[INDEX]{.underline}

Cases

[Docket Number]{.underline} [Name]{.underline} [Page]{.underline}

90-120 Gardner 1

89-114 Schafrath 2

90-149 Aguilar 4

90-151 Lozano 5

90-804 Ashmore 6

90-829 Biggins 7

90-350 O\'Hare 8

90-196 Colvin 10

90-133 Moore 12

90-162 Lehman 13

90-214 Bailey 15

91-1706 McDowell 17

90-254 Hyder 18

90-649 Jones and Snyder 19

90-142 Washington 21

89-115 Akins 23

89-85 Fallo 25

90-41 Moore 26

89-172 Payne 28

90-181 Hillyard 29

90-1137 Nagler 30

90-735 Baughman 32

List of \"No Recommended Action\" Cases 34

[DECISION ASSESSMENT DOCUMENT]{.underline}

1\. [DOCKET NO.]{.underline}: 90-120

2\. [NAME]{.underline}: Gardner v. Derwinski

3\. [ISSUE(S)]{.underline}: 38 CFR 3.358(c)(3)

4\. [DECISION/ACTION OF COURT]{.underline}:

[Action]{.underline} [Date Issued]{.underline}:

Remand [X ]{.underline} November 25, 1991

Order [ ]{.underline}

Decision [ ]{.underline}

[Held]{.underline}: 38 CFR 3.358(c)(3) is contrary to statutory
authority and outside the scope of the VA\'s authority.

[Facts]{.underline}: Veteran underwent back surgery for a non-service
connected back condition in June, 1986 at a VAMC. He asserts that his
left leg suffered severe nerve and muscle damage as a result of surgery.
His claim for compensation under 38 USC 1151 was denied on 1/26/89. The
rating board found no indication of negligence in the surgical
procedure. On 9/5/89, the rating was confirmed with the decision relying
on 38 CFR 3.358(c)(3) which requires either accident or fault on the
part of the VA for the veteran to receive compensation for increased
disability for any aggravation or injury resulting from treatment at a
VA facility. BVA affirmed stating \"we do not find evidence of fault on
the part of the VA, or of the occurrence of an unforeseen, untoward
event, resulting in permanent additional disability\". The Court holds
38 CFR 3.358(c)(3) unlawful as exceeding the authority of the Secretary
and in violation of the statutory rights granted to veterans by Congress
under section 1151.

[RECOMMENDED VBA ACTION(S)]{.underline}: Review 38 CFR 3.358(c)(3) to
determine changes needed to bring the regulation into compliance with
this decision. Suspend denials in pending claims under 38 CFR 3.358
until further appeal is considered and until this decision can be more
fully analyzed as to the need for regulatory amendment and/or
legislative relief.

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

[Approved]{.underline}?

[X ]{.underline} [ ]{.underline} [/s/  ]{.underline}
[12-2-91 ]{.underline}

Yes No J. Gary Hickman Date

[DECISION ASSESSMENT DOCUMENT]{.underline}

1\. [DOCKET NO.]{.underline}: 89-114

2\. [NAME]{.underline}: Schafrath v. Derwinski

3\. [ISSUE(S)]{.underline}: Reasons and bases, Application of
regulations, Duty to Assist

4\. [DECISION/ACTION OF COURT]{.underline}:

[Action]{.underline} [Date Issued]{.underline}:

Remand [X ]{.underline} November 26, 1991

Order [ ]{.underline}

Decision [ ]{.underline}

[Held]{.underline}: (1) VA must apply all regulations applicable to the
issue under consideration.

\(2\) VA must provide reasons or bases for decision.

\(3\) VA has a statutory duty to assist the appellant in developing
facts pertinent to the claim.

[Facts]{.underline}: The veteran\'s evaluation for a bone spur of the
right elbow was reduced from 10% to 0% based on VA examination that
found no limitation of motion in the elbow. The examiner also stated
that the olecranon tip was \"sensitive to pressure\". In his NOD
statement, veteran reported treatment at a VAOPC in January 1989. He
also stated that, upon examining his arm in January 1989, an unnamed VA
physician \"believed that something was wrong and wanted me to return.
The veteran specifically requested that the Board obtain the records of
that examination and subsequent treatment records. The veteran
repeatedly asserted that the pain in his arm due to the SC elbow injury
prevented him from working as a carpenter. The Court stated that BVA
erred in not considering the impact of pain under the provisions of 38
CFR 4.40 and 4.45. The Court stated that the BVA is not free to ignore
regulations which the VA has adopted and the reasons or bases explaining
why the regulation is not applicable must be stated in any decision. The
Court further stated that the Board was required to consider the
regulation\'s applicability even though not specifically raised by the
claimant. The Court found that the Board erred in not obtaining the
medical records the veteran asked to have considered which is inherent
in VA\'s duty to assist. Finally, the Board erred in basing its decision
upon a single physical examination report viewed in isolation from the
rest of the record. VA regulations require that disability
determinations be based upon the most complete evaluation of the

claimant\'s condition that can feasibly be constructed. The Court cited
38 CFR 3.344 concerning the length of time the evaluation of 10% (11
years) had been in existence and the concept of stabilization. The Court
criticized the content of the VA examination as not containing a full
description of the effects of the disability upon the veteran\'s
ordinary activity including from the point of view of the veteran
working or seeking work and stated that another VA examination should
have been requested. The Court also criticized the BVA decision for not
considering the entire history of the disability.

[RECOMMENDED VBA ACTION(S)]{.underline}: Provide training on this case
at the rating training scheduled for January 1992 and at the hearing
officer session in February 1992. Recommend that the provisions of this
case be placed in M21-1.

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

[Approved]{.underline}?

[X ]{.underline} [ ]{.underline} [/s/  ]{.underline} [1/28/92
 ]{.underline}

Yes No J. Gary Hickman Date

[DECISION ASSESSMENT DOCUMENT]{.underline}

1\. [DOCKET NO.]{.underline}: 90-149

2\. [NAME]{.underline}: Aguilar v. Derwinski

3\. [ISSUE(S)]{.underline}: Claimant\'s status

4\. [DECISION/ACTION OF COURT]{.underline}:

[Action]{.underline} [Date Issued]{.underline}:

Remand [ ]{.underline}

Order [ ]{.underline}

Decision [X ]{.underline} December 16, 1991

[Held]{.underline}: (1) A veteran or spouse who fails to submit
appropriate evidence never attains the status of claimant.

\(2\) The VA is not obliged to determine whether the claim is
well-grounded, nor is it obliged to assist a nonclaimant in developing
the facts pertinent to the claim.

[Facts]{.underline}: BVA denied claim for a widow\'s pension because
appellant had not provided new and material evidence sufficient to grant
a reopening of her claim. The Court affirmed the BVA decision on a
ground not considered by the BVA and held that appellant never proved
her status as a claimant. In January 1956 VA found appellant not to be
the veteran\'s legal widow because she was already married at the time
of her alleged marriage to the veteran. On August 30, 1988, appellant
attempted to reopen her claim for pension benefits, but was denied on
the basis she had not provided new and material evidence sufficient to
grant a reopening of her claim. A veteran\'s spouse seeking benefits
must supply proof of marital status. A veteran or spouse who fails to
submit appropriate evidence never attains the status of claimant. The VA
is not obliged to determine whether the claim is well-grounded, nor is
it obliged to assist such a person in developing the facts pertinent to
the claim. One claiming entitlement as the spouse of a veteran has the
burden to come forward with preponderating evidence of a valid marriage
under the laws of the appropriate jurisdiction. Where such evidence of a
valid marriage is submitted, the VA will determine whether the claim is
otherwise well-grounded. VA gratuitously treated appellant as if she
held the status of a claimant, but need not have accorded her the
benefits and protections of title 38 as she never legitimately attained
the status of a claimant.

[RECOMMENDED VBA ACTION(S)]{.underline}:

Highlight this case in the next SQC training letter and in adjudicator
and rating specialist training sessions.

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

[Approved]{.underline}?

[X ]{.underline} [ ]{.underline} [/s/  ]{.underline} [1/23/92
 ]{.underline}

Yes No J. Gary Hickman Date

[DECISION ASSESSMENT DOCUMENT]{.underline}

1\. [DOCKET NO.]{.underline}: 90-151

2\. [NAME]{.underline}: Lozano v. Derwinski

3\. [ISSUE(S)]{.underline}: Clerical error, Administrative appeals

4\. [DECISION/ACTION OF COURT]{.underline}:

[Action]{.underline} [Date Issued]{.underline}:

Remand [ ]{.underline}

Order [ ]{.underline}

Decision [X ]{.underline} March 21, 1991

[Held]{.underline}: 38 CFR 19.138 and 19.139 permit the VA to clarify
internal disagreements or concerns regarding decisions. VA has no duty
to file an administrative appeal when the rating decision is not in
question.

[Facts]{.underline}: In March 1971, VA granted service connection for a
gunshot wound to his leg evaluated at 10%. Service connection was denied
for hearing loss and malaria with constant dizziness. Veteran was sent
VA Form 21-6782 entitled \"Original Disability Compensation\" which
contained a typed entry \"Deafness, and malaria with constant
dizziness\" listed under the printed item \"Your disabilities listed
below are service-connected but they are less than 10% disabling and
compensation is not payable.\" Entry should have been typed under \"The
evidence does not establish service-connection for\". When the veteran
claimed an increase for hearing loss in October 1988, he was notified
that the original letter was in error. However, the rating board and BVA
did a complete de novo review of the claim. BVA upheld the denial of
service connection for hearing loss. Veteran appealed on the basis that
VA failed to perfect an administrative appeal of the clerical error
awarding him a service-connected rating. He argued that the VA had a
mandatory duty to file an administrative appeal of the 1971 rating
decision if the agency wished to contest it. The Court stated that the
appellant\'s reliance is misplaced as these regulations simply permit
the VA to clarify internal disagreements or concerns regarding
decisions. Appellant also relied on principle of equitable estoppel to
protect the asserted service connection for his hearing loss. The Courts
stated that the VA never made a finding of service connection upon which
appellant may rely. A clerical error cannot be relied upon to invoke an
estoppel against the U.S. for money payments. An inconsistent statement
on VA Form 21-6782 or a similar form cannot contradict the rating
decision.

[RECOMMENDED VBA ACTION(S)]{.underline}:

Highlight this case in the quarterly training letter.

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

[Approved]{.underline}?

[X ]{.underline} [ ]{.underline} [/s/  ]{.underline} [1/23/92
 ]{.underline}

Yes No J. Gary Hickman Date

[DECISION ASSESSMENT DOCUMENT]{.underline}

1\. [DOCKET NO.]{.underline}: 90-804

2\. [NAME]{.underline}: Ashmore v. Derwinski

3\. [ISSUE(S)]{.underline}: Reasons or bases, Failure to address claim

4\. [DECISION/ACTION OF COURT]{.underline}:

[Action]{.underline} [Date Issued]{.underline}:

Remand [X ]{.underline} November 22,1991

Order [ ]{.underline}

Decision [ ]{.underline}

[Held]{.underline}: VA must provide adequate reasons or bases for its
decisions.

[Facts]{.underline}: On July 11, 1990, BVA denied increased evaluations
for post-traumatic facial asymmetry, residuals of cerebral concussion,
and maxillary sinusitis. The Court held that the decision not to
increase the evaluation for the post-traumatic facial asymmetry is not
clearly erroneous. The Court stated that the BVA failed to provide
adequate reasons or bases for its decisions not to increase the
maxillary sinusitis and residuals of cerebral concussion. It also found
that the BVA erroneously failed to address a claim for service
connection for a psychological disorder. In both his correspondence to
the VA and in his oral hearing, veteran repeatedly asserted that he
suffers from numerous sinus headaches and \"constant drainage\" from his
sinuses. In light of the absence of any cited clinical evidence either
supporting or disputing his claims, the 10% evaluation would be in
order. BVA failed to make any explicit credibility findings with respect
to the veteran\'s testimony and therefore failed to provide adequate
reasons or bases for its decision. Veteran also stated at his oral
hearing that he was suffering from tension headaches, dizziness and
insomnia all of which he attributed to the concussion he received in the
1954 accident. BVA failed to provide adequate reasons or bases for its
decision not to increase the evaluation for the cerebral concussion.
Since reopening his claim, veteran consistently asserted that he is
suffering from a psychological disorder arising from the 1954 accident.
Both the RO and BVA ignored the claim. Remand to BVA included an order
to specifically decide this issue.

[RECOMMENDED VBA ACTION(S)]{.underline}:

Consider this case when VBA Circular 21-91-18, Principles of
Adjudication, is incorporated into M21-1 to determine if any additional
instructions are necessary.

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

[Approved]{.underline}?

[X ]{.underline} [ ]{.underline} [/s/  ]{.underline} [1/28/92
 ]{.underline}

Yes No J. Gary Hickman Date

[DECISION ASSESSMENT DOCUMENT]{.underline}

1\. [DOCKET NO.]{.underline}: 90-829

2\. [NAME]{.underline}: Biggins v. Derwinski

3\. [ISSUE(S)]{.underline}: Presumptions, Clearly Erroneous Decisions,
Active Duty

4\. [DECISION/ACTION OF COURT]{.underline}:

[Action]{.underline} [Date Issued]{.underline}:

Remand [ ]{.underline}

Order [ ]{.underline}

Decision [X]{.underline} September 25, 1991

[Held]{.underline}: BVA decision affirmed in holding multiple sclerosis
(MS) was not incurred during a period of active duty for training, and
claimant was not entitled to the seven year presumption for MS, as not
meeting the definition of a \"veteran\".

Two concurring decisions were filed. One raised a \"Catch 22\" issue in
that claimant could not use the seven year presumption for MS, as her
service did not qualify her as a \"veteran\", but the only way to
satisfy the requisite service requirement would be to use the
presumption. This allegedly renders the presumption a nullity. The other
opinion suggested that if a claimant sustained [any]{.underline}
disability during a period of active duty for training, that would have
qualified the service as active duty, and presumptions would apply.

[Facts]{.underline}: Claimant joined the S.D. National Guard in 1979,
served on active duty for training from May 24, 1980 to August 30, 1980,
and for four days in January 1984. No abnormalities were noted on
medical exams. Appellant, on a September 9, 1983 medical exam, indicated
no serious illness or injury since she joined the national guard.
Appellant sprained her back lifting a typewriter on January 3, 1984. She
was examined and returned to full military duty on January 11, 1984. In
April 1985, she was found to have MS. She filed a claim for
service-connection for the disability on May 20, 1988, which was denied
on July 6, 1988. Claimant stated at a hearing before a Hearing Officer
that she began to have problems in the summer of 1980 and kept swaying
while marching. She further testified before a BVA Travel Board, she
began to have eye troubles during the summer of 1980 while on active
duty training. BVA denied the claim stating MS was not incurred or
aggravated during active duty for training. BVA also concluded that she
was not entitled to the seven year presumption for MS.

[RECOMMENDED VA ACTION(S)]{.underline}:

Revise M21-1, Part VI, Chapter 7 to include a discussion of the
application of presumption of service connection to ACDUTRA.

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

[Approved]{.underline}?

[X ]{.underline} [ ]{.underline} [/s/  ]{.underline}
[12/21/91 ]{.underline}

Yes No J. Gary Hickman Date

[DECISION ASSESSMENT DOCUMENT]{.underline}

1\. [DOCKET NO.]{.underline}: 90-350

2\. [NAME]{.underline}: O\'Hare v. Derwinski

3\. [ISSUE(S)]{.underline}: Reasons and Bases, Unavailability of Service
Medical Records, Reasonable Doubt

4\. [DECISION/ACTION OF COURT]{.underline}:

[Action]{.underline} [Date Issued]{.underline}:

Remand [X ]{.underline} July 11, 1991

Order [ ]{.underline}

Decision [ ]{.underline}

[Held]{.underline}: (1) The Board of Veterans Appeals must make an
express credibility determination regarding statements submitted in
support of a veteran\'s claim.

2\. Where a veteran\'s service medical records are presumed destroyed,
the Board has a heightened obligation to explain its findings and
conclusions and to consider carefully the benefit-of-the-doubt rule.

[Facts]{.underline}: The veteran claims an in service injury to his
right knee sometime between November 1944 and February 1945. He claims
treatment in service for the impairment at a base hospital and for the
past 45 years. His service medical records are missing and assumed
destroyed in the 1973 Federal Records Center fire. The veteran submitted
statements in support of his claim from two sisters who indicate that
when he went into service he had no leg problems, but when he came out
he had hurt his leg and thigh and that he went to doctors the last 45
years. His physician described persistent problems with pain in right
hip and knee required treatment (and which bother the veteran) on a
fairly regular basis. The BVA decision dismissed this evidence with the
conclusory statement that it was insufficient to demonstrate service
connection in the face of a search of the January and February 1945
morning reports for his military base, which were negative for any
reference to the veteran or his injury.

COVA remanded the matter to BVA to readjudicate the case. The court
indicated this was because in two important respects the findings and
conclusions were not accompanied by \'reasons or bases\' adequate to
explain to the veteran and COVA its factual findings and conclusions (38
USC 4004(d)(1), including those findings found to be persuasive or
unpersuasive.

\(1\) The decision should have included an analysis of the creditability
or probative value of the evidence provided in support of the veteran\'s
claim (See Gilbert v. Derwinski (89-53)) and it should have made express
creditability determinations regarding the statements of the veteran,
his sisters and physician (See Ohland v. Derwinski (90-251)).

\(2\) The decision did not take into consideration the heightened
obligation to explain its findings and conclusions and consider
carefully the benefit-of-the-doubt rule in a case where the service
medical records are presumed destroyed.

[RECOMMENDED VA ACTION(S)]{.underline}:

Include a paragraph in the section on miscellaneous rating
considerations in chapter 7 of M21-1, part VI concerning consideration
of service connection where the service medical records were destroyed.

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

[Approved]{.underline}?

[X ]{.underline} [ ]{.underline} [/s/  ]{.underline}
[11/25/91 ]{.underline}

Yes No J. Gary Hickman Date

[DECISION ASSESSMENT DOCUMENT]{.underline}

1\. [DOCKET NO.]{.underline}: 90-196

2\. [NAME]{.underline}: Colvin v. Derwinski

3\. [ISSUE(S)]{.underline}: Conclusion of Law, \"New and Material,\"
\"Benefit of the Doubt,\" Reasons and Bases, Difference of Medical
Opinion

4\. [DECISION/ACTION OF COURT]{.underline}:

[Action]{.underline} [Date Issued]{.underline}:

Remand [X ]{.underline} March 8, 1991

Order [ ]{.underline}

Decision [ ]{.underline}

[Held]{.underline}: 1. A finding of the Board of Veterans Appeals that
evidence submitted to support the reopening of a claim is not material
is a conclusion of law.

2\. A conclusion of law by the Board of Veterans Appeals is entitled to
no judicial deference by the Court of Veterans Appeals.

3\. Evidence is considered new when it is not merely cumulative of other
evidence on the record and is considered material when it is relevant
and probative of the issue at hand.

4\. To justify a reopening of a claim on the basis of new and material
evidence, there must 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.

5\. The \"benefit of the doubt\" standard applicable to the fact finder
in veterans benefits jurisprudence necessarily lowers the threshold of
whether the new and material evidence is sufficient to change the
outcome.

6\. Board of Veterans Appeals panels may consider only independent
medical evidence to support their findings.

7\. If the medical evidence of record is insufficient, or, in the
opinion of the Board, of doubtful weight or credibility, the Board is
always free to supplement the record by seeking an advisory opinion,
ordering a medical examination, or citing recognized medical treatises
in its decision that clearly support its ultimate conclusions.

[Facts]{.underline}: The veteran served in the military from March 21,
1966, through February 2, 1968. In 1982 he was diagnosed as having
multiple sclerosis. His claim for multiple sclerosis was disallowed. The
veteran sought to reopen his claim by submitting evidence which included
opinions of two physicians who examined him in 1987 and 1988 and
concluded that his multiple sclerosis began in service or within the 7
year presumptive period. The regional office declined to reopen the
claim on the grounds that the statements were new, but not material,
evidence. BVA agreed. COVA disagreed and remanded.

[RECOMMENDED VA ACTION(S)]{.underline}: It is recommended that Part VI,
Chapter 2 be revised to more clearly explain determinations of probative
value of physicians\' opinions and citation of medical testimony or
treatises to the contrary.

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

[Approved]{.underline}?

[X ]{.underline} [ ]{.underline} [/s/  ]{.underline}
[12/30/91 ]{.underline}

Yes No J. Gary Hickman Date

[DECISION ASSESSMENT DOCUMENT]{.underline}

1\. [DOCKET NO.]{.underline}: 90-133

2\. [NAME]{.underline}: Moore v. Derwinski

3\. [ISSUE(S)]{.underline}: Substantially Gainful Employment

4\. [DECISION/ACTION OF COURT]{.underline}:

[Action]{.underline} [Date Issued]{.underline}:

Remand [ ]{.underline}

Order [ ]{.underline}

Decision [X ]{.underline} July 10, 1991

[Held]{.underline}: The fact that claimant was able to work a few hours
per day and only sporadically did not constitute ability to engage in
substantially gainful employment.

[Facts]{.underline}: The combined evaluation of the veteran\'s
service-connected disabilities was 90%. His primary disabilities were
hip and back problems. The veteran was approximately 63 years old and
had a master\'s degree in education. His claim for individual
unemployability was denied and BVA upheld.

The evidence of record showed that over three years the veteran had
earned \$8,800 as a part-time tutor. Also of record was a statement by a
VA physician that the veteran could not work. BVA apparently took the
position that the veteran\'s part-time work plus his educational
background convinced it that he was not in fact unemployable due to his
service-connected disabilities. COVA found this determination to be
\"clearly erroneous\" and reversed the BVA decision.

[RECOMMENDED VBA ACTION(S)]{.underline}: Regulations are being revised.
Recommend that when revision has been completed, M21-1 be reviewed for
updating.

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

[Approved]{.underline}?

[X ]{.underline} [ ]{.underline} [/s/  ]{.underline}
[12/30/91 ]{.underline}

Yes No J. Gary Hickman Date

[DECISION ASSESSMENT DOCUMENT]{.underline}

1\. [DOCKET NO.]{.underline}: 90-162

2\. [NAME]{.underline}: Lehman v. Derwinski

3\. [ISSUE(S)]{.underline}: Post Traumatic Stress Disorder,
Stabilization of Disability Evaluation.

4\. [DECISION/ACTION OF COURT]{.underline}:

[Action]{.underline} [Date Issued]{.underline}:

Remand [ ]{.underline}

Order [ ]{.underline}

Decision [X ]{.underline} July 1, 1991

[Held]{.underline}: 1. The regulation governing stabilization of
disability evaluation, 38 C.F. R. 3.344, does not apply to disabilities
which have not become stabilized and are likely to improve.

2\. A parenthetical phrase setting forth a five year time frame
following a requirement that the stability of disability provisions only
apply to ratings which have continued for long periods at the same level
is merely a guideline, not a mandate. (38 C.F.R. 3.344(c))

[Facts]{.underline}: The veteran served in Vietnam where he was injured
by a mine explosion in 1969. He was hospitalized for 5 weeks for severe
lacerations of the shoulder and jaw. In July of 1983 the veteran was
hospitalized for alcoholism and in October of 1983 he was diagnosed as
having dysthymia, atypical anxiety disorder, history of alcohol
dependence, occupational problems, chronic PTSD, and interpersonal
problems. In October 1984 the veteran reopened his claim for service
connection for his psychiatric problems (an original claim was filed
during 1983). Service connection for PTSD at the 50% rate was granted
retroactive to 1983. The veteran was examined by a VA psychiatrist in
May of 1988. The psychiatrist found that he was suffering from a very
mild form of PTSD and classified him as having a personality disorder.
Based on the examination, the evaluation was reduced to 30%. On appeal,
the veteran contended that the reduction violated 38 CFR 3.344 which
prohibits reduction, based on a single examination, of diseases subject
to episodic improvement, unless all the evidence warrants the conclusion
that sustained improvement has been demonstrated. VA argued that 38 CFR
3.344 was inapposite because it applies only to ratings which have
continued for 5 years or more. At the time of the reduction, the 50%
evaluation for PTSD had been in effect for just about 5 years. COVA
ordered that the 50% evaluation be restored and stated that the \"5
years or more\" in 38 CFR 3.344 was just a guideline as opposed to a
hard and fast rule. COVA also objected to the 1988 rating which reduced
the veteran\'s evaluation to 30% because it failed to review the current
evaluation in relation to the history of the disability as required by
38 CFR 4.1 and 4.2. Finally, the Court said that VA erred in its
apparent failure to consider evidence concerning the veteran\'s
industrial impairment in violation of 38 CFR 4.130 which states that
\"two of the most important determinants of disability are time lost
from gainful work and decrease in work efficiency.\"

[RECOMMENDED VBA ACTION(S)]{.underline}: It was recommended in [Swan v.
Derwinski]{.underline} (89-75) that M21-1 be revised to emphasize the
importance of considering 38 CFR 3.343 and a veteran\'s entire
disability history when a reduction in evaluation appears to be in
order. Recommend that M21-1, Part VI, 9.01c be revised to cover 38 CFR
4.2.

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

[Approved]{.underline}?

[X ]{.underline} [ ]{.underline} [/s/  ]{.underline} [1/23/92
 ]{.underline}

Yes No J. Gary Hickman Date

[DECISION ASSESSMENT DOCUMENT]{.underline}

1\. [DOCKET NO.]{.underline}: 90-214

2\. [NAME]{.underline}: Bailey v. Derwinski

3\. [ISSUE(S)]{.underline}: Service connection for post-traumatic
osteoarthritis of the knees, hips, spine, left ankle, and shoulders.

4\. [DECISION/ACTION OF COURT]{.underline}:

[Action]{.underline} [Date Issued]{.underline}:

Remand [X ]{.underline} September 5, 1991

Order [ ]{.underline}

Decision [X ]{.underline} September 5, 1991

[Held]{.underline}: The January 31, 1990, finding of the BVA that the
appellant\'s right shoulder arthritis was not traumatic in nature is
reversed as being arbitrary and capricious, an abuse of discretion, or
otherwise not in accordance with the law. This claim is remanded for a
determination of the degree of disability of the right shoulder
arthritis, including a determination of whether the arthritis had
manifested itself to the degree of 10 percent for purposes of
presumptive service connection under 38 U.S.C. 1112(b)(12). The issue of
service connection for arthritis of the knees, hips, spine, left ankle,
and left shoulder is vacated and remanded for readjudication.

[Facts]{.underline}: The appellant had active duty during WWII. On
February 10, 1942, his plane was shot down over Germany. He was captured
and held as a POW for 14 1/2 months, until April 26, 1945. In early
1947, he filed a claim with VA for disability compensation for arthritis
and other disabilities. He submitted a medical statement dated January
21, 1947, from a Dr. Stewart, who stated that he had been treating the
veteran for two months for acute arthritis. An examination on January
23, 1947, revealed no orthopedic abnormality. The claim was denied in
April 1947. Subsequently, statements were received detailing a forced
parachute jump from 13,000 feet, cold conditions of the POW camps and a
forced march from February to April 1945. In January 1948, a second
statement from Dr. Stewart showed the veteran had complained of pain in
the hands, feet, and knees in 1947. He stated the veteran clearly had an
acute arthritis of the knees. In 1949, three statements from fellow POWs
were submitted detailing the conditions of their captivity. A VA
examination showed complaints of pain in the knees and right shoulder.
Diagnosis was \"organic orthopedic disease not found.\" In April 1949,
the RO awarded service connection for a disability related to his POW
experiences, but unrelated to arthritis. In 1951, he complained of
stiffness and weakness of the left knee. Examination showed no swelling,
deformity or tenderness of any major joint. The arthritis claim was
again denied. A diagnosis of osteoarthritis, left knee, was made in
1974. His

claim was again denied in 1978 and 1982. In 1983, the BVA issued a
decision denying service connection for arthritis as not being the
result of the veteran\'s experiences as a POW. In January 1984, a POW
protocol examination produced a diagnosis of osteoarthritis,
generalized, 10-years plus. Both knees had been replaced. In January
1987, another VA examination diagnosed arthritis of multiple joints,
including post-traumatic arthritis. As to the right shoulder, the
examiner stated the patient appears to have had previous shoulder
trauma, perhaps even dislocations, and this is a residual
osteoarthritis. On February 8, 1988, the BVA issued a decision based
upon a de novo review of the claim as a result of the enactment of
Public Law 99-576 which added post-traumatic arthritis to the list of
former POW presumptive disorders. The BVA granted service connection for
post-traumatic arthritis of the wrists and right ankle, both of which
were presumed to be related to service. The BVA found that arthritis
involving other joints is not shown to be of service origin or to be
traumatic in nature. Subsequent medical statements were received
indicating that the arthritis in the joints is traumatic in nature. The
claim continued to be denied by the RO and the Board. New and material
evidence was submitted to reopen the claim which continued to be denied.

[RECOMMENDED VA ACTION(S)]{.underline}:

Emphasize in the next Quarterly training letter the requirement of
resolving reasonable doubt on behalf of the veteran in claims involving
post-traumatic arthritis in former POWs, particularly in cases with
medical opinions supporting a diagnosis of traumatic arthritis and no
affirmative evidence showing intercurrent injury or disease.

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

[Approved]{.underline}?

[X ]{.underline} [ ]{.underline} [/s/  ]{.underline}
[11/25/91 ]{.underline}

Yes No J. Gary Hickman Date

[DECISION ASSESSMENT DOCUMENT]{.underline}

1\. [DOCKET NO.]{.underline}: 91-1706

2\. [NAME]{.underline}: McDowell v. Derwinski

3\. [ISSUE(S)]{.underline}: Attorney representation

4\. [DECISION/ACTION OF COURT]{.underline}:

[Action]{.underline} [Date Issued]{.underline}:

Remand [ ]{.underline}

Order [ ]{.underline}

Decision [ ]{.underline}

[Held]{.underline}:

[Facts]{.underline}: The Court has been notified that Mr. Timothy J.
Kelleher, Esq., Military Order of the Purple Heart represents the
appellant in an appeal. Mr. Kelleher was contacted on December 12, 1991
concerning the affect of his representation on the activities of the
regional office, including any subsequent actions as a result of a
remand. Mr. Kelleher stated that once he becomes the attorney in an
appeal to the Court, he wants all correspondence, requests for
information, etc. sent directly to him.

[RECOMMENDED VBA ACTION(S)]{.underline}:

Notifications of representation before the Court by Mr. Kelleher have
been received on several cases. Notifications of representation by DAV
attorneys have also been received for several cases. DAV has indicated a
different position, i.e., continue to utilize the service officers at
the regional office for communications, etc. Other service organizations
may also employ attorneys who will represent appellants. Recommend
solicitation of outside views regarding the Court and Service
Organatization attorney, obtain General Counsel legal opinion and then
publish formal guidelines.

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

[Approved]{.underline}?

[X ]{.underline} [ ]{.underline} [/s/  ]{.underline}
[12/26/91 ]{.underline}

Yes No J. Gary Hickman Date

[DECISION ASSESSMENT DOCUMENT]{.underline}

1\. [DOCKET NO.]{.underline}: 90-254

2\. [NAME]{.underline}: Hyder v. Derwinski

3\. [ISSUE(S)]{.underline}: Reasons and Bases

4\. [DECISION/ACTION OF COURT]{.underline}:

[Action]{.underline} [Date Issued]{.underline}:

Remand [X ]{.underline} April 15, 1991

Order [ ]{.underline}

Decision [ ]{.underline}

[Held]{.underline}: 1. Lay hypothesizing, particularly in the absence of
any supporting medical authority serves no constructive purpose and
cannot be considered by the Court of Veterans Appeals.

2\. VA has a duty to assist claimant develop facts pertinent to the
claim. A specialist examination recommended by the VA\'s examining
physician should have been conducted.

3\. BVA must identify the findings it deems crucial to its decision and
account for evidence which it finds to be persuasive or unpersuasive.

4\. The regulatory provisions relating to unemployability and total
disability are confusing, and their relationship to the statute
governing pension is unclear.

[Facts]{.underline}: The veteran had service during the Vietnam era. A
claim for pension was filed in June 1988. The record contained
references to three separate post-service laminectomies. Her
physician\'s opinion was she was unable to sit or stand for more than
two hours any work day, and she suffers pain even with very minimal
activity. VA examination noted a previous herniated lumbar vertebral
disc; three prior lower back operations with lower back pain and nerve
root sciatica to left lower extremity, and mild to moderately
overweight. The examining physician recommended a further examination by
an orthopedist or neurosurgeon. This examination did not take place. The
RO denied the claim stating the evidence did not establish disabilities
of sufficient severity to prevent substantially gainful employment. BVA
affirmed.

[RECOMMENDED VA ACTION(S)]{.underline}:

Initiate a change to M21-1, Part VI, Chapter 1 concerning required
actions to deal with recommendations for additional tests, x-rays, or
specialists examinations.

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

[Approved]{.underline}?

[X ]{.underline} [ ]{.underline} [/s/  ]{.underline} [12/2/91
 ]{.underline}

Yes No J. Gary Hickman Date

[DECISION ASSESSMENT DOCUMENT]{.underline}

1\. [DOCKET NO.]{.underline}: 90-649

2\. [NAME]{.underline}: Jones v. Derwinski

3\. [ISSUE(S)]{.underline}: Communications with attorneys; VA Form 2-22a

4\. [DECISION/ACTION OF COURT]{.underline}:

[Action]{.underline} [Date Issued]{.underline}:

Remand [ ]{.underline}

Order [ ]{.underline}

Decision [X ]{.underline} November 26, 1991

[Held]{.underline}: (1) Initiating communication by the Chief Benefits
Director or employees of the Veterans Benefits Administration with any
claimant represented (now or in the future) by petitioner Keith D.
Snyder concerning such representation and the nature and scope of any
fee agreement, except where such communication is in furtherance of an
investigation or proceeding conducted pursuant to 38 USC 5904(b) is
prohibited.

\(2\) Sending, transmitting, or in any way disseminating to claimants or
representatives blank editions of VA 2-22a which predate the date of
enactment of the VJRA, November 18, 1988, is prohibited.

\(3\) Sending, transmitting, or in any way disseminating to claimants or
representatives blank copies of VA Form 2-22a (APR 1991) unless block 11
and insofar as it pertains to attorneys, the clause \"it is understood
and agreed that\" of block 12 are deleted or masked is prohibited.

[Facts]{.underline}: On March 27, 1991 the Court consolidated two cases
in which it was alleged that a regional office had sent a letter to a
represented claimant which contained outdated and wrong information and
which impaired the attorney-client relationship by implying that the fee
agreement could result in the criminal conviction of the attorney.
Having found a factual predicate for these allegations, the Court
refrained from imposing sanctions based upon reliance on statements from
the Secretary\'s representative that steps were being taken within the
Agency to ensure that such illegal communications would be stopped. The
Adjudication Officer of a regional officer sent the petitioner, Mr.
Snyder, an outdated VA Form 2-22a on October 11, 1991, thirty-one days
after oral argument in this case, twenty-four days after the
Secretary\'s memorandum on the subject of \"Judicial Review
Implementation\" and eighteen days after the Chief Benefits Director
issued Circular 20-91-19 which was intended to prevent \"future improper
communications with respect to fee agreements between claimants and
their attorneys\". The Court found block 11 of VA Form 2-22a (APR 1991)
unlawful.

The Court also found the words \"It is understood and agreed that\" of
block 12, insofar as they refer to attorneys, un lawful.

[RECOMMENDED VBA ACTION(S)]{.underline}: Notify all regional offices to
cease all communications with any claimants represented by Mr. Keith D.
Snyder (now or in the future) concerning such representation or the
nature and scope of any fee agreement. Destroy all copies of VA Form
2-22a dated prior to April 1991. Edit all VA Forms 2-22a (APR 1991) by
deleting or masking block 11 and the words \"It is understood and agreed
that\" in block 12 before furnishing it to any claimant or
representative until this decision can be more fully analyzed as to the
need for procedural changes. Revise M21-1, Part III, Chapter 12 to
incorporate this Court decision.

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

[Approved]{.underline}?

[X ]{.underline} [ ]{.underline} [/s/  ]{.underline}
[12/20/91 ]{.underline}

Yes No J. Gary Hickman Date

[DECISION ASSESSMENT DOCUMENT]{.underline}

1\. [DOCKET NO.]{.underline}: 90-142

2\. [NAME]{.underline}: Washington v. Derwinski

3\. [ISSUE(S)]{.underline}: Reasons and Bases, Proper Application of
Rating Schedule,

4\. [DECISION/ACTION OF COURT]{.underline}:

[Action]{.underline} [Date Issued]{.underline}:

Remand [X ]{.underline} September 16, 1991

Order [ ]{.underline}

Decision [ ]{.underline}

[Held]{.underline}: (1) The decision of BVA was inconsistent in
associating aspects of disability with rating criteria. The rating
criteria used were improperly applied. Rating criteria are discrete and
noninterchangeable elements as used in the Schedule.

\(2\) BVA failed to provide \"reasons or bases\" for the rejection of
the VA psychiatrist\'s diagnosis of the veteran\'s social and industrial
adaptability.

\(3\) BVA made contradictory statements concerning the nature of the
veteran\'s condition.

Facts: Appellant served in the Navy from August 1974 to September 1975.
He struck his head in March 1975 and reported losing consciousness. He
reported another trauma to the head when he attempted to break up a
fight, which also rendered him unconscious. He began to have headaches
after the first trauma. In response to a claim for benefits, two VA
exams were conducted which produced a description of two types of
headaches. The VA neuropsychiatrist\'s diagnosis was: 1.
Psychophysiologic musculoskeletal disorder manifested by tension
headaches; 2. Head injury not found at this time. Service-connection was
granted for diagnosis 1 (10%) under DC 9505, and at 0% for a disfiguring
scar of forehead. An appeal led to an increase in the scar to 10%. A
claim for increase for each disability was filed in June 1987, as well
as a claim for 100% for unemployability. A copy of a decision by a SSA
Administrative Law Judge awarding benefits based on unemployability was
also submitted, indicating severity of impairments precluded employment
for at least 12 consecutive months. Another VA examination (by a
physician who also was the treating doctor) found social adjustment to
be \"minimal\" and industrial adjustment to be \"moderate to nil\". In
addition, a neuropsychologist tested the claimant and reported a poor
prognosis for outpatient psychiatric or psychological treatment. The
ratings were \"C&C\"d\", and unemployability was denied.

The veteran at a hearing stated he worked from October 1982 to May 1985,
during which time he was out sick half of the time. He also stated he
was taking a real estate brokers course, seeking self-employment to
avoid stress. A confirmed rating and denial for unemployability were
appealed. BVA increased the musculoskeletal rating to 30% and affirmed
the denial of unemployability..

[RECOMMENDED VA ACTION(S)]{.underline}:

Consider this Court remand when the psychiatric portion of the schedule
is reviewed.

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

[Approved]{.underline}?

[X ]{.underline} [ ]{.underline} [/s/  ]{.underline} [12/2/91
 ]{.underline}

Yes No J. Gary Hickman Date

[DECISION ASSESSMENT DOCUMENT]{.underline}

1\. [DOCKET NO.]{.underline}: 89-115

2\. [NAME]{.underline}: Akins v. Derwinski

3\. [ISSUE(S)]{.underline}: Presumption of Soundness, Presumption of
Aggravation, \"Clear and Unmistakable Evidence,\" \"Clear and
Unmistakable Error\"

4\. [DECISION/ACTION OF COURT]{.underline}:

[Action]{.underline} [Date Issued]{.underline}:

Remand [ ]{.underline}

Order [ ]{.underline}

Decision [ ]{.underline}x[ ]{.underline} 4-23-91

[Held]{.underline}: 1. The factual predicate demonstrated by the
evidentiary presumptions of soundness upon induction and of aggravation
in service upon a showing of an increase in disability have important
evidentiary value and, to that extent, are the functional equivalent of
evidence.

2\. When evidentiary presumptions which bear directly and substantially
on the issue of entitlement to service connection, were not previously
considered it provides a basis for reopening of a claim.

3\. \"Clear and unmistakable evidence\" and \"clear and unmistakable
error\" represent two fundamentally different ideas.

4\. \"Clear and unmistakable evidence\" describes the burden of proof,
at a fact-finding level, necessary to overcome a presumption.

5\. \"Clear and unmistakable error\" describes the legal test employed
in reviewing a previous decision.

6\. \"Clear and unmistakable evidence\" describes the persuasiveness of
evidence while \"clear and unmistakable error\" requires that error,
otherwise prejudicial, must appear undebatedly.

[Facts]{.underline}: A 1946 rating denied this wartime veteran\'s claim
for service connection for a condition as existing prior to service and
not aggravated while on active duty. In 1988 the veteran claimed that
the 1946 denial was clearly and unmistakably erroneous. This was denied
and BVA upheld the denial. CVA found the 1946 denial to be clearly and
unmistakably erroneous because there was not clear and unmistakable
[evidence]{.underline} to overcome the presumption under 38 CFR 3.306(b)
that aggravation during service was not due to natural progression of
the disability.

[RECOMMENDED VA ACTION(S)]{.underline}:

Remind rating boards of the presumption of service aggravation by means
of the quarterly C&P Quality Improvement Training Letter or during
rating training at the Training Academy.

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

[Approved]{.underline}?

[X ]{.underline} [ ]{.underline} [/s/  ]{.underline}
[10/29/91 ]{.underline}

Yes No J. Gary Hickman Date

[DECISION ASSESSMENT DOCUMENT]{.underline}

1\. [DOCKET NO.]{.underline}: 89-85

2\. [NAME]{.underline}: Fallo v. Derwinski

3\. [ISSUE(S)]{.underline}: Reasons and Bases, Medical Opinion

4\. [DECISION/ACTION OF COURT]{.underline}:

[Action]{.underline} [Date Issued]{.underline}:

Remand [ ]{.underline}x[ ]{.underline} 3-14-91

Order [ ]{.underline}

Decision [ ]{.underline}

[Held]{.underline}: A medical opinion proffered by a Board of Veterans
Appeals physician requires a statement of reasons or bases for the
opinion and should include citations to relevant medical treatises,
journals, or other information relied upon.

[Facts]{.underline}:

This is another case remanded for compliance with 38 USC 4004(d)(1).

[RECOMMENDED VA ACTION(S)]{.underline}:

Emphasize this issue during Hearing Officer training.

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

[Approved]{.underline}?

[X ]{.underline} [ ]{.underline} [/s/  ]{.underline}
[10/24/91 ]{.underline}

Yes No J. Gary Hickman Date

[DECISION ASSESSMENT DOCUMENT]{.underline}

1\. [DOCKET NO.]{.underline}: 90-41

2\. [NAME]{.underline}: Moore v. Derwinski

3\. [ISSUE(S)]{.underline}: Duty to Assist, Scope of Review

4\. [DECISION/ACTION OF COURT]{.underline}:

[Action]{.underline} [Date Issued]{.underline}:

Remand [ ]{.underline}x[ ]{.underline} 7-22-91

Order [ ]{.underline}

Decision [ ]{.underline}

[Held]{.underline}: 1. When a claimant has met his burden under 38
U.S.C. 5107(a) of submitting evidence sufficient to justify a belief by
a fair and impartial individual that the claim is well grounded, the
burden the shifts to the Secretary to assist the claimant in developing
facts pertinent to the claim. (Slip op. p. 7)

2\. The Secretary\'s duty to assist a claimant in developing facts
pertinent to the claim applies to all relevant facts, not just those for
or against a claim. (Slip op. pp. 7-8)

3\. The Court of Veterans Appeals is a court of appeals whose review is
limited to the record of proceedings before the Secretary and the Board.
(38 U.S.C. 7252(b)) (Slip op. p. 9)

4\. The Court of Veterans Appeals is not permitted to address in the
first instance evidence submitted to it because it was not in the record
of the proceedings before the Board. (Slip op. p. 9)

[Facts]{.underline}:

SGO records show that this WW II veteran was hospitalized for 69 days
for trench foot. SMRs are not available. In 1988 the veteran filed a
claim for service connection for frozen feet and subsequently stated
that he had not sought treatment for his feet since discharge until just
recently at a VAMC. A VA examination diagnosed history of frozen feet
with degenerative arthritis lumbar and plantar surface of the calcaneal
tuberosities. Service connection for residuals of frozen feet was denied
and the veteran stated on his Substantive Appeal, in part, that when he
was discharged the doctor wanted to keep him in the Army for further
treatment of his feet but he wanted to go home. He also stated that he
has always been bothered with this condition. CVA vacated the BVA denial
and remanded because BVA (1) did not explain its basis for rejecting the
veteran\'s statement that he had always been bothered with foot
problems, (2) did not make reference to or evaluate the VA physician\'s
reference to possible residuals of frozen feet and (3) did not recognize
the inadequacy of the VA examination (the report failed to include any
opinion as to possible relationship between the trench feet and
subsequent development of degenerative arthritis of the heels). CVA
stated that the duty to assist was particularly great in this case
because of the unavailability of SMRs and the application of section
354(b) with respect to a combat veteran.

[RECOMMENDED VA ACTION(S)]{.underline}:

Highlight this case in the Quarterly Training Letter.

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

[Approved]{.underline}?

[X ]{.underline} [ ]{.underline} [/s/  ]{.underline}
[10/24/91 ]{.underline}

Yes No J. Gary Hickman Date

[DECISION ASSESSMENT DOCUMENT]{.underline}

1\. [DOCKET NO.]{.underline}: 89-172

2\. [NAME]{.underline}: Payne v. Derwinski

3\. [ISSUE(S)]{.underline}: Reasons or Bases for Decision

4\. [DECISION/ACTION OF COURT]{.underline}:

[Action]{.underline} [Date Issued]{.underline}:

Remand [X ]{.underline} November 19, 1990

Order [ ]{.underline}

Decision [ ]{.underline}

[Held]{.underline}: Once a veteran raises a well grounded claim to which
a regulation could reasonably apply, the Board of Veterans Appeals must
apply that regulation or give the reasons and bases explaining why it is
not applicable.

[Facts]{.underline}: The appellant had been granted a 30% disability
rating for a left knee condition. In asserting a claim for an increased
rating, the appellant alleged his disability had increased due, in part,
to problems with his right knee which had developed as a result of his
left knee condition. While a rating decision referred to the right knee
condition, the regional office informed the veteran that there was no
change warranted in the 30% rating for his left knee; no mention was
made of the right knee condition. In expressing dissatisfaction with
this rating decision, the appellant made several references to his right
knee condition, including in his appeal to the Board. The Board\'s
decision made no reference to the right knee condition and affirmed the
30% rating for the left knee. The Court noted the Board\'s failure to
consider the regulation governing secondary service connection (38
C.F.R. 3.310(a). It characterized the Board\'s action as arbitrary,
capricious, an abuse of discretion and not in accordance with law. The
decision of the Board was vacated and the case was remanded with
instructions to consider the allegations concerning the right knee. The
Court also took issue with the Board\'s failure to adequately address
the complaints of the appellant with respect to the severity of his left
knee condition or to consider evidence presented by the appellant in
determining the proper rating for his disorder. The Court said the Board
must consider the appropriate regulations and give adequate reasons or
bases to support its ultimate determination.

[RECOMMENDED VA ACTION(S)]{.underline}:

Highlight this case in the Quarterly Training Letter.

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

[Approved]{.underline}?

[X ]{.underline} [ ]{.underline} [/s/  ]{.underline}
[10/28/91 ]{.underline}

Yes No J. Gary Hickman Date

[DECISION ASSESSMENT DOCUMENT]{.underline}

1\. [DOCKET NO.]{.underline}: 90-181

2\. [NAME]{.underline}: Hillyard v. Derwinski

3\. [ISSUE(S)]{.underline}: Precedent - Board of Veterans Appeals
Decision

4\. [DECISION/ACTION OF COURT]{.underline}:

[Action]{.underline} [Date Issued]{.underline}:

Remand [ ]{.underline}

Order [ ]{.underline}

Decision [X ]{.underline} July 8, 1991

[Held]{.underline}: 1. Previously issued Board decisions will be
considered binding only with regard to the specific case decided. Prior
decisions in other appeals may be considered to the extent that they
reasonably relate to the case. (Slip op. p. 4)

2\. Since each claim is fact specific and since, as a practical matter
Board of Veterans Appeals\' decisions are not indexed by topic, the only
value of the reasons or bases for Board decisions in other cases is as
argument in support of the appellant\'s claim. (Slip op. p. 4)

[Facts]{.underline}: The issue was whether the veteran\'s rating for
PTSD should be increased from 30% to 50%. This in turn depended mainly
on whether the veteran\'s social and industrial impairment was deemed to
be \"definite\" (entitling the veteran to a 30% evaluation) or
\"considerable\" (entitling him to a 50% evaluation). COVA determined
that VA had adequately documented its reasons for determining that the
veteran\'s impairment was only \"definite\" and that the decision was
not \"clearly erroneous.\" It affirmed the 30% evaluation.

[RECOMMENDED VA ACTION(S)]{.underline}:

Recommend adding a paragraph to the VBA Circular 21-91-18, \"Principles
of Adjudication\" emphasizing that it is perfectly proper for a
decisionmaker to come to a particular conclusion because he doesn\'t
believe certain evidence is credible or because he gives more weight to
some evidence than to other evidence.

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

[Approved]{.underline}?

[X ]{.underline} [ ]{.underline} [/s/  ]{.underline}
[10/28/91 ]{.underline}

Yes No J. Gary Hickman Date

[DECISION ASSESSMENT DOCUMENT]{.underline}

1\. [DOCKET NO.]{.underline}: 90-1137

2\. [NAME]{.underline}: Nagler v. Derwinski

3\. [ISSUE(S)]{.underline}: All Writs Act, Declaratory Judgment Act,
Fees - Attorneys, Representation, Jurisdiction

4\. [DECISION/ACTION OF COURT]{.underline}:

[Action]{.underline} [Date Issued]{.underline}:

Remand [ ]{.underline}

Order [ ]{.underline}

Decision [ ]{.underline}X[ ]{.underline} June 6, 1991

[Held]{.underline}: 1. The Court of Veterans Appeals may exercise either
original or appellate jurisdiction with respect to the review of fee
agreements, depending upon the circumstances and timing of a particular
appeal.

2\. The Court of Veterans Appeals appellate jurisdiction to review a fee
agreement arises under 38 U.S.C. 5904, formerly 3404 (which authorizes
the Court to review a finding or order of the Board with respect to a
fee agreement).

3\. The Court of Veterans Appeals has original jurisdiction to review a
fee agreement under 38 U.S.C. 7263, formerly 4063.

4\. The Court of Veterans Appeals has jurisdiction to consider a
petition seeking an extraordinary writ alleged to be necessary or
appropriate in aid of the Court\'s original and appellate jurisdiction
to review fee agreements. (28 U.S.C. 1651(a))

5\. To secure an extraordinary writ, a petitioner must show both (1)
that he or she is clearly entitled to the writ, and (2) that there is
available no adequate alternative means of obtaining the relief sought.

6\. The Board of Veterans Appeals is authorized to review a fee
arrangement only when there is representation before the VA or the Board
after a first final BVA decision. (38 U.S.C. 5904 (c)(2), formerly
3404(c)(2))

7\. When a review of a fee agreement is statutorily authorized, it is
appropriate and necessary that the Board of Veterans Appeals provide
notice to the claimant as well as to the claimant\'s attorney of its
intention to review a fee agreement and of its ultimate decision. (38
U.S.C. 5904(c)(2), formerly 3404(c)(2))

8\. Only after the proceedings have come to a close and the amount of
the fee is determined can there be an informed decision whether a
particular fee is, in fact, excessive or unreasonable under 38 U.S.C.
5904(c)(2), formerly 3404 (c)(2).

9\. The Court of Veterans Appeals does not have authority to issue
declaratory relief under the Declaratory Judgment Act, 28 U.S.C. 2201.

[Facts]{.underline}:

This is a joinder of two claims being handled by two separate attorneys.
In the Nagler case, the attorney filed a copy of his fee agreement with
the veteran with the BVA and the Portland ME VARO. The RO sent a letter
to the claimant questioning the representation and referred to the no
existing \$10 fee limitation. The attorney, Mr. Smith wrote to BVA
demanding a clarification of the letter suggesting the fee agreement was
illegal. BVA replied that it intended to review the fees on its own
motion per VJRA, PL 100-687. The attorney filed a motion on 12/18/90 for
extraordinary relief, with sanctions against the government. VA was
enjoined from acting until the Court settled the issues.

On February 25, 1991, appellant Jones and attorney Snyder filed a motion
to become parties. The attorney also had a fee agreement which BVA had
advised him they intended to review. The Court temporarily enjoined VA
from taking any action, pending filing of briefs and oral arguments.

COVA reviewed representation. A person representing a claimant after the
first final BVA decision must file a copy of the fee agreement, and if
representation is also before the court, must file with COVA. The Court
held that the authority to review fee agreements requires that there
must be an action before the BVA or VA after the first final BVA
decision, and there was none pending in this matter. When BVA has the
authority to review an agreement, it is appropriate for BVA to notify
both the attorney and client. However, premature review of fee
agreements may well interfere with the attorney-client relationship.

The Court also addressed RO contacts with claimants after notice of
representation. It noted obsolete forms were being sent and obsolete
legal advice communicated, and such communications were to be prevented.

[RECOMMENDED VA ACTION(S)]{.underline}:

Issue VBA Circular 20-91-19, \"Restriction on Certain Communications\".
In VBA Circular 21-91-18, \"Principles of Adjudication\", paragraph 7
include instructions on communications with claimants represented by
attorneys. Include instructions on attorney fee-agreements in M21-1.

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

[Approved]{.underline}?

[X ]{.underline} [ ]{.underline} [/s/  ]{.underline}
[11/25/91 ]{.underline}

Yes No J. Gary Hickman Date

[DECISION ASSESSMENT DOCUMENT]{.underline}

1\. [DOCKET NO.]{.underline}: 90-735

2\. [NAME]{.underline}: Baughman v. Derwinski

3\. [ISSUE(S)]{.underline}: Is service-connection granted when symptoms
of a disease are used in evaluating another disease?, Severance of
service connection

4\. [DECISION/ACTION OF COURT]{.underline}:

[Action]{.underline} [Date Issued]{.underline}:

Remand [X ]{.underline} November 13, 1991

Order [ ]{.underline}

Decision [ ]{.underline}

[Held]{.underline}: (1) When the rating board increased the veteran\'s
rating for rheumatic heart disease in 1986 on the basis of \"symptoms
related to the current ischemic heart disease\" as a matter of law it
granted service connection for ischemic heart disease.

\(2\) BVA erred in its conclusion of law that \"arteriosclerotic
cardiovascular and peripheral vascular disease with a right
above-the-knee amputation was not proximately due to or the result of
service-connected rheumatic heart disease.\"

\(3\) The Board did not, as a matter of law, sever the service
connection established by the rating decision of July 23, 1986, because
it did not afford the veteran the procedural safeguards established by
38 CFR 3.105(d) and it did not meet the burden of proof placed \"upon
the Government\" to demonstrate that the granting of service connection
was \"clearly and unmistakably erroneous.\"

[Facts]{.underline}: The veteran served from 4/12/43 to 7/7/43. He was
hospitalized from 5/9/43 to 6/28/43 for an acute exacerbation of a
preexisting rheumatic heart condition. On 10/7/43, service-connection
was established for in-service aggravation of rheumatic heart disease
evaluated as 10% disabling. On 7/23/86 evaluation was increased to 30%.
At that time, rating board resolved reasonable doubt and included
symptoms of ischemic heart disease with old inferior infarction in the
evaluation. In April 1988, the veteran had an above-the-knee amputation,
right. The rating board denied service-connection for arteriosclerotic
cardiovascular disease, peripheral vascular disease and the amputation.
The rating board found that evidence of record does not show any
recognized etiological relationship between sc rheumatic heart disease
and the later developing arteriosclerotic cardiovascular and peripheral
vascular disease. The board also found that there is no reported
relationship of the amputation to the sc rheumatic heart disease. BVA
upheld the denial stating that it had no comment as to the wisdom of the
characterization or the propriety of the rating which used the ischemic
heart disease symptoms to increase the evaluation for the sc rheumatic
heart disease.

In its decision the BVA recognized that a cause and effect relationship
existed between the arteriosclerotic cardiovascular disease, the
peripheral vascular disease and the amputation. During oral argument, VA
agreed that the ischemic heart disease is causally related to, if not
indeed identical to the arteriosclerotic cardiovascular disease which,
in turn led to the peripheral vascular disease and ultimately to the
amputation. Appellant argued that the rating which increased the
evaluation utilizing the symptoms of ischemic heart disease established
service connection for that disease and, once established, service
connection was not severed as required by 38 CFR 3.105(d).

COVA concluded that when the rating board increased the veteran\'s
rating for his rheumatic heart disease in 1986 on the basis of the
symptoms related to the ischemic heart disease, as a matter of law, it
granted service connection for that disease. It further held that the
service connection was not severed because the veteran was not afforded
the procedural safeguards established by regulation nor did it meet the
burden of proof placed upon the government to demonstrate that the
granting of service connection was clearly and unmistakably erroneous.
Therefore, service connection is in order for arteriosclerotic
cardiovascular and peripheral vascular disease with a right
above-the-knee amputation.

[RECOMMENDED VBA ACTION(S)]{.underline}:

Notify rating boards that every effort must be made to distinguish
symptomatology before evaluating a service connected rheumatic heart
disease. If symptoms cannot be satisfactorily dissociated, the holding
in this case must be considered and applied, unless or until it is
reversed on appeal. Notify regional offices that this decision does not
stand for the proposition that arteriosclerotic or ischemic heart
disease can result from rheumatic heart disease. An appeal is pending in
this case.

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

[Approved]{.underline}?

[X ]{.underline} [ ]{.underline} [/s/  ]{.underline} [12/2/91
 ]{.underline}

Yes No J. Gary Hickman Date

[NO RECOMMENDED ACTIONS]{.underline}

[1989 Cases]{.underline}

Docket Date of

[Number]{.underline} [Name]{.underline} [Decision]{.underline}

89-2 Cerullo 4/4/91

89-11 Rogozinski 5/29/90

89-13 Smith 3/15/91

89-14 Erspamer 2/23/90

89-16 Whitt 10/12/90

89-23 Mokal 3/9/90

89-31 Bagby 4/22/91

89-42 Robie 12/11/91

89-54 Doub 5/23/90

89-70 Bentley 9/13/90

89-72 Fugere 12/27/90

89-108 Green 1/18/91

89-141 Bledsoe 9/19/90

89-150 Skinner 1/29/90

89-161 Jolley 10/3/90

89-167 Frankel 8/17/90

89-182 Mense 7/10/91

[1990 Cases]{.underline}

90-7 Emperador 8/16/91

90-8 Hess 2/14/92

90-25 Fletcher 7/16/91

90-27 Willis 8/21/91

90-28 Cartright 12/17/91

90-30 Johnson 11/7/91

90-31 Meister 10/10/90

90-35 Kehoskie 12/17/91

90-53 Young 1/9/92

90-55 Lovelace 10/31/90

90-62 Spencer 1/18/91

90-80 Dougharity 4/26/91

90-81 Boyer 10/30/91

90-89 Breslow 7/11/91

90-96 Livingston 9/24/90

90-107 Murphy 11/8/90

90-122 Stokes 4/4/91

90-134 Orellana 6/27/91

90-144 Swille 5/15/91

90-147 Gleicher 12/17/91

90-178 Soyini 11/12/91

90-193 Branham 12/7/90

90-195 Magula 11/7/90

Docket Date of

[Number]{.underline} [Name]{.underline} [Decision]{.underline}

90-200 Sammarco 1/10/91

90-221 Myers 1/18/91

90-223 Hoyer 4/15/91

90-235 Smith 5/8/91

90-239 Thompson 5/23/91

90-251 Ohland 2/25/91

90-268 Webster 2/28/91

90-301 Brassell 9/18/91

90-305 Morris 5/24/91

90-306 Smith 5/24/91

90-313 Oppenheimer 7/25/91

90-333 Brannon 6/11/91

90-343 Martin 7/25/91

90-356 Wilson 2/8/91

90-370 Rosler 5/17/91

90-390 Akles 1/11/91

90-420 Satchel 5/23/91

90-432 Snow 8/12/91

90-444 Ferraro 6/24/91

90-463 Schaper 8/26/91

90-474 Goodman 5/39/91

90-498 Stone 1/6/92

90-543 Hunt 6/5/91

90-624 Smith 1/15/92

90-635 Smith 1/31/92

90-654 Godwin 8/19/91

90-673 Wilson 12/13/91

90-675 Hanson 10/16/91

90-705 Lichtenfels 10/2/91

90-733 Wilisch 2/12/92

90-760 Sagainza 11/20/91

90-830 Connolly 11/15/91

90-839 Collier 8/9/91

90-860 Cross 1/31/92

90-897 Corchado 3/5/91

90-917 Caldwell 10/31/91

90-944 Green 11/18/91

90-992 Mingo 1/3/92

90-995 Cousino 10/31/91

90-1002 Hohol 2/7/92

90-1953 Tobin 12/18/91

90-1098 Myler 11/19/91

90-1118 Sussex 10/18/91

90-1155 Citrin 1/15/92

90-1310 Verna 12/12/91

90-1346 Aronson 2/13/91

Docket Date of

[Number]{.underline} [Name]{.underline} [Decision]{.underline}

90-1466 Clark 2/7/92

90-1491 Martin 1/15/92

90-1499 Davis 1/24/92

90-1514 Williams 2/14/92

90-1519 Cherepanik 1/9/92

90-1538 Quinn 2/3/92

[1991 Cases]{.underline}

91-41 Dela Pena 1/3/92

91-80 Moore 2/19/82

91-386 Ashley 1/9/92

91-533 EF 12/6/90

91-855 Pruitt 1/14/92