**Judicial Review Conference Call Index**

**January 7, 1999**

**Page Topic**

**1 *Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998)***

***Tucker v. West, 11 Vet.App. 369 (1998)***

**2-3 *Green v. West, 11 Vet.App. 472 (1998)***

**4-5 *Cox v. West, 149 F.3d 1360 (Fed. Cir. 1998)***

**6 *Forshey v. West, No. 96-1038***

**VAOPGCPREC 13-98 (9-23-98)**

**7 VA Physician's Opinions on Benefits Claims**

**Total Disability Plus Housebound**

**8 Requests for Information on Claims Folders at PSG VII**

**PSG VII Requests for Claims Folders**

**9 Return of Claims Folders in Appellate Cases**

**10 Addendum I, 1999 Quarterly Schedule of Judicial Conference Calls**

**Judicial Review Conference Call**

**January 7, 1999**

***Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998)***

*Bailey v. West* is a Federal Circuit decision which found that the 120
day appeal period within which a BVA decision must be appealed to the
Court of Veterans' Appeals was extended because of a VBC's actions. In
*Bailey*, the BVA denied a veteran's request to reopen his claim for
service connection. He went to his local regional office for help and
was first told that he would have to talk to an attorney to do anything
further with his claim. After he found out this was not true, he
returned to the regional office. A VBC then helped him fill out a VA
form 21-4138 and told him she would get his appeal started. Nothing
further was done at the RO and the 120 days passed.

A short time later the veteran filed an appeal with the Court of
Veterans' Appeals (the Court). This appeal was dismissed as not timely
filed. The Federal Circuit overturned the decision of the Court by
concluding that the VBC's actions could provide a basis for suspension
of the 120 day appeal period.

It is important for VBCs and VSRs, and others who assist veterans, to
recognize when a veteran is attempting to appeal a BVA decision to the
Court. All BVA decisions are sent to veterans (and other claimants) with
a notice of appellate rights, VA form 4597, which tells the appellant
where and when to file an appeal. If a veteran wants information from us
about filing an appeal to the Court, we can give him another copy of the
4597 and explain that this form tells where and when to file an appeal.
We **should *not*** attempt to interpret the form or help the veteran
file an appeal to the Court, since there is too great a chance for us to
give misleading or incorrect information. We should refer the veteran
either to their representative (usually a service organization or
attorney), or to the Court of Veterans' Appeals, for further information
or assistance. There will be training for all VSRs on the appellate
process in general and on this case in particular in the near future.

***Tucker v. West*, 11 Vet.App. 369 (1998)**

In *Tucker*, the veteran appealed a decision which denied him an earlier
effective date for his entitlement to special monthly compensation (SMC)
for loss of use of both lower extremities. In concluding that the
veteran was not entitled to an earlier effective date, the Board noted
that the disability "did not warrant amputation." The provisions of 38
C.F.R. § 4.63 concerning loss of use of a foot state that "Loss of use
of a . . . foot, for the purpose of special monthly compensation, will
be held to exist when no effective function remains other than that
which would be equally well served by an amputation stump at the site of
election below elbow or knee with use of a suitable prosthetic
appliance. The determination will be made on the basis of the actual
remaining function of the hand or foot, whether the acts of . . .
balance and propulsion, etc. in the case of the foot, could be
accomplished equally well by an amputation stump with prosthesis." In
*Tucker*, the Court noted that the relevant inquiry concerning
entitlement to SMC was not whether amputation is warranted, but whether
the effective function remaining was other than that which would be
equally well served by an amputation with the use of a suitable
prosthetic appliance. The Court held that VA applied the incorrect
standard and was in error in concluding that because the appellant's
situation did "not warrant amputation" that he was not entitled to SMC.
Additionally, the Court held that VA, in accordance with section 4.40,
was required to consider pain in making its determination and to
articulate how pain on use was factored into its decision. Decision
makers must insure that 38 C.F.R. §§ 3.350(a)(2) and 4.63 are properly
applied in determining whether entitlement to SMC for loss of use of an
extremity is present.

***Green v. West*, 11 Vet.App. 472 (1998)**

In this case, service medical records showed a diagnosis of "Reactive
Inguinal Adenopathy," which is an enlargement of the lymphatic nodes
between the abdomen and thigh. In March 1985, SMRs also noted swollen
lymph nodes on both sides of the veteran's neck. In April 1986, a VA
rating decision acknowledged a "well documented history" of the
veteran's enlarged lymph glands and awarded service connection (SC) for
"Lymphadenopathy, unknown etiology" with a 10% disability rating. The
diagnostic codes (DC) assigned by VA were DC 7799, 7912, and 7709. In a
December 1991 rating decision, the evaluation was increased to 30%. In
that decision, VA explained its selection of DC 7709 for analogous
evaluation and rating of the veteran's condition as follows:

> Given this veteran's 40 pound weight loss, . . . coupled with his
> complaints of night sweats and fever, rating agency holds that there
> is raised a reasonable doubt regarding the overall severity of the
> lymphadenopathy and will consider evaluation and analogy to 38 C.F.R.
> § 4.117, diagnostic code 7709. In this regard, symptomatology
> productive of an occasional low grade fever, mild anemia,
> fatigueability \[sic\], or pruritus will be evaluated 30 percent
> disabling.

After three unsuccessful attempts to have the evaluation increased, the
veteran filed a Notice of Disagreement in May 1993. Following a BVA
remand, two VA examinations were conducted. The reports from both
examinations noted that the veteran's adenopathy was "currently active".

In its decision, the Court stated that it is the responsibility of the
VA to adopt and apply a schedule for rating disabilities for veterans.
When a condition is not listed in the rating schedule, it may be rated
under a code for a closely related disease and given an analogous rating
as stated in 38 C.F.R. §§ 4.20 and 4.27. The Court noted that, in this
case, the VA had consistently evaluated the veteran's disability as
analogous to Hodgkin's disease under DC 7709. Under the amended Hemic
and Lymphatic System effective October 23, 1995, DC 7709 calls for a
100% evaluation where the disease is active or under treatment. No
provision was made for assigning a rating lower than 100% where the
disease was active or under treatment. The Court went on to state that
once a diagnostic code was assigned for an analogous rating for the
veteran's lymphadenopathy, application of the criteria and the ratings
for that code was required. The Court held that the denial of a rating
increase was legally erroneous in failing to assign a 100% evaluation
for the veteran's active disease with an appropriate effective date. In
this case, that effective date of the total disability evaluation could
not precede the effective date of the new rating criteria established
for the hemic system, October 23, 1995.

The *Green* case brings up several noteworthy issues which are based
upon general knowledge and not upon review of the claims file. The first
issue involves the original grant of service connection. The term
"lymphadenopathy" refers to enlargement of lymph nodes. "Reactive
lymphadenopathy" represents a reaction to a nearby or systemic
inflammatory process. There is no indication that a disease was
diagnosed or that a disease process accompanied the lymphadenopathy at
the time of the grant of service connection in *Green*. The presence of
enlarged lymph nodes in the absence of an underlying disease does not
represent a disability. In this specific situation, a grant of service
connection would most likely not be appropriate.

Second, this case emphasizes the importance of assigning an appropriate
analogous code. For example, we question the appropriateness of rating a
benign illness by analogy to a malignant disease. Moreover, in assigning
analogous codes, care should be taken to assign the code which most
closely reflects the symptoms shown in the medical evidence of record.
Once a diagnostic code is assigned, criteria required in the rating
schedule cannot be ignored simply because the condition was rated by
analogy.

In diagnostic code 7709, the term active refers to an active malignancy.
In *Green*, the 1995 and 1996 examination reports note that the
veteran's lymphadenopathy (enlargement of the lymph glands) was
"currently active." The Court indicated that in utilizing DC 7709 (under
the rating schedule changes effective from October 1995) in a case where
the medical evidence shows a veteran's condition is "active," the rating
schedule requires a 100% disability evaluation. Currently, DC 7709 does
not define the word "active." Accordingly, the Court did not distinguish
between the "active" malignant disease process referred to in DC 7709,
and the veteran's apparently benign "active" condition or disease.

It does appear that the veteran in *Green* has a serious disease, as the
presence of palpable lymph nodes was associated with severe weight loss,
unusual in cases of reactive lymphadenopathy. Lymphadenopathy does
accompany most malignant disease processes. It is unclear whether the
weight loss is related to his service-connected condition, or whether he
has some other ongoing process. At the time of the grant of service
connection in *Green*, it appears that it would have been more
appropriate to use an analogous code such as 7712 or 7700 rather than
7709. Under the provisions of DC 7700, the veteran's symptomatology
would still have warranted a 30% evaluation and the service connected
condition would be more appropriately evaluated analogous to a non
malignant disease process.

It is incumbent upon rating specialists to consider whether previously
assigned analogous codes are still appropriate, particularly in light of
changes to the rating schedule. In any event, changes in symptomatology
of a disease process may warrant a change in the assignment of a
diagnostic code.

**Any questions on *Green*?**

**Question:** Is there anything that would preclude correcting the
diagnostic code on this?

**Answer**: On this case or in general?

**Question**: On that particular case?

**Answer**: We have the Court awarding a 100%. I think some things need
to be considered when that case is returned. I'm not going to tell you
what to do from here, but I would probably take a look at that
condition, how it should be properly coded, obtain some updated medical
information and rate it under the appropriate diagnostic code. The 100%
is not protected. Now, if you encounter a wrong diagnostic code in the
course of your regular case work, I think it would be prudent to correct
that code. And while you're correcting that code, put a justification in
the body of your rating decision, so that there is a record of that, and
the claimant or veteran is aware of under what system we are evaluating
his or her disorder.

***Cox v. West*, 149 F.3d 1360 (Fed. Cir. 1998)**

This case involved the failure of a regional office (RO) to withhold 20%
of past-due benefits for potential payment of attorney fees. The RO
notified the attorney of their failure to withhold funds. The attorney
filed a motion at the Board to order payment of the fee. When the BVA
declined to issue a decision on the issue, the attorney filed a petition
for a writ of mandamus at the Court of Veterans' Appeals asking that the
Board be compelled to issue a final decision on his petition for
attorneys' fees. The Court determined that the attorney had an
alternative remedy. The Court stated that in a case where VA failed to
withhold partial benefits for potential payment of attorney fees, that
action is appealable to the Board of Veterans' Appeals. Notification of
such failure requires a statement of appellate rights. Because the RO
failed to provide the attorney with his appellate rights when he was
notified of their failure to withhold funds, the Court held that the
one-year appeal period had been tolled. Since he had an alternative
remedy, the Court dismissed his petition.

Subsequently, the attorney appealed to the United States Court of
Appeals for the Federal Circuit (Federal Circuit) asserting that the
denial of the writ was an abuse of discretion because it was based on
the erroneous conclusion that his filing of an NOD would vest the Board
with jurisdiction over his claim. The attorney claimed entitlement to
his fee under section 5904(d), which he argued obligated VA to pay fees
such as those due him. He asserted that VA, not he, must bear the
consequence of the erroneous payment to the veteran. However, the
Federal Circuit agreed with the CVA's decision that there was an
alternative remedy under 38 U.S.C. § 511. The relevant issue under
section 511(a) is whether the decision necessarily interpreted a law
that affects veterans benefits. Because the regional office failed to
withhold the funds for potential payment of attorney fees, he is
entitled to a review of that decision by the Board.

On August 13, 1998, all Attorney Fee Coordinators were sent the
following message:

"Effective immediately, any attorney who potentially was/is entitled to

payment of fees from past-due benefits and your office failed to
withhold

same, the attorney must be furnished a letter along with appellate
rights."

For all cases where such a failure was discovered, the Coordinators were
told to contact the Judicial Review Staff for advice. To date, we are
aware of four such instances. When there is a failure to withhold 20% of
the past-due benefits for potential payment of attorney fees and the
attorney files a Notice of Disagreement with that decision, appeals will
be handled as contested claims as outlined in M21-1, Part IV, Chapter 5.
All cases must be brought to the attention of the Judicial Review Staff.

Before a Statement of the Case can be issued, development action will be
required in each case. The claimant must be requested to furnish
information concerning (1) his or her payment of the attorney fees to
include dates and amounts of such payments, (2) if not paid, why did the
claimant fail to pay the fees, (3) if not paid, does the claimant intend
to pay the fees, and (4) the claimant is to be given the opportunity to
provide any other information that he or she believes VA should consider
in determining whether to grant the attorney's claim for payment of
attorney fees. The claimant will also be notified that if the attorney's
appeal is successful and VA is required to make a duplicate payment of
past-due benefits, an overpayment in their account may be created. The
overpayment may be deducted from his or her future benefit payments.

Upon completion of all indicated development, a Statement of the Case
will be issued to each party with copies to each party's representative.
Regional offices **do not have the** **authority** to grant such appeals
because they do not make the determination as to whether payment of
attorney fees is appropriate. Regional offices merely implement
determinations made by the Board of Veterans' Appeals, the Court of
Veterans Appeal or the Compensation & Pension Service. (See M21-1, Part
III, par. 12.38a). As soon as the attorney promulgates his or her appeal
by submitting VA Form 9 or its equivalent, the case **will be
forwarded** to the Board of Veterans' Appeals.

We are aware that most, if not all, regional offices have adopted
various means for identification of cases where potential payment of
attorney fees may be required. For example, ROs may use brightly colored
flashes, maintain logs, or place the cases under Sensitivity Level 8
Access controls. The best of these methods for preventing erroneous
award action is the Sensitivity Level 8 Access. If your office does not
already have cases involving the potential payment of attorney fees from
past-due benefits under Sensitivity Level 8 Access, you should consider
establishing such controls.

**Any questions?**

**Question:** Wasn't there some thought in the past about getting the VA
out of the business of paying attorneys and let them be responsible to
collect it from their claimant?

**Answer:** Yes, there has. The VA proposed a regulation change some
time ago that did just that. However, there were comments received and
the final decision is waiting on the Secretary's decision.

I'd just like to comment that even if that regulation is promulgated to
"get us out of the business" it will not be retroactive. So, you will be
looking at potential payment of attorney fees for several years in the
future because the current contract asks the VA to pay.

***Forshey v. West*, No. 96-1038**

In *Forshey v. West*, No. 96-1038 (U.S. Ct. Vet.App. December 3, 1998),
the Court considered whether or not the veteran's in-service death from
injuries sustained in a motorcycle accident entitled the surviving
spouse to Dependency and Indemnity Compensation (DIC). There is an
excellent discussion in this case on proximate cause, willful misconduct
and line of duty determinations. It is a good case for training
purposes. The Court's decision will be included in the January update to
ARMS. We anticipate that update to be available during the second week
of January. A copy of our assessment will be in the next DAD package.

**VAOPGCPREC 13-98 (9-23-98)**

This General Counsel opinion addressed the question of whether a
surviving spouse who regains eligibility for dependency and indemnity
compensation (DIC) under 38 U.S.C. § 1311(e) as added by section 8207 of
the Transportation Equity Act for the 21^st^ Century also regains
eligibility for ancillary benefits such as medical care under CHAMPVA,
education assistance under Chapter 35, or for loan guaranty benefits.
The General Counsel held that they do not. In all cases where the
surviving spouse has regained his or her eligibility for DIC under
section 1311, he or she must be notified that they did not regain their
eligibility for these ancillary benefits.

**VA Physician's Opinions on Benefits Claims**

On December 16, 1998, Fast Letter 98-116 was released. This letter
contained a VHA directive which, essentially, removes the restrictions
on VA healthcare providers from furnishing opinions in support of claims
for their veteran patients. Concerns have been expressed to us about the
effect of such a medical opinion on a rating decision, where the opinion
is expressed in terms of percentage of disablement, and the percentage
is in stark contrast to the evaluation of the disability in terms of the
rating schedule. For example, a treating or examining physician
expresses his or her opinion that a veteran is 70% disabled, however,
the examination findings warrant only a 30% evaluation under the
schedule.

It should be noted that the directive has a disclaimer which the veteran
must sign indicating that a doctor's opinion is not binding. The
evaluation to be assigned is a legal decision based upon the criteria
contained in the rating schedule. All evidence/opinions must be weighed
by the decision maker, and the probative value of that evidence or
opinion must be determined. If a treating physician writes an opinion
showing how a veteran meets the requirements for a particular
percentage, it must be evaluated. If an opinion is received which is
unsupported by any reasons or bases for the opinion, the probative value
of that opinion must be determined. It may be necessary to seek further
clarification from the physician or, if the medical evidence clearly
supports some other determination, the decision maker must provide
complete reasons for assigning a percentage and, if indicated, why the
provisions of 38 C.F.R. §§ 4.3 and 4.7 are not applicable. Like all
decisions, it is required that all evidence be discussed and that there
be an adequate statement of the reasons and bases for the decision made.

**Total Disability Plus Housebound**

In VAOPGCPREC 2-94, the General Counsel characterized the language of 38
U.S.C. § 1114(s) as plain and unambiguous. It was observed that there is
nothing in the statutory language indicating a Congressional intent to
exclude service-connected disabilities rated as total under 38 C.F.R. §
4.16, i.e., based on individual unemployability, from meeting the
definition of a "service-connected disability rated as total" for
purposes of entitlement to special monthly compensation under section
1114(s). In implementing this decision, it must be noted that there are
two methods by which housebound benefits may be awarded: (1) where there
is a disability rated as total and additional SC disability combining to
60% or more; or (2) where the individual is housebound in fact. In
considering total disability due to individual unemployability under the
first method, there must be additional disability, separate and distinct
from the disability(ies) resulting in unemployability, meeting the 60%
requirement, in order for housebound to be awarded. In considering the
second method, there must be a factual determination that the
disability(ies) resulting in unemployability render the veteran
housebound.

**Any questions on Total Disability?**

**Question**: When a veteran is granted housebound benefits even though
they do not have a 100% evaluation for a single disability, the computer
does not accept the award action. How can we get these awards in the
system?

**Answer**: I can't answer that question for you now. We'll take a look
at it and get an answer out in the transcript.

\[For now, the only way to get the computer to pay the housebound rate
(SMC "s") is to code one of the service connected disabilities as 100%.
Suppress the computer letter and send a dictated letter with correct
information. There's a long standing request pending for reprogramming,
it's priority is not high.\]

**Requests for Information on Claims Folders at PSG VII**

All-station letter 96-14 provided a point of contact within PSG VII
involving cases on appeal to the Court of Veterans' Appeals. If you need
to know the status of an appeal to the Court, need information out of
the claims folder, need to notify PSG VII of additional regional office
actions concerning the issue on appeal or need the claims folder to
process an unrelated claim, the point of contact is Mr. Michael (Mike)
Sligh, telephone number (202) 233-6564. If Mike is not available,
secondary contact point is Jerry Howard, (202) 233-8583. This is a
change from the information provided in the all-station letter.

**PSG VII Requests for Claims Folders**

When an appeal is filed at the Court of Veterans' Appeals (the Court),
there is a very specific time frame in which the VA must obtain the
folder and prepare the transcript of the record. Generally, this period
is 60 days from the date of a Court order notifying VA that an appeal
has been filed. That 60-day period includes the time it takes for
transfer of the folder from the regional office, review of the record by
the Board of Veterans' Appeals for identification of the appropriate
documents, and preparation of the record by the Litigation Staff. Any
inordinate delays at the regional office can result in untimely
submission of documents to the Court. The Court is unsympathetic to VA
requests for extension of time limits. Sanctions could be ordered.

VA's Litigation Staff , PSG VII, has been encountering difficulties in
obtaining claims folders from regional offices. Frequently, the response
to their request has been: "The folder is currently at a VAMC and it
will be 2-3 months before we can send you the folder." **This response
will not allow our attorneys to meet their Court imposed deadlines.**
Regional offices must locate and send the requested claims folders to
PSG VII within 48 hours of the receipt of the request for transfer. If
your office will not be able to transfer the folder within that time
frame, PSG VII must be notified as to when they can reasonably expect to
receive the file. That expectation should be measured in days, not weeks
or months. Information concerning potential problems may be provided to
PSG VII by e-mail or by calling (202) 233-6564/8583.

If your office does not have procedures in place whereby management is
alerted to potential delays in responding to a request for transfer of a
folder to PSG VII, we strongly urge you to consider implementing such
procedures. Again, delays of 2-3 months is not acceptable to the Court.
Whatever action is necessary to get the claims folder transferred to the
Litigation Staff must be undertaken and office management should be
involved in resolving whatever problems are preventing the rapid
transfer of the file.

**Return of Claims Folders in Appellate Cases**

Another related problem is the return of claims folders to the Board of
Veterans' Appeals or the Litigation Staff. Procedures were previously
worked out between PSG VII, BVA and the C&P Service, resulting in a
return of the claims folders to the regional offices as soon as the
Court received and accepted the designated record on appeal. We are
aware that the instituted procedures have been working and that regional
offices have been receiving back claims folders much quicker than
previously.

However, the procedures also call for the **immediate** return of the
claims folder to PSG VII, if the need arises, or for the **immediate**
submission of the file to the Board of Veterans' Appeals, if the Court
issues a remand order. We have been notified that regional offices are
increasingly responding to such requests for return of the folder by
stating that it will be 2-4 months before the file can be released. As
stated earlier, such delays are **not** **acceptable** to the Court. If
there are pending actions at the regional office level, photocopies of
the necessary documents must be made and temporary folders established
in order to continue regional office processing. Then the claims folder
must be returned to PSG VII or submitted to the BVA. These requests are
based upon Court orders which often require that specific actions be
taken in specific time frames.

**Any other questions?**

**Question**: Is there a newer edition other than the third edition of
the Summary of Significant Holdings of the United States Court of
Veterans Appeals?

**Answer:** We have a fourth edition just about ready to go. We're
getting the necessary concurrences and reviews at this time. It will be
out shortly.

Our next conference call is scheduled for April 1, 1999, at 11:00 a.m.,
Central Office time. Also, enclosed is Addendum I, the schedule of our
1999 Judicial Review Conference Calls.

**Addendum I**

**1999 Quarterly Schedule of Judicial Review Conference Calls**

**Date EST Time**

**04/01/1999 11:00**

**07/01/1999 11:00**

**10/07/1999 11:00**