**JUDICIAL REVIEW CONFERENCE CALL**

**May 5, 1994**

**[Page]{.underline} [Topics]{.underline}**

2 [Opening Remarks]{.underline}

2 [Jensen v. Brown]{.underline}

2 [Award Processing for Attorney Fees]{.underline}

3 [Decision Assessment Package]{.underline}

Gifford v. Brown, U.S. Vet. App. No. 93-246

Doran v. Brown, U.S. Vet. App. No. 93-228

Mintz v. Brown, U.S. Vet. App. No. 92-1161

Esteban v. Brown, U.S. Vet. App. No. 92-693

O.G.C. Precedent 6-94 (2/24/94)

4 [Closing Remarks]{.underline}

**JUDICIAL REVIEW CONFERENCE CALL**

**May 5, 1994**

Good morning everybody. We know that it has been very difficult to get
through to us on the phones this week. Since we moved it seems that the
phones have been out off and on. Believe me, it has been just as
frustrating for us as it has been for those of you trying to get through
to us. Please keep trying us, I know my phone has been working for the
last two days straight. Meanwhile you can also e-mail or fax messages to
us at 275-1756. Of course the area code is 202.

**[Jensen v. Brown]{.underline}, 4 Vet. App. 304 (1993)**

This first case I\'m going to talk about was not in the April package.
The Court of Veterans Appeals\' decision in **[Jensen]{.underline}**,
which invalidated the second sentence of section 3.306(b)(2), was
reversed on appeal to the United States Court of Appeals for the Federal
Circuit. **[Jensen v. Brown]{.underline}**, Fed. Cir. No. 93-7067
(3/22/94).

As a result of the prior **[Jensen]{.underline}** decision, we advised
regional offices to disregard the invalidated sentence (i.e., \"\[t\]he
development of symptomatic manifestations of a preexisting disease or
injury during or proximately following action with the enemy or
following status as a prisoner of war will establish aggravation of a
disability\") during the April 1993 Judicial Review Conference Call, and
in a decision assessment document distributed in June 1993 (Transmittal
16). We are revising our assessment of **[Jensen]{.underline}** based on
the Federal Circuit decision, and it will be included in the May 1994
assessment package.

**Award Processing for Attorney Fees**

We continue to receive numerous inquiries regarding the processing of
awards which involve attorney\'s fees. Therefore, we reiterate the
following processing requirements:

1\. Regardless of the type of award, Finance must input the 31J via an
06B transaction and send 20% of the past-due benefit to the agent
cashier to be deposited in the station suspense account
**[before]{.underline}** authorization of an award releasing past due
benefits to a beneficiary.

2\. The adjudicator must review the M01 screen to insure that the 31J is
in place **[before]{.underline}** authorization of an award releasing
past-due benefits to a beneficiary.

3\. An award releasing 80% of past due benefits to a beneficiary
**[must]{.underline} [always]{.underline}** have reason code 57 on the
first line of the award.

This entire process will fail if any of these steps are not followed.
Please disseminate this information to all those involved, because we
continue to receive calls from adjudicators who are unfamiliar with this
process.

You may wish to review our previous instructions given in the
all-station letter 3-101 dated September 7, 1993.

**Decision Assessment Package**

The assessment package E-mailed April 22, 1994, contained four Court
cases and one General Counsel precedent opinion.

**[Gifford v. Brown]{.underline}, U.S. Vet. App. No. 93-246**. This case
concerned correction of erroneous entries on rating decisions. The
veteran was erroneously awarded service connection for a gunshot wound
of the right thigh when the injury had, in fact, been to the left thigh.
More than twenty years later, the rating was corrected to accurately
reflect the gunshot wound to the left thigh. The Court held that the
only essential feature of the initial rating, and that which was
protected, was a disability stemming from a gunshot wound to the thigh.
Thus, the correction of a rating to reflect accurately the site of an
injury is a simple, nonsubstantive, administrative correction and does
not result in a new rating or the severance of the old rating. Appellant
has filed an appeal of this decision to the United States Court of
Appeals for the Federal Circuit.

**[Doran v. Brown]{.underline}, U.S. Vet. App. No. 93-228**. In
**[Doran]{.underline}**, the Court noted that under the governing
statutory and regulatory provisions regarding claims for service
connection for post-traumatic stress disorder, if the claimed stressor
is not combat-related, the veteran\'s lay testimony regarding inservice
stressors is insufficient to establish the occurrence of the stressor
and must be corroborated by \"credible supporting evidence.\" The Court
further noted that there is nothing in the statute or the regulations
which provides that corroboration must, and can only be, found in
service records, and also concluded that those service records which are
available must support, i.e., must not contradict, the veteran\'s lay
testimony concerning his noncombat-related stressors.

**[Mintz v. Brown]{.underline}, U.S. Vet. App. No. 92-1161**. In this
case, the Court held that a determination of \"as if\" service
connection under 38 U.S.C. § 1151 may create entitlement to disability
compensation under Chapter 11 or to Dependency and Indemnity
Compensation under Chapter 13, but not to burial benefits under Chapter
23.

**[Esteban v. Brown]{.underline}, U.S. Vet. App. No. 92-693**. In
**[Esteban]{.underline}**, the regional office and the Board of
Veterans\' Appeals (BVA) denied entitlement to separate ratings for
residuals of a service-connected facial injury involving painful scars,
disfiguring scars, and muscle damage interfering with mastication. The
Court reviewed the rule against pyramiding and determined that separate
disability ratings are appropriate when a single injury results in
distinct functional impairments. Thus, interference with mastication
from muscle damage may be evaluated separately from skin manifestations
which do not interfere with mastication. Additionally, the Schedule for
Rating Disabilities does not expressly prohibit separate evaluations
under diagnostic codes 7800 and 7804 for scars based on disfigurement
and pain, as none of the symptomatology overlaps based on rating
standards.

**[O.G.C. Precedent 6-94]{.underline} (2/24/94)**. The Chairman of the
BVA requested this opinion based on two separate decisions made by BVA
sections which resulted in different applications of the rating criteria
in effect prior to March 10, 1976, for skull loss under diagnostic code
5296. In one case, the veteran alleged entitlement to a 50 percent
rating retroactively because the aggregate area of skull loss, while
less than two square inches, was greater than the area of a 50-cent
piece. The claim was denied because the Board section determined that
such a result would be contrary to established principles of statutory
construction. In the other case, the veteran claimed entitlement to a 30
percent rating retroactively because his single area of skull loss was
greater that the size of a 25-cent piece, but less than one square inch
in area. The claim was granted because the Board section concluded that
the pre-1976 version of DC 5296 had tried, but failed, to establish a
single criterion governing entitlement to a 30 percent rating and a
single criterion governing entitlement to a 50 percent rating. Following
a review of the available history, the General Counsel held that DC
5296, as in effect prior to March 10, 1976, established a divided system
of assigning disability ratings for partial skull loss, under which
ratings could be assigned either on the basis of the aggregate of two or
more areas of skull loss or on the size of a single area of skull loss.
A 50 percent evaluation could be assigned where there were two or more
areas of skull loss whose aggregate area exceeded 2 square inches, or
there was a single area of skull loss which was greater in size than a
50-cent piece.

Are there any questions about anything else that was in this hotline
today? If not, you can always ask us later if you can get through on the
phone and we will speak to you again at our next Judicial Review Hotline
which will be held on Thursday, June 2 at 11:00 am EDT. Good bye!