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

April 2, 1992

Good Morning. I am the Director of the Compensation and Pension Service.
This is the first in a series of conference calls dealing with the Court
of Veterans Appeals and the impact their decisions are having on the
adjudication process at the regional office.

A schedule of future calls will accompany the transcript of this one. In
general the COVA conference calls will be on the first Thursday of each
month. Starting times will vary so be alert. We will continue to have
our monthly management calls on the 3rd Thursday of each month.

After today, our plan is to discuss primarily those cases handed down
over the previous 30 day period. For example, the next COVA call is
scheduled on May 7. We will E-mail assessment documents on the
significant cases in April to you on April 30. These cases, your
questions on them as well as other COVA/BVA/GC issues will represent the
agenda for the May 7 call.

With me this morning are staff members of the General Counsel\'s Office
and of the Board of Veterans Appeals. Also in attendance are members of
the Compensation and Pension Service.

As of February 20, 1992, 4,250 appeals had been placed on the docket
with the Court. The court affirmed 286; remanded 364; reversed 46 and
dismissed 1,206. There were 2,348 cases awaiting to be decided.

It is our assessment that our decision makers (rating specialists and
hearing officers) do not always receive guidance in a timely manner or
if they do there is a lack of understanding of this guidance.

Remember, the courts decisions are precedent and effective on the date
they are issued. In some respects, they are like the public laws passed
by Congress and must, therefore, be adhered to in a timely and
responsible manner.

In my mind, there are two basic goals to achieve from these calls: The
[What]{.underline}! and the [How]{.underline}!

1\. THE WHAT! What do these cases represent and

2\. THE HOW! How do we implement them.

With that as the introduction, I will now turn the microphone over to
the Chief of the Judicial Review Staff of the Compensation and Pension
Service.

[JUDICIAL REVIEW STAFF:]{.underline}

Good morning everyone and welcome to the first Judicial Review Hotline
conducted by the Compensation and Pension Service. As the Director
indicated, for the foreseeable future we expect this Hotline to be a
monthly event, generally to be held at 11:00 am on the first Thursday of
each month. Advance notice will be provided if there are schedule
variations. Field station attendance at these Hotlines is not limited in
any way but should include, at a minimum, the Adjudication Officers, the
Rating Boards and the Hearing Officers since most of the significant
court cases to date have dealt with compensation and pension issues. The
General Counsel has also encouraged District Counsels to attend.

For District Counsels and others who may wish to dial in to this Hotline
from locations other than Regional Office Conference Rooms, they may do
so by dialing 9-1-800-767-1950. They should dial in 5 minutes before the
scheduled start of the Hotline and should keep background noise to a
minimum to avoid network disruptions.

I would like to mention two other administrative details before we get
started. First, it has come to our attention from a variety of sources
that there still exist within the Department isolated stocks of obsolete
forms and form letters which contain outdated, erroneous and in some
cases legally objectionable language. The forms and form letters range
from old appellate notice forms to old cover letters for Supplemental
Statements of Case which should, by the way, currently be identified
with the designation \"April 1991 (RS)\". The Nagler/Jones and
Jones/Snyder cases should have made it abundantly clear that sanctions,
not against the Agency, but against individuals for release of legally
objectionable material are a real possibility. I have heard anecdotally
that a manager recently conducted a desk audit and was absolutely amazed
at what he found in the way of obsolete forms that could be
inadvertently released. Given the current judicial climate with respect
to this issue, all managers may wish to consider such desk audit
procedures.

Second, in the way of administrative details I would like to strongly
recommend that rating specialists read the case of **[Collier v.
Derwinski]{.underline}, U.S. Vet. App. No. 90-882**, and that is docket
no. (90-882). We anticipate it will be published in the May volume of
the Veterans Appeals Reporter, but is currently available on WESTLAW if
you have access to that system. The decision provides an excellent
discussion of how the facts in that case were sufficient to justify a
finding of sustained improvement necessary for reduction of an
evaluation. By the way, if any office is having difficulty with their
subscription to the Veterans Appeals Reporter, please let me know and we
will contact West Publishing for you.

The purpose of this Hotline is to disseminate, directly to the decision
makers at the Regional Offices, the policy and procedural changes
mandated by decisions of the Court of Veterans Appeals. Decisions of the
Court are effective immediately upon issuance of the opinions, but of
course, Regional Offices cannot implement those decisions unless and
until they have notice of them. It is our job to provide you with the
essence of Court decisions and their meaning with respect to any
necessary changes in the claims adjudication process, just as quickly as
possible. To that end we will continue to issue Interim Instruction
letters by electronic mail on fast breaking major policy issues, and we
will continue to periodically provide you with copies of our decision
assessment documents, the Court of Veterans Appeals Notes from the
General Counsel and the BVA Chairman\'s Memoranda on issues affecting
the appellate review of claims. Future Judicial Review Hotlines will
reinforce the policies and issues presented in the mailings of the
previous month and will address specific questions about those and other
issues which participants may wish to raise. In that regard, please get
your questions to me as early in the month as possible, and please
include any general topics you think would be of interest for a more
in-depth treatment on future Hotlines.

The format for today\'s Hotline will be slightly different from that of
future Hotlines. The Judicial Review Staff will make brief presentations
on some of the more significant issues raised by Court decisions since
the Court began operations in 1989. This will be followed by a
discussion of some more recent Court decisions and a General Counsel
Opinion that affect claims processing. After that we will provide
answers to some of the questions you E-mailed to us last week, and
finally we will throw the floor open to questions from the field as time
permits.

With regard to the question and answer session, we do not intend to make
policy \"on the fly\". If we know the answer to a question, you will
have an immediate response. If there is some question as to the
appropriate response, we will develop an answer and provide it to you,
either with the transcript of the Hotline or verbally at the next
Hotline. When you ask questions, please identify yourself by name and
Regional Office so that everyone will know where the question is coming
from and please hold your questions until the presentations are over and
questions are invited.

Lastly, I have to say, unfortunately, that everything said here today is
subject to change. We are trying to implement Court decisions as
reasonably and as quickly as possible, but we are not the last word on
what a Court decision means. The Court is. We are operating in an
ever-changing environment, and we must be prepared to react to change as
change occurs.

With that, I would now like to begin the substantive part of this
Hotline with a brief presentation on the issues of \"duty to assist\"
and \"new and material evidence\".

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

On Duty to Assist the Court has issued a multitude of decisions which
deal with VA\'s \"duty to assist\" a claimant in developing for evidence
that has a bearing on the claim. Before you can deny a claim for
benefits, you must be sure that our \"duty to assist\" has been met. You
must thoroughly review the claims folder to determine that all evidence
has been either obtained or that an attempt has been made to obtain all
evidence pertinent to the pending issues. In chronological order of the
decisions, the following cases outline specific requirements for meeting
our obligations. The first case was:

**[Jolley v. Derwinski]{.underline}, l Vet. App. 37 (l990)**, decided on
October 3, 1990. In that case the Court said that we have a statutory
duty to assist a claimant in developing facts pertinent to his claim
which includes searching for all records in VA\'s possession.

On November 8, 1990, the Court issued **[Murphy v.
Derwinski]{.underline}, l Vet. App. 78 (l990)**, which held that we must
develop all relevant facts pertinent to the claim, not just those for or
against the claim.

The **[Littke v. Derwinski]{.underline}, l Vet. App. 90 (l990)**, case
issued on December 6, 1990, requires the VA to develop pertinent facts
from all sources and conduct a thorough medical examination when there
is evidence of a significant change in the claimant\'s condition. VA
examinations must meet the requirements of the [Physician\'s
Guide]{.underline} and, if they don\'t, must be returned as inadequate.

On January 11, 1991 in **[Akles v. Derwinski]{.underline}, l Vet. App.
90 (l99l),** it was held that our duty to assist extends to all benefits
a veteran may be entitled to under the law, even if not specifically
claimed.

In **[Craft v. Derwinski]{.underline}, U.S. Vet. App. No. 90-508**,
decided on July 30, 1991, the Court stated that decisions in denial of
pension claims which do not establish an evaluation for each diagnosed
disability are deficient. If medical evidence is not sufficient to
establish an evaluation for any one disability, then we have failed our
\"duty to assist\" by not obtaining additional medical evidence before a
final decision is made.

The **[Sokowski v. Derwinski]{.underline}, U.S. Vet. App. No. 89-82**,
case, issued the next day on July 31, 1991, stated that at a minimum, a
VA physical examination or an independent medical examination for the
purpose of evaluating the relationship between the veteran\'s current
condition and the circumstances of his military service is required.

In the **[Schafrath v. Derwinski]{.underline}, l Vet. App. 589 (l99l)**,
case released on November 26, 1991, the Court held that all VA records
cited by the claimant as well as those not specifically cited but known
to exist must be obtained. VA must attempt to obtain all nonVA records
cited by the claimant.

The most recent case dealing with our \"duty to assist\" was **[Cashwell
v. Derwinski]{.underline}**, U.S. Vet. App. No. 90-967, issued on
February 12, 1992. The Court held that our duty to assist includes an
obligation to obtain the \"record\" of the Social Security
Administration\'s adjudication awarding the veteran disability benefits.
When the Vocational Rehabilitation Service has determined that
rehabilitation is medically infeasible, rating boards have an obligation
to obtain those records and weigh the findings when making a decision on
individual unemployability. The duty to obtain and consider vocational
rehabilitation records in code 18 cases was also pointed out in the
**[Cherepanik v. Derwinski]{.underline}, U.S. Vet. App. No. 90-l5l9,**
decision issued on January 9, 1992.

In summary, we have a \"duty to assist\" a claimant to develop facts
pertinent to his/her claim. If there has been any reference made to
additional evidence that the claimant believes will enhance his chances
for a favorable decision, you must obtain all cited VA records and must
attempt to obtain all cited nonVA records. You must also obtain all VA
records that may be pertinent to the claim that you know about. For
example, there is a report that the veteran was treated at a VAOPC and
the issue involves either service connection for a disability or
evaluation of a disability. Since the records may be pertinent to the
claim, you must obtain them before a final decision is made. You must
order VA examinations when appropriate and must return inadequate VA
examinations before making a final determination. Once our records have
been assembled then a final decision on an initial claim may be made.
Or, a decision as to whether the evidence is \"new and material\" on a
reopened claim can be made. Of course, a favorable decision on an issue
may be made at any time during the processing of a claim.

The second topic I want to deal briefly with is New and Material
Evidence.

**[NEW AND MATERIAL EVIDENCE]{.underline}**

In order to determine if a claimant has submitted a reopened claim
involving a previously denied issue, the Court has held that we must
perform a two-step analysis of the evidence. This two-step process was
outlined in **[Manio v. Derwinski]{.underline}, l Vet. App. l40
(l99l)**, issued on February 15, 1991.

Step 1 - You must determine if the evidence is \"new and material. If
the answer is yes, then the case is reopened.

Step 2 - If the case is reopened you must evaluate the merits of the
claim in light of all of the evidence, both new and old. In other words,
a de novo review of the record.

We have provided all regional offices with copies of the memoranda that
have been issued by the Chairman of the Board of Veterans Appeals. His
memorandum numbered 1-91-20 dated June 21, 1991 details how BVA members
are to approach the issue of \"new and material\" evidence.

There has been one other important Court case in this area, **[Colvin v.
Derwinski]{.underline}**, l Vet. App. l7l (l99l), issued on March 8,
1991. That case defines evidence as \"new\" if it is not merely
cumulative of other evidence on the record. Evidence is considered
\"material\" if it is relevant and probative of the issue at hand. A
third criteria that needs to be met before a claim is considered
reopened is that there must also be a reasonable possibility that the
new evidence, when viewed in the context of all the evidence, both new
and old, would change the outcome of the previous decision.

Next we will briefly discuss a couple of cases dealing with Adequacy of
Exams and Opinions from medical examiners.

**[ADEQUACY OF MEDICAL EXAMINATIONS & MEDICAL OPINION OF
EXAMINERS]{.underline}**

I will summarize briefly the facts and holdings in several cases which
pertain to my subject. Adequacy of Medical Examinations and Medical
Opinion of Examiners.

The first is **[Schafrath v. Derwinski]{.underline}, l Vet. App. 589
(l99l)**. In this case, the veteran had a service connected bone spur of
the elbow, which had been evaluated as 10 percent disabling for 11
years. The evaluation was reduced from 10 percent to zero percent
because the examination showed no limitation of motion. However, the
physician noted that the olecranon tip was sensitive to pressure. On his
Notice of Disagreement, the veteran repeatedly asserted that the pain in
his elbow prevented him from working. These complaints were not
considered in the BVA\'s decision which upheld the regional office
reduction. Heretofore, we may have considered the complaints of pain as
subjective and/or self-serving. But the Court held that:

\(1\) Where a claimant asserts to the BVA facts which would support a
rating of compensable functional disability due to pain, 38 CFR § 4.40
must be applied. The Court stated that functional loss due to pain is to
be rated at the same level as the functional loss where flexion is
impeded.

\(2\) The court also held that to provide an adequate basis for fair
adjudication, the examining physician\'s report must furnish in addition
to the etiological, anatomical, pathological, laboratory and prognostic
data required for ordinary medical classification, a full description of
the effects of disability upon the person\'s ordinary activity.

(38 CFR § 4.10)

The second case is **[Colvin v. Derwinski]{.underline}, l Vet. App. l7l
(l99l)**, and concerns medical opinion of examiner. The history of this
case is as follows:

In 1986, the BVA upheld the RO denial of service connection for multiple
sclerosis. The veteran later submitted a statement from a private
doctor, an eminent specialist in the field, whose opinion was that
multiple sclerosis should be service connected. The RO again denied the
claim and the BVA stated that the doctor\'s statement was new but not
material. In doing this the BVA was refuting the expert medical
conclusions in the record with its own unsubstantiated medical
conclusions.

The Court held that:

\(1\) The statement was new and material;

\(2\) The BVA may not rely on the medical credentials of the physician
member to support a medical conclusion or to refute positive expert
medical evidence in support of a claim. If the BVA is of the opinion
that the medical evidence of record is insufficient, or of doubtful
weight or credibility, the BVA is always free to supplement the record
by seeking an advisory opinion, ordering a medical examination or citing
recognized medical treatises in its decisions that clearly support its
ultimate conclusions. This procedure ensures that all medical evidence
contrary to the veteran\'s claim will be made known to him and be a part
of the record before the Court.

The Court also held that:

\(3\) The BVA must rely on independent medical evidence in reaching a
decision.

In **[Tucker v. Derwinski]{.underline}, U.S. Vet. No. 90-672**, the
Court stated that the rating board chose to substitute its own opinion
for that of the VA examining doctor instead of insisting on correction
of the deficiency or an adequate examination. A medical opinion by an RO
rating board or hearing officer is not independent medical evidence as
defined in Colvin above, and thus cannot be relied on by a BVA panel to
support its opinion. The Court stressed that much time and effort would
be saved if the ratings boards insisted on adequate examination results
initially rather than leaving the Board panels to do so.

In **[Fallo v. Derwinski]{.underline}, 1 Vet. App. l75 (l99l)**, the
veteran sought SC for a duodenal ulcer as secondary to SC PTSD. The
rating board reviewed private medical reports submitted by the veteran
and denied the claim. The veteran reopened his claim which was again
denied. With his NOD, he furnished statements of his psychiatrist and GI
specialist. The psychiatrist stated that a duodenal ulcer could be
exacerbated by stress and anxiety. The GI specialist stated that the
veteran\'s various upper GI symptoms could be due to or related to
stress. The case went to the BVA where the Board upheld the RO denial
using as its basis for denial that sound medical principles showed no
causal relationship.

The Court held that:

\(1\) A medical opinion proffered by a BVA physician requires a
statement of reasons and bases for the opinion and should include
citations to relevant medical treatises, journals or other information
relied upon.

The phrase, sound medical principles, can no longer be relied upon as a
conclusory finding without adequate reasons and bases.

In [Futch v. Derwinski]{.underline}**, U.S. Vet. App. No. 9l-376**, the
Court stated that a medical opinion of a VARO rating board or BVA is of
no evidential value.

We will now have a discussion of the Evaluation of Evidence and
Continuity of Disability.

Good Morning everybody. I am going to address two issues today. The
first concerns evaluation of evidence based on the statutory
benefit-of-the-doubt rule, as interpreted by the Court in the Gilbert
case. The second concerns two court decisions affecting the continuity,
which I will discuss briefly.

**[BENEFIT OF THE DOUBT DETERMINATIONS]{.underline}**

I. The Statute

Benefit-of-the-doubt determinations are now a matter of law.

38 USC 5107 (formerly 3007) describes the initial burden of proof a
claimant must meet, the Department\'s obligation to help such a claimant
develop pertinent facts, and the standard by which the Department will
ultimately resolve each issue raised.

It is important to note, from the outset, that application of this
standard presupposes, as a matter of law, that the claim is
\"well-grounded\", or plausible, that the Department has assisted the
claimant develop all the facts pertinent to the claim, and that the
Department has further completed its preliminary consideration of all
the evidence and material of record.

At that point, the statute provides that when there is an approximate
balance of positive and negative evidence regarding the merits of an
issue, the benefit of the doubt in resolving each issue shall be given
to the claimant.

II\. [Gilbert v. Derwinski]{.underline}, 1 Vet. App. 49 (l990)

The **[Gilbert v. Derwinski]{.underline}, l Vet. App. 49 (l990)**,
decision, of October 1990, was the first major Court of Veterans Appeals
precedent to impact the Department, in terms of fundamental
decision-making guidelines.

The Court addressed the history of the \"benefit-of-the-doubt\" rule at
some length. In addition to points already mentioned, the Court noted
that determinations will be of qualitative character. The Court
indicated it expects judgments to be made, but that these must be
explained, to facilitate Court review.

III\. Evaluation of Evidence

Prior to making a determination about entitlement, then, it is first
necessary to determine which of the evidence is favorable, and which is
unfavorable. In addition, the credibility and probative value of each
item of evidence must be assessed with regard to the relative weight
each should be accorded.

At this point, a decision can be made concerning whether or not the
favorable evidence clearly outweighs the unfavorable evidence, or
vice-versa. If the weight of the evidence dictates a favorable
conclusion, there is no statutory requirement to explain the ensuing
decision. In the case of an unfavorable determination, however, the law
mandates reasoning adequate to provide sufficient notice, and both the
BVA and Court will further require evidence that proper decision-making
standards were actually applied. This means reducing the reasoning to
writing, in such a way that both the claimant and the BVA can understand
just how the evidence was evaluated and weighed.

If a claim is decided based on a fair preponderance of the evidence, it
would not usually be necessary to discuss application of reasonable
doubt. However, there will be occasions when VA has a \"heightened
obligation\" to consider potential application of this rule, such as in
fire-related cases (**[O\'Hare v. Derwinski]{.underline}, l Vet. App.
365 (l99l)**), or POW claims. In those instances, it will be necessary
to explain why the rule was found inapplicable, if benefits are denied.

IV\. Review of Terminology

When evaluating \"evidence\", it is essential to have a clear background
understanding of some associated terms.

Evidence has \"probative value\" to the extent it tends to prove an
issue, by furnishing, establishing, or contributing toward such proof.

\"Credible evidence\", or testimony, refers to evidence which is
inherently believable, and which has been received from a worthy source.

A \"credible person\" is one who is trustworthy and of good repute.
Credence is also accorded, or withheld, based on judgments involving the
individual\'s intelligence, expertise, knowledge of specific
circumstances, and disinterested relationship to the matter in question.

Only credible evidence is weighed in reaching the ultimate decision.

I would like to turn lastly to two decisions concerning Continuity.

Court Decisions Concerning Continuity

I. [Cartwright v. Derwinski]{.underline}, 2 Vet. App. 24 (1992)

(\"Contentions\" as Testimony)

In the **[Cartwright.v. Derwinski]{.underline}**, case, the appellant
had reported continuity of treatment during the years following service,
and had provided lay evidence of continuity, along with medical evidence
of treatment many years after service. The case was denied due to
insufficient medical evidence of continuity to support the claim.

The Court held that there is no regulatory requirement for medical
evidence of continuity, and that the appellant\'s sworn testimony cannot
be treated as only a part of his contentions. The case was accordingly
remanded for consideration of the credibility of testimony, and for
reasons or bases for rejecting the evidence in terms of the
benefit-of-the-doubt rule.

The last case I would to discuss is **[Wilson v. Derwinski]{.underline},
2 Vet. App. 16 (1992)**. Apart from defects of the BVA analysis and
explanation, the court found that the claim is well grounded and
according warranted in current examinations based on duty to assist
obligations. The court indicated that a medical opinion would be
required in any relationship between past and present back problems
which was an issue in this case based on prior court precedents.

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

Before we get to answering questions we received this week, I would like
to briefly mention two recent cases in a General Counsel precedent
opinion. The first case I would like to mention is the
[Sabol]{.underline} Case.

**[Sabol v. Derwinski]{.underline}, U.S. Vet. App. No. 90-1123**

On February 3, 1988, VA changed its rating criteria for psychiatric
disorders to provide consistency in the adjectives used to describe the
various levels of impairment, regardless of what the diagnosis actually
was. As stated in the Federal Register at that time, the intended effect
was NOT to automatically increase or decrease anyone\'s evaluation.

Mr. Sabol claimed he was entitled to an automatic increase in
compensation because disability had been found by a rating board, prior
to 1988, to be \"severe\" and therefore 50% disabling, whereas under the
new criteria \"severe\" was worth 70%. Without obtaining new medical
evidence to ascertain the veteran\'s current level of disability, BVA
upheld the Regional Office\'s confirmed 50% rating, stating that it now
viewed the old examination reports as productive of only considerable
impairment and therefore 50% disabling. In its decision the Court
remanded the case to BVA for a better justification of the finding of
considerable impairment in the face of a record which contained no new
evidence subsequent to the previous finding of severe impairment. In a
recent precedent opinion 9-92 the General Counsel held that BVA was
perfectly free to make such a reassessment of the old evidence but it
must fully justify its reasons for doing so.

The Sabol case does **[NOT]{.underline}** stand for automatic increased
ratings for certain psychiatric disabilities. When a claim for increase
is received in a psychiatric case, especially if the issue of changed
rating criteria is raised. Rating Boards must order
[current]{.underline} VA examinations and/or obtain all other available
current medical evidence and apply the [current]{.underline} rating
criteria to that [current]{.underline} evidence. If that procedure is
followed it should prevent the issue of \"automatic\" increases from
being raised in the future.

**[Cashwell v. Derwinski]{.underline}, U.S. Vet. App. No. 90-967**

This case has been mentioned previously by Judy with regard to the duty
to assist in developing claims. The [Cashwell]{.underline} case together
with its companion, **[Masors v. Derwinski]{.underline}, U.S. Vet. App.
(90-540)**, requires that we obtain training feasibility determinations
from our Vocational Rehabilitation counselors and the records on which
disability Social Security was awarded whenever such records are noted
to exist in connection with an individual unemployability or pension.

The point being made by these cases is **[NOT]{.underline}** that our
decisions are in any way controlled by the outcome of a Social Security
or Vocational Rehabilitation decision. The point is that we cannot
dismiss such evidence out of hand without seeing it. If it bears on the
issue being considered, we have a duty to obtain the evidence,
appropriately weigh it, and include those findings in our overall
decision.

Lastly, I would like to mention the Office of General Counsel precedent
opinion 7-92.

**[O.G.C. PRECEDENT 7-92]{.underline}**

This opinion held that the provisions in M21-1 that create a presumption
of adequate stressors to support a diagnosis of PTSD in certain
circumstances actually constitute substantive rules that were never
published for notice and comment in the Federal Register as required by
the Administrative Procedures Act. In addition, since it was outside the
Chief Benefits Director\'s authority to publish such rules in a
procedural manual, they are not binding on either the Board of Veterans
Appeals or the Veterans Benefits Administration.

You should know that we plan to take two courses of action in response
to this decision. In the short term, we intend to publish rules that
will provide the necessary regulatory support for the offending language
presently contained in the manual. In the meantime, the
\"automaticness\" of the stressor presumption may not be cited in
support of a grant of service connection for PTSD. This will not prevent
you, however, from arriving at a favorable conclusion about the
existence of a sufficient stressor based on the facts in an individual
case.

For the long term, there is some concern that other provisions of the
manual may also be viewed as substantive rules that have no regulatory
authority for support. To alleviate that concern we will shortly
undertake a review of the manual in an attempt to identify any such
rules and decide whether we should provide the regulatory authority or
formally withdraw the rules.

At this point we would like to provide brief answers, if we can, to the
questions that were E-mailed to us earlier in the week. We have staffed
out the questions and I am just going to have the consultants provide
the answers in order.

Good morning again. The first question that I have is actually several
questions that we have received over the past month or so in the C&P
Service concerning the concept of \"Sustained Improvement\" including
its impact on diseases such as osteomyelitis. This answer is a little
more than brief but we felt it was necessary because of the importance
of the question.

Q-1: Questions have been raised concerning the concept of \"sustained
improvement\" including its impact on diseases such as osteomyelitis.

A: There have been several Court cases involving the reduction of an
evaluation for a service connected disability. In these cases, the Court
has been critical of our reducing an evaluation without evidence of
\"sustained improvement\". The first two cases that looked at the
provisions of 38 CFR 3.344(c) were **[Karnas v. Derwinski]{.underline},
l Vet. App. 308 (l99l)**, decided on June 11, 1991 and **[Lehman v.
Derwinski]{.underline}, l Vet. App. 399 (l99l)**, issued on July 1,
1991. Both of these cases involved reductions in evaluations of
psychiatric conditions. The third important case was **[Schafrath v.
Derwinski]{.underline}, l Vet. App. 589 (l99l),** issued November 26,
1991 which involved a reduction of an evaluation for a service-connected
elbow problem. In these cases, the Court found that the medical evidence
did not support a finding that there was \"sustained improvement\" in a
disability and therefore a reduction in evaluation was clearly
erroneous. It appeared to the Court that the reductions were based
solely on one VA examination without consideration as to whether the
improvement had been \"sustained\" over a reasonable period of time. The
Court\'s decisions are clear that the medical evidence must support a
finding that improvement in a disability has been sustained for a
reasonable period of time. Medical evidence to support a finding of
\"sustained improvement\" can be from several different sources. For
example, a VA examination together with outpatient treatment records
covering a period of time could be adequate to support such a finding.
Testimony from the claimant, either oral or written, together with
current medical evidence may be adequate to support a reduction in an
evaluation. What will not work, is a case in which a current examination
is essentially the same as the previous examination which resulted in a
confirmed and continued evaluation without any indication that the
rating board found \"improvement\". When appropriate, it is essential
that specialists clearly state in a C&C rating, that improvement has
been noted and that additional medical evidence will be obtained in the
future to determine if the improvement is sustained. This requirement
for \"sustained improvement\" before reduction in an evaluation of a
service connected disability does not apply to disabilities such as
osteomyelitis and TB for which the rating schedule specifically sets out
criteria for reductions in evaluations.

In **[Peel v. Derwinski]{.underline}, U.S. Vet App. No. 90-359**, issued
February 18, 1992, the Court stated that failure to consider the
provision of 3.344 before reducing a disability rating makes the
reduction void ab initio. When that happens, the remedy is to restore
the benefit retroactively.

Before I leave this topic, I would like to point out a recent decision,
**[Collier v. Derwinski]{.underline}, U.S. Vet. App. No. 90-882**,
issued on March 12, 1992. The Court\'s analysis of this case found that
the medical evidence clearly established a period of \"sustained
improvement\" and the reduction from a 100% to 70% evaluation for a
psychiatric disorder was upheld. We anticipate that the
[Collier]{.underline} case will be in the May issue of \"**West\'s
Veterans Appeals Reporter**\".

I have three additional questions I plan to cover briefly.

Q-2: M21-1, paragraph 55.03f, allows for examination by a Physician\'s
Assistant as long as the supervising physician furnishes the diagnosis
and signs the report. Please comment on the impact of this, if any, in
light of BVA remands for specialist examinations.

A: Soon to be released M21-1, Part VI, paragraph 1.03 expands the
criteria for determining whether or not a VA examination is adequate as
currently set out in M21-1 55.03. The examination should meet the
clinical requirements of the Physicians Guide. A VA examination not
meeting those requirements is inadequate. Paragraph 1.03f continues the
allowance for a Physician\'s Assistant provided the supervising
physician furnishes the diagnosis and signs the examination report. When
you request a specialist examination, the medical facility should have
scheduled it with a physician who is a specialist in that area. If that
specialist has a Physician\'s Assistant who conducts a portion of the
examination which is subsequently signed by the doctor [and]{.underline}
you deem the examination to be adequate as provided for in the
Physician\'s Guide, then the examination would in our opinion, be
acceptable. Of course, if the examination was not scheduled to be
conducted by a specialist in the requested area, but was accomplished by
a Physician\'s Assistant and signed by a nonspecialist, the examination
would not be acceptable. It is ultimately the rating specialist\'s
decision as to whether or not an examination is adequate for making a
final decision on the issue under consideration.

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

I am going to have to break in here, we have been advised that the hot
line will be terminated at about 11:50 AM and I want to save some time
to have the Regional Offices ask some questions from the floor. We have
got some answers to other questions that were asked. We will send those
out with the transcript of this hot line. At this time I will open the
floor to questions from the field. Please state your name and where you
are from.

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

A lot of this material has to deal with examinations and physicians and
what not. Is VHA getting a similar hotline?

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

Their Director for Ambulatory Care will be starting a conference call
similar to this in the very near future. So they are concerned and will
be looking into it.

**[ST PAUL:]{.underline}**

I have a question pertaining 646\'s. At least one service organization
is citing COVA decisions on the 646. How do you want us to address this.

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

That is answered in one of the answers that will be provided with the
transcript. So I encourage you to read that. Briefly, the naked citation
of the court case without any discussion of how it applies to facts in
the individual case should be developed with the Service Officer. He
should be asked to provide his reasons or bases and why that decision
applies. If the rating board does decide that the citation goes to the
merits of the issue, then the rating board must make a decision and if
the case is still denied provide a Supplemental Statement of the Case.
If the Board decides that the case does not have any bearing on the
issue under consideration, the case citation can be acknowledged on the
rating on appeal and the case can be certified to BVA. Any other
questions?

**[ST. LOUIS:]{.underline}**

I am curious if the Board of Veterans Appeals is still using their staff
to furnish medical opinions to the Board?

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

The answer to that is that their doctors are being used as medical
advisors to the Board. Not as participants in the decision.

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

As of this time we have a total of l3 physicians who are members of the
board and who act as board members in every capacity as a attorney
would. In addition to those l3, we have an additional group of
physicians who are now not board members but are now medical advisors to
the Board. They are used in two basic capacities. One as a quality
reviewer of BVA decisions before they are dispatched and secondly, to
act as regular medical expertise in response to any questions. But if
they provide a response, it is in writing and a copy of that must be
provided to both the veteran and to the representative and made formally
a part of the record and, of course, opportunity for response has to be
provided to the party.

**[SAN FRANCISCO:]{.underline}**

Concerning going to Social Security to get medical records. Historically
they have not answered our request for medical records. And if you get
the records back and they say that the person is unemployable under
Social Security rules, would we be in a bind with respect to our own
determinations?

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

I don\'t believe you will be in a bind, you will have to weigh the
decision and the evidence provided by Social Security and arrive at your
own conclusion. As far as a procedure for requesting those records, we
are going to get to work on that and see if we can develop a
standardized procedure for getting those records available to you.

I think that\'s just about it for this first hotline. Thank you all for
tuning in and we will see you again on May 7th. Thank you.

**[ADDENDUM TO APRIL 2, 1992 JUDICIAL REVIEW HOTLINE]{.underline}**

Q-3: NOD\'s, and other forms of communication, are being received from
National Service Officers\' listing COVA cases without legal citations,
or any explanations or arguments as to how they are relevant to the
instant case. Are we duty-bound to research the case, and make an
assumption as to the relevance, or may we request the claimant/NSO to
provide us with more details?

A: If the National Service Officer has raised a COVA case as part of the
appellate process, he/she should be providing an explanation or argument
as to how the case is relevant to the issue under appeal. Rating
specialists may request the Service Officer/claimant to provide
additional information before further action is taken on the appeal.
This same rationale also applies to claims in which COVA cases have been
raised by the NSO/claimant before a final decision is made.

Q-4: Can we discuss the cited cases on the Rating on Appeal form when we
certify the case to BVA?

A: If the NSO provides an explanation or argument that goes to the
merits of the issue, then the rating board must make a decision as to
its applicability. If the issue is not granted, then a SSOC must be
prepared to explain the board\'s reasons or bases continuation of the
previous decision. If the cited COVA decision has no bearing on the
issue under consideration, then case citation can be acknowledged on the
Rating on Appeal form as additional argument when the case is certified
to BVA.

Q-5: Is it contemplated that the RO use the criteria that a claim is not
\"well-grounded\" in denying such claim? In what instances would this be
our posture? Is there any plan to create a separate regulation devoted
exclusively to this concept?

A: We can use the criteria that a claim is not well-grounded when the
claim is clearly and unmistakably implausible, not capable of
substantiation. In **[Murphy v. Derwinski]{.underline}, l Vet. App. 78
l990)**, the Court states that the definition of a well grounded claim
being neither defined by the statute nor the legislative history, must
be given a common sense construction. The court stated that a well
grounded claim is a plausible one, one which is meritorious on its own
or capable of substantiation. Such a claim need not be conclusive but
only possible to satisfy the initial burden of 38 CFR 5107. The
regulations staff reports that there are no plans currently to create a
separate regulation for the well grounded claim concept.

Q-6: When will a circular be issued pertaining to the payment of
attorney fees under Public Law 100-687?

A: As of April 1992 the Projects Staff has written a draft of the
revised circular for BVA\'s review. BVA, and Finance, will have to
concur, and then it will have to go back through Admin. It has been
placed on an expedited track.

Q-7: What aspects of specific COVA decisions will be passed down to the
RO for implementation as opposed to the Board of Veterans Appeals? Must
an RO decision adhere to the same requirement under Colvin as that of
the BVA?

A. The Judicial Review staff reviews each COVA decision. A decision
assessment document is done on those decisions which do and may require
a change in policy or approach or change in the way in which we have
been interpreting the statutes and regulations. For all intents and
purposes we are expected to adhere to the same requirements as the BVA.
As stated earlier, in Futch and Tucker, the court stated that a medical
opinion by a rating board/or hearing officer is of no evidential value.

Q-8: Are the BVA Chairman Memos informational or directive in nature?

A: The Chairman\'s Memos are informational in character for the regional
office.

Q-9: The next question involves what should be done prior to
certification in order to avoid remands. By way of example, a
\"current\" examination on appeal may become stale, and prompt BVA
remand for another \"current\" examination.

A: Individuals certifying appeals should develop expertise in
Court-related issues and references, such as the BVA Chairman\'s
memoranda, and be aware of BVA reasoning with respect to cases remanded
locally. BVA requires full articulation of the reasons for remand in BVA
decisions, and circulation of copies of representative remands may one
way to disseminate information about any station trends requiring
particular attention.

Memoranda of interest to those certifying appeals include the following:

01-91-12 Use of 38 C.F.R. § 4.16(c) in Rating Psychiatric Disorders

01-91-20 Finality, New and Material Evidence, and Reopened Claims

01-91-25 Revised Review Process and Decision Format

01-91-27 Multiple Noncompensable Disabilities in Cases for Increased
Ratings

01-91-30 Percentage Disability Ratings in Pension Cases

01-91-39 Remands to Agencies of Original Jurisdiction

01-92-03 Appeals involving Increased Ratings

Current\" examinations are required for substantive reasons, including
those associated with VA duty-to-assist obligations, as interpreted by
the Court. Regional Office personnel are accordingly obliged to request
\"current\" examinations, if otherwise in order, without regard to
whether or not BVA, or the Court, may ultimately remand the case for
another examination.

While exams need not be ordered merely to stay \"current\" on appeal,
new evidence - including testimony of worsening of symptoms - may
trigger new duty-to-assist obligations, requiring re-examination.

Q-10: The next question involves the extent of \"reasons or bases\"
required in rating decisions, from the standpoint of subsequent
appellate review.

A: For the sake of clarity, it is useful to note that there is no
statutory requirement for \"reasons or bases\" in a rating decision. 38
USC § 7104(d)(1) rather provides that BVA decisions will include a
written statement of the Board\'s findings and conclusions, and \"the
reasons or bases for those findings or conclusions\".

Separately, 38 USC § 5104(b) mandates \"a statement of the reasons for
the decision\", along with a summary of the evidence considered, in any
case where the Secretary denies a benefit sought. Strictly speaking,
this law governs the notice of a decision, and not the decision itself.
Rating Boards and Hearing Officers have been tasked with providing
suitable explanations administratively, pursuant to Circular 21-90-1
(Paragraphs 5(a)(5) and (6)).

While the Court has observed, in GILBERT (89-53), that these statutory
requirements are \"similar\", its precedential interpretations have
directly addressed only the obligations of BVA under 38 USC §
7104(d)(1), thus far.

Circular 21-91-18 \"PRINCIPLES OF ADJUDICATION\" (Paragraph 5), dated
11/6/91, contains the current procedural guidelines for explaining
reasons and bases in ratings, and other Regional Office decisions. The
Circular essentially applies certain Court guidelines to ratings, with
particular emphasis on evaluation of all the evidence, adequacy of
rationale, and requirements for independent medical evidence. The
purpose is to reduce remands through application of Court principles
earlier in the claims process.

A recent General Counsel Precedent Opinion (6-92) in the CARTER case,
issued 3/6/92, addresses potential voidance of a rating decision for
failure to cite 38 CFR § 3.343(a), which governs reduction of total
ratings. This opinion notes that specific citation of regulations is not
necessarily required, either by law or regulation. The author\'s
description of what such a rating must contain, if it is to be upheld on
appeal, is perhaps directly responsive to the question posed:

\"Ideally, the rating decision would state in clear terms the legal and
factual basis for it.\"

\"What controls, whatever form the rating decision takes, is whether the
record in its entirety\" supports a conclusion that section 3.343(a) has
been applied by the rating board. (In this connection, the entire
record, includes both the Regional Office notice and Statement of the
Case.)

It should be observed that the revised manual now requires citation of
38 CFR § 3.343(a).

Based on the foregoing considerations, the question posed actually
involves validity of rating rationale, either explicit or implicit, in
terms of proper application of relevant standards, rather than the
extent of reasoning which may be required in order to respond to some
future Notice of Disagreement. In addition, the rating discussion forms
the basis for Authorization notifications, when claims are adversely
decided, and largely shoulders the burden for adequacy in that regard as
well.

The relationship between the nature of discussion needed to sustain a
rating and provide adequate notice, and additional requirements for
reasons for decision in a Statement of the Case, will be separately
addressed in a future hotline. While these areas are closely connected,
there are distinct considerations for cases which have been appealed.

For claims decided adversely, the minimum requirements for rating
discussion, in terms of adequacy of rationale and subsequent notice, may
be summarized as follows:

Regional Offices have a statutory obligation under 38 USC § 5104(b) to
advise beneficiaries of the evidence considered and reasoning, whenever
a benefit sought is denied. The reasoning should be so worded as to
explain the denial to the claimant, and to demonstrate that relevant
statutory and regulatory standards were properly applied. In this
connection, all of the evidence must be addressed, evaluated, and
weighed, so that conclusions are supported by objective analysis, rather
than personal opinion.

While the wording need not follow any specific format, in order to be
sustained on appeal, the Service administratively requires citation of
regulations in some instances.

The discussion should address any specific Court Decisions or General
Counsel Precedent Opinions mentioned by the claimant or representative,
in order to respond to particular arguments raised. Otherwise, rating
discussion should focus on proper application of relevant principles, in
language which will permit appropriate explanation to the beneficiary,
and serve as implicit evidence that relevant precedential
interpretations governed disposition of the case.

Q-11: Does 38 CFR § 4.16(a) create a \"presumption\" of disability (for
purposes of 38 CFR § 4.17), does it shift the burden of proof, and what
evidentiary standard applies?

A: The only \"presumption\" contained in 38 CFR § 4.17 was a conclusive
presumption of permanent and total disability at age 65, which was
removed from the schedule effective 12/16/91.

38 CFR § 4.15 describes certain impairments which are taken to involve
permanent and total disability by regulation, such as permanent loss or
loss of use of both hands. These create conclusive presumptions for
purposes of pension, without resort to 38 CFR § 4.17.

38 CFR § 4.16(a) establishes the minimum schedular evaluations required
for assignment of a total rating based on unemployability. 38 CFR § 4.17
provides that permanence of the percentage requirements described in 38
CFR § 4.16(a) is \"requisite\" for a permanent and total
nonservice-connected disability rating.

The percentage standards are a threshold consideration for allowance of
nonservice-connected benefits by rating boards, when the veteran is
found to be \"unable to secure and follow substantially gainful
employment by reason of such disability\". For veterans who fail to meet
the threshold percentage criteria, but are deemed unemployable, an
extra-schedular allowance is for consideration under 38 CFR § 4.17(b)
and 38 CFR § 3.321(b)(2).

A \"well-grounded claim\" is one which is plausible, or capable of
substantiation. Under 38 USC 5107(a), the VA has duty-to-assist
obligations after the claimant submits evidence of a well-grounded
claim. A veteran who is unemployed due to disability, not due to
misconduct, would have plausible entitlement to nonservice-connected
pension, based on schedular or extra-schedular criteria, irrespective of
percentage requirements.

A well-grounded claim for pension is one in which there is evidence,
including that shown on the application, that the veteran may be
unemployable as a result of disability, and meets other basic criteria
for this benefit. Once such a claim has been filed, the burden of proof
shifts to the Department, to assist the veteran develop all the evidence
pertinent to the claim. There are no presumptions as to the ultimate
outcome of a well-grounded claim, except that it will be developed and
considered under governing rules.

The standard of proof for any claim is the \"benefit-of-the-doubt\"
rule, which means that the claim will be denied only if disproved.

Q-12: The last question addresses whether or not a favorable SSA
decision reopens a nonservice-connected pension claim, when percentage
requirements are not met, and BVA has recently upheld a denial.

A: The evidence from Social Security is new and material evidence, which
makes it plausible that the veteran is unemployable, either on a
schedular or extra-schedular basis. Since the claim is well-grounded, VA
has duty-to-assist obligations to reconsider entitlement. An examination
would be required to sustain continued denial, and the rationale would
need to address the favorable SSA disposition specifically, in terms of
any differing VA criteria and rationale.

**[ADDRESS FOR THE COURT OF VETERANS APPEALS]{.underline}**:

625 Indiana Ave. NW

Washington, DC 20004

**DATES AND TIMES OF JUDICIAL REVIEW CONFERENCE CALLS**

[DATE]{.underline} [TIME]{.underline}

May 7, 1992 11:00 - 12:20

June 4, 1992 11:00 - 12:20

July 6, 1992 11:00 - 12:20

August 6, 1992 11:00 - 12:20

September 3, 1992 12:00 - 12:50

October 1, 1992 11:00 - 12:20

November 2, 1992 11:00 - 12:20

December 3, 1992 11:00 - 12:20