We hope respectively, however, to make
sure that we don\'t get into these areas again, unless we are so
directed by the Court and we have been unsuccessful in providing for
reconsideration of that Court Order.

**[C&P SERVICE:]{.underline}**

Are there any questions from the field on anything that has been
presented today?

**[QUESTIONER:]{.underline}**

I want to go back to the third assessment document. It says that M21-1
should be changed. \[Tape indecipherable\] from the testimony of the
Senate hearings on Judicial Review, that we would never say that
something should happen in the future, except when the manual was held
to be invalid rule-making. What does this tell us? Do we ignore M21-1
and go with the Court decisions?

**[C&P SERVICE:]{.underline}**

**\[Tape change. The response was that the procedural guidance contained
in an approved Decision Assessment Document is for immediate
implementation by regional offices.\]**

**[QUESTIONER:]{.underline}**

The information on providing estimates on a timeframe to the field
process - do you provide this information to the Veterans Service
Division, because they often give that information out with contacts to
the claimant?

**[C&P SERVICE:]{.underline}**

We will do that.

**[QUESTIONER:]{.underline}**

Do all of our death pension applications require rating action \[as to
service connection for cause of death\]?

**[C&P SERVICE:]{.underline}**

No, they do not.

**[QUESTIONER:]{.underline}**

Use the current criteria?

**[C&P SERVICE:]{.underline}**

Yes. You do have to deal with the \[service-connected\] issue, that\'s
what the instruction is.

**[QUESTIONER:]{.underline}**

Then does [Isenhart]{.underline} hold that it\'s a plausible claim or
it\'s not a plausible claim?

**[C&P SERVICE:]{.underline}**

Would you put your question more fully? I\'m not sure I am understanding
what your question is.

**[QUESTIONER:]{.underline}**

If we get a 534 that claims service-connected death and provides no
income data - without that income data is it a plausible claim or not a
plausible claim? The assessment document (or the quote from the Court, I
guess it is) does not mention \"duty to assist\"; it says \"refrain from
awarding benefits,\" and does not say \"will decide it\" in a particular
way. If we ask for the information, and it doesn\'t come in, under what
jurisdiction do we deny the claim?

**[C&P SERVICE:]{.underline}**

Let me back-track here. What the Court has said, is that it is a claim
by law and - separate from your to duty to assist - if it is an
incomplete application, that is it doesn\'t contain the income
information, you are required to go out and get it, to basically develop
that information. And then if there is no response, of course, you can
deny the claim. \[See the addendum for clarification of this point.\]
It\'s not really a duty-to-assist question. It\'s a separate statute
that deals with development of applications which are incomplete, and in
this particular case, unlike any other, we have the statute telling us
what the application must be considered for. Does that answer the
question at all?

**[QUESTIONER:]{.underline}**

I recognize that it doesn\'t say \"duty to assist.\" My point is, if
it\'s not a plausible claim we go into that other law that says we need
to tell the claimant what they need to do to perfect the claim. If they
don\'t perfect their claim, then it does not require a substantive
denial.

**[C&P SERVICE:]{.underline}**

Oh, I see what you mean, if there is no response?

**[QUESTIONER:]{.underline}**

Correct.

**[C&P SERVICE:]{.underline}**

Okay, so basically we\'ve sent out for information - and they haven\'t
responded - do we need another letter, is what he is saying.

**[QUESTIONER:]{.underline}**

The Court has not given me any claim definition, because they haven\'t
discussed \"duty to assist.\" If it doesn\'t meet the \"plausible
claim\" \[definition\] we meet our duty by telling them we need it; if
they don\'t send it in, then I don\'t see any additional action is
required on our part.

**[C&P SERVICE:]{.underline}**

It\'s an abandoned claim, that is what you are talking about.

\[See Addendum to this transcript.\]

**[QUESTIONER:]{.underline}**

To continue that discussion: can a claimant exclude a particular
benefit? We occasionally get a claim (534\'s) with the income section
crossed out saying DIC only. Do we have to address pension?

**[C&P SERVICE:]{.underline}**

That is the point of the Court\'s decision, is that we can no longer do
that \[i.e., fail to address pension\]. The 534 is a claim for three
benefits as a matter of law, and you have to give them an answer on all
three.

**[QUESTIONER:]{.underline}**

Since they have stated they excluded that, we could give them a decision
\"in accordance with your request,\" and we don\'t have to go out and
develop it again do we?

**[C&P SERVICE:]{.underline}**

I think - just start out with this as a claim here. If part of it is
intentionally or unintentionally incomplete, you are going to have to
write to the beneficiary to tell \[her\] that. If \[she\] doesn\'t
respond on that development, then \[she\] is abandoning \[her\] claim,
and you\'re finished with it. If \[she\] does respond, then you give
\[her\] a substantive decision, I believe. \[See addendum for
clarification of this point.\]

**[QUESTIONER:]{.underline}**

I find it hard to believe that the Court ruled that if they specifically
said they do not apply for that benefit we have to go out and develop.

**[C&P SAERVICE:]{.underline}**

Well, the problem with that - I know you find it hard to believe, I am
sure you\'re not the only one - but the problem is that they are reading
the law, and when the Congress has said how these things will be
construed, the point of the Court decision is that nobody else has a
choice: not the claimant, not the Department - so, we don\'t have a
choice in this matter.

**[QUESTIONER:]{.underline}**

The case in point here is one where the claimant specifically noted on
the application?

**[C&P SERVICE]{.underline}:**

In this particular case the claimant crossed out anything dealing with
income.

**[QUESTIONER]{.underline}**:

All right, then can\'t we just consider it based on that statement, and
say without evidence - we are going to look kind of funny going out and
developing information for which the claimant has already said they are
not going to provide.

**[C&P SERVICE:]{.underline}**

I think that is what we just alluded to, the fact you make your decision
based upon what you have; and then if they decide to come back in and
provide additional information, we will make a substantive decision.

**[QUESTIONER:]{.underline}**

Okay to that answer. I think that is different than before. Before I
understood it said we had to go out and attempt to develop that
information even though they said they were not going to provide it.
What you just said is: based on the information they told us they are
not going to provide, make a decision.

**[C&P SERVICE:]{.underline}**

\[See Addendum to this transcript.\]

**[C&P SERVICE:]{.underline}**

You\'re breaking up, we can\'t hear you. Can anyone hear, pass on the
question? Are there other questions?

**[QUESTIONER:]{.underline}**

This is St. Louis on [Russell/Collins]{.underline}. If I understand it
correctly, you said that there are basically six requirements that have
to be met, and if they are not met (I think you used the language) that
claim would be not valid and rejectable. Could we use the \"not
well-grounded claim\" in making that decision?

**[C&P SERVICE:]{.underline}**

\"Not well-grounded\" goes to whether or not we have a \"duty to
assist.\" I think the Court has coined a new phrase here, called a
\"valid claim,\" because there really is no duty to assist in a claim of
clear and unmistakable error. We have to look at the prior decision and
adjudicate it on the facts as they existed then, so there is no duty to
assist in developing facts, and we have to adjudicate it under the laws
and regulations that existed at that time. So, they steered away from
the \"well-grounded\" claim terminology and used the term \"valid
claim.\" I think if a claim does not satisfy those six criteria, the
answer to the claimant should be that: a valid claim of clear and
unmistakable error \[was not submitted\]. That would be the basis for
denial.

**[QUESTIONER:]{.underline}**

Where is that in the regulations?

**[C&P SERVICE:]{.underline}**

It\'s in the Court decision, not the regulations.

**[QUESTIONER]{.underline}**

This is Muskogee. \[Concerning the\] [Isenhart]{.underline} case, could
I ask one more question? What if we\'ve got a claim for DIC only and
it\'s obvious \[that the death will be found\] service connected. Are
you wanting us to develop for income up-front on every one of these
cases or can we - whenever the decision is made by the Rating Board to
deny it - deny DIC, and then tell them if they want to apply for pension
to complete and return the enclosed form?

**[C&P SERVICE:]{.underline}**

Your talking about when we\'re going to address this issue. I think we
should just respond to that in the addendum to the hearing transcript.
That will be out shortly.

For those who tried to ask questions, but due to technical difficulties
you were unable to do so, you can E-mail your questions in, and we will
make that part of the transcript as well. \[Note: the addendum responds
to questions which were subsequently submitted, including those raised
during the conference call.\] Any other questions?

**[QUESTIONER:]{.underline}**

In the [Russell v. Collins]{.underline} case, what\'s the pertinence of
[ICC v Brotherhood of Locomotive Engineers]{.underline}?

**[BVA:]{.underline}**

In the argument before the Court, the question of [Russell and
Collins]{.underline} was principally was one of 3.105a in its
application to RO determinations. They did creep into the area of
determinations by the Board of Veterans Appeals, and the submissions by
the Secretary\'s of representatives had cited [ICC v]{.underline}
[Brotherhood of Locomotive Engineers]{.underline} for the proposition
that certain types of reconsideration motions (which are discretionary)
are not reviewable by an appellate Court. That was import of [ICC v.
Locomotive Engineers]{.underline}. The Court in [Russell and
Collins]{.underline}, however, rejected that as an appropriate authority
in this case, because the Board\'s statutory provision concerning
reconsideration is not discretionary, it is mandatory, and also 3.105a
is also mandatory (it does not say you may or may not correct a clear
and unmistakable error, it says you must correct a clear and
unmistakable error), and that is where [Locomotive
Engineers]{.underline} came in .

**[QUESTIONER:]{.underline}**

On the [Russell/Collins]{.underline} case, when you said before that
cases that \[we don\'t have jurisdiction over cases which\] had been
previously been decided by the Board of Veterans Appeals - if we start
sending all these claims to BVA, are they going to turn around and send
them right back to us, and if so is there some way we can short-circuit
that?

**[C&P SERVICE:]{.underline}**

We do not want you to send them to the BVA.

**[BVA:]{.underline}**

Basically, I believe that the appropriate response (when an individual
submits a claim at the regional office level alleging clear and
unmistakable error in a Board decision) is to simply advise \[that
individual\] by letter that there are procedures provided for seeking
reconsideration from the Board of Veterans Appeals, and that that is
where they should file their claim. Certainly there is no provision in
the Rules of Practice of the Board that provides that the regional
office must forward such claims to the Board: the appellant must take
those motions for reconsideration to the Board himself or herself and it
will be resolved at the level at the Board.

**[QUESTIONER:]{.underline}**

I\'ll change my question. If we give them the procedures for filing the
request for reconsideration at BVA \[and\] if they do file such a thing,
is BVA going to send them back to the regional offices?

**[BVA:]{.underline}**

Well, in the abstract, a request for reconsideration is for
reconsideration of a Board decision, and that normally is a
reconsideration of a decision entered based upon the factual record as
it then stood, and based upon the law and regulations as they then
stood. Accordingly, in the vast majority of reconsideration decisions
there is not going to be any basis for the Board to send the case back
for appeal. We do have a provision on our rules of practice for
remanding decisions on cases that are on reconsideration under certain
circumstances. The number of instances, however, in which that is done
is very limited, at this time, and I would anticipate that it would
continue to do so.

**[C&P SERVICE:]{.underline}**

Other questions? If not, then we will conclude this conference call.
Thank you.

Addendum

Judicial Review Conference Call Transcript (11/2/92)

[Isenhart v. Derwinski]{.underline}, U.S. Vet. App. No. 91-1184 (9/3/92)

I. General considerations

This addendum is intended to clarify instructions issued to regional
offices concerning proper interpretation and implementation of the
Court\'s decision in [Isenhart]{.underline}.

In substance, the Court has held that VA Form 21-534 is a claim for
three benefits by law, and that each issue - DIC, death pension, and
accrued - must have been fully adjudicated or abandoned before a
decision on that claim will become final.

The law does not give the VA an option to limit its consideration to the
benefit which is apparently sought by an applicant (e.g., DIC only). The
Office of General Counsel advises that a claimant may not elect which
benefits will be adjudicated, since the beneficiary would not be
\"estopped\" from taking a contrary position in the future (that the
claim remained pending with respect to issues which were neither
adjudicated nor abandoned). In this vein, the Court has previously
rejected an equitable-estoppel argument raised by VA (\"laches,\" see
[Manio v. Derwinski]{.underline}, 1 Vet. App. 144 (1991)).

There are six possible claims-processing situations which may arise,
depending on how VA Form 21-534 is completed by an applicant.
Entitlement to accrued must be considered in each case, however, and
disallowance is mandatory if there is no entitlement (the procedures for
disallowance are described in M21-1, Part V, Chapter 8).

II\. Processing VA Forms 21-534 when block 11b is marked \"yes\"

(Service-connected death alleged)

Assume initially that the applicant believes the death is
service-connected and provides either (1) full, (2) partial, or (3) no
income and net worth information.

If service-connection for cause of death is alleged and full income and
net worth information is provided, the case must be fully developed and,
ultimately, the adjudicator will notify the beneficiary concerning DIC,
death pension, and accrued benefits. If it is determined that there is
entitlement to both DIC and death pension, the adjudicator will pay DIC
and advise the beneficiary of entitlement to the lesser pension benefit
(38 CFR § 3.701).

When relevant to a potential award or disallowance of death pension,
complete income and net worth must be developed if only partial
information was provided. The adjudicator will then notify the
beneficiary concerning entitlement or nonentitlement to pension based on
the evidence developed, or disallow death pension due to failure to
submit requested evidence. In addition, the adjudicator will notify the
beneficiary of entitlement to DIC and accrued, and the right to elect
between DIC and death pension (if applicable).

In cases where income and net worth are not pertinent to an award or
disallowance of death pension (e.g., no qualifying service), partial or
complete omission of this information from VA Form 21-534 does not
render the application materially incomplete. In this situation, the
claimant should be advised of nonentitlement to death pension when DIC
and accrued are addressed.

When income and net worth would be pertinent to an award or disallowance
of death pension, complete omission of all relevant data from the
application means that the claim is not well-grounded in that regard. In
this situation also, the claimant should be advised of nonentitlement to
death pension when DIC and accrued are addressed. The adjudicator should
inform the applicant that death pension has been disallowed because
evidence of income and net worth is necessary in order to establish
possible entitlement. The applicant should be invited to submit the
information if further consideration is desired, and should be reassured
that the pension disallowance will not become final if the necessary
evidence is submitted within one year.

II\. Processing VA Forms 21-534 when block 11b is marked \"no\" or blank

(Service-connected death not alleged)

The remaining three claims-processing situations involve cases in which
a claimant does not allege that the death is service-connected and
provides (4) full, (5) partial or (6) no income and net worth
information. The [Isenhart]{.underline} decision does not require any
change in existing procedures for consideration of DIC in these
situations (see M21-1, Part II, Chapter 3), and the guidance previously
outlined applies when income and net worth information is either
incomplete or omitted.

III\. Processing VA Forms 21-535

While the [Isenhart]{.underline} decision does not address DIC claims
filed by parents under 38 U.S.C. 5101(b)(2), that statute also requires
consideration of accrued benefits. We issued similar procedural guidance
for all original death claims in the [Isenhart]{.underline} assessment
document based on our current reading of this law.

IV\. Processing VA Forms 21-526

Neither the law nor Court precedent mandates consideration of disability
compensation claims as claims for disability pension, or vice-versa. By
regulation, the Secretary has provided that a claim for compensation may
be considered a claim for pension, and that a claim for pension may be
considered a claim for compensation (38 CFR 3.151(a)). Since this
regulation is permissive rather than mandatory, a veteran may elect to
apply for one benefit or the other, and we will continue to develop
entitlement to the benefit(s) actually claimed. We will issue further
guidance to Regional Offices if a new Court precedent or a change in
regulation requires a different procedure.