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

August 6, 1992

Good Morning everyone. Welcome to our monthly conference call on
Judicial Review. We have a pretty long list of cases this month. You
should have received your listing and summary of the agenda. Next month,
at the AO Conference, we intend to talk with you about COVA, and we will
have representatives, if not the General Counsel, representative from
the General Counsel and from the Board of Veterans Appeal, so we hope
you bring questions next month. That\'s all I have this morning. To
start you off, I will now turn the microphone over to the Judicial
Review Staff.

Thanks. Just a reminder. The \"Hotline\" scheduled for September 3rd has
been canceled because of the AO\'s Conference. We will send out a
Decision Assessment Package on or about August 27th, and will discuss it
during the next conference call which is scheduled for October 1st.

**[Decision Assessment Package]{.underline}**

Good Morning everyone.

Copies of last month\'s decision assessment documents recommending
changes in policy, regulations, or procedures, and those raising
significant points by the Court were E-mailed to all Regional Offices on
July 31, 1992. The package contained 9 assessment documents, all
involving Court decisions.

The Court cases are:

**[Roberts v. Derwinski]{.underline}, U.S. Vet. App. 90-606.** The Court
held that before a permanent disability rating can be awarded, an
evaluation must be performed under the Schedule for Rating Disabilities
to determine the percentage of impairment caused by each disability.

**[Fluharty v. Derwinski]{.underline}, U.S. Vet. App. 90-676.** The
Court held that when new and material evidence is submitted in a claim
for individual unemployability, the two-step analysis stated in **[Manio
v. Derwinski]{.underline}, U.S. Vet. App. 140 (1991),** must be adhered
to.

**[Abernathy v. Derwinski]{.underline}, U.S. Vet. App. 90-1068.** In
this case, the Court held that the Board of Veterans Appeals must
perform a **[Manio]{.underline}** two-step analysis when a veteran seeks
to reopen a pension claim based on new evidence. The Court also found
that the Board erred in accepting as adequate an examination which
deferred diagnoses pending a review of the claims file.

**[Brown v. Derwinski]{.underline}, U.S. Vet. App. 90-505.** There were
two holdings in this case: (1) Although VA pension regulations are
confusing, they are consistent with the relevant statute, and (2) In
decisions concerning denial of entitlement to NSC pension benefits, a
percentage of impairment attributable to each specific disability must
be assigned. If a confirmed and continued rating decision is used, there
can be no new disability or disease identified in the records, and there
must have been no change in the evaluations of prior coded disabilities.
The Service will undertake a review of the pertinent regulations to
determine where revisions are in order. We welcome your input.

**[Conley v. Derwinski]{.underline}, U.S. Vet. App. 91-527.** In this
decision, the Court held that, (1) in order for there to be service
connection for any condition, there must be evidence both of a
service-connected disease or injury and a present ratable disability
which is attributable to such disease or injury, and (2) because
diagnostic code 7101 in the rating schedule does not provide for a
zero-percent rating and does not require residuals, a zero-percent
rating for hypertension is not authorized.

I have more decision assessments, but will break here for questions on
any of the preceding.

If there are no questions I will continue.

**[Sheets v. Derwinski]{.underline}, U.S. Vet. App. 90-709.** In this
case, the Court held that, (1) under the provisions of 38 U.S.C. §
1154(b) and 38 CFR § 3.304(d), satisfactory lay evidence alone will be
accepted as sufficient proof of service connection for a combat veteran,
and that these provisions do not allow the conclusion that simply
because lay evidence is unsupported by clinical records it is therefore
insufficient as a basis upon which to justify service connection; (2)
under the provisions of 38 CFR § 3.302(b)(2), the law requires that the
act of suicide be considered a result of mental unsoundness in the
absence of a reasonable adequate motive for suicide. The court also held
that BVA failed in its duty to assist by not seeking an advisory medical
opinion concerning the relationship between the veteran\'s combat
experience, his behavior, and his death on the one hand, and the causes
and symptoms associated with PTSD on the other.

**[Bethea v. Derwinski]{.underline}, U.S. Vet. App. 91-914.** This
decision involves a jurisdictional issue wherein the Court held that a
single-judge decision is not binding in another case before a single
judge or panel. It was also held that only the en banc Court may
overturn a panel decision, and that a panel or single judge may not
render an opinion which conflicts materially with a prior panel or en
banc decision.

**[Mason v. Derwinski]{.underline}, U.S. Vet. App. 91-482.** The Court
held that this case should not have been reopened due to lack of new and
material evidence. Service connection for an acquired psychiatric
disorder had been previously denied on several occasions. Appellant
submitted evidence in the form of his personal testimony, buddy
statements, a private physician\'s statement which expanded on his prior
statement, and a VA physician\'s statement not previously of record. The
Court concluded that evidence submitted was not new and material and the
claim should not have been reopened. One member dissented, finding the
private physician\'s opinion and the VA psychiatrist\'s opinion to be
new.

**[Ashley v. Derwinski]{.underline}, U.S. Vet. App. 91-386.** There were
two Court holdings in this case: (1) Under the plain language of 38
U.S.C. § 7104(e), the written BVA decision must be mailed to both the
claimant and the claimant\'s representative, and (2) the fact of
non-receipt of a mailed item, standing alone, is not the type of clear
evidence to the contrary which is sufficient to rebut the presumption
that officials and employees of the BVA properly discharged their
official duties.

Are there any questions?

**[LITTLE ROCK:]{.underline}**

What are we to do, in the **[Conley]{.underline}** case, if the rating
schedule does not provide for a zero percent disability and we\'re
evaluating things at this time?

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

After review of the decision assessment document in
**[Conley]{.underline},** questions have been received from several
regional offices concerning the establishment of service-connection for
hypertension evaluated at zero percent disabling under diagnostic code
7l0l. We have undertaken a review of the regulations and will amend them
as needed to note the applicability of the zero percent evaluations
under all diagnostic codes. There should be no change in current rating
board procedures.

**[WINSTON-SALEM:]{.underline}**

Does not the requirement of a blood pressure reading at a certain level
indicate a required residual?

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

I would say that\'s a question which has not been answered or addressed
one way or another. Whether a one hundred diastolic is residual as such
or just a diagnostic tool for evaluating the severity of hypertension or
diagnosing hypertension\....

**[WINSTON-SALEM]{.underline}**

I\'m sorry we did not hear that, you are breaking up.

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

Again I would say that a diastolic blood pressure reading of one hundred
is - I don\'t believe we\'ve determined or discussed here whether we
would consider this a residual or merely a diagnostic means of
evaluating the severity of hypertension.

Did you get that?

**[WINSTON-SALEM:]{.underline}**

I got it but I don\'t agree with it.

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

We will think about the question and answer and if we want to expand
upon it we will do so in the transcript. Any other questions? (Please
see the addendum to the transcript for further information on this
topic.)

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

I think you mentioned that we are not to really change our procedures
based on the **[Conley]{.underline}** decision. How can we do that? I
thought once the court ruled, unless we appealed, we have to enact what
they say.

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

We gave consideration to that and we will try to take into account the
concept that we do have to act. However, for the time being, do continue
to follow procedure.

(Note: Additional guidance was issued following subsequent VACO
discussion. Interim instructions based on **[Conley]{.underline}** are
contained in a letter (2-93) approved by the Director, Compensation and
Pension Service, which has been released concurrently. In addition, two
related questions are addressed in the addendum to this transcript.)

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

That procedure is to rate zero percent if it comes up?

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

Yes. Clearly do that. We will take a look at the regs and see, not if we
are going to change them but how we are going to change them. If you
have an instance where you are unclear as to whether zero percent is
applicable, give us a call.

**[LITTLE ROCK:]{.underline}**

This is Little Rock again.

From the controversial **[Conley]{.underline}** case which is obviously
going to create some problems for us out here in the field, the
**[Sheets]{.underline}** case: in a Court analysis, BVA paraphrasing the
law misstated the law. To start all our statements of the case verbatim
from the CFR\'s\....

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

You broke up a little bit. I didn\'t quite catch your question.

**[LITTLE ROCK:]{.underline}**

BVA paraphrased a law which the court said they misstated. Are we
required to give the verbatim reading of the law from the CFR in our
statements for the case.

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

Yes. There will be a change out, when the chapter 8, I believe it is, to
M21-l, Part IV, is released on Statements of the Case, requiring that
the 38 CFR and the underlying law itself be quoted verbatim.

**[LITTLE ROCK]{.underline}:**

I believe I brought this issue up a couple of months ago with the C&P
Staff and they said that they did not foresee this, and we are using
packages which are obviously out of date. Is Central Office going to
provide us with processing documents to quote the law verbatim?

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

What kind of processing documents are you looking for?

**[LITTLE ROCK:]{.underline}**

Many months ago, Central Office was going to provide a package that BVA
used in citing the law, which was never put out. We do not have the law
quoted in any type of word processing document. That means that we are
going to have to prepare these on a local level, if Central Office does
not provide these to us.

**[DEPUTY CIRECTOR, S&P SERVICE:]{.underline}**

I must say that I am not familiar with the package that you are
referring to, but we\'ll check it. If it is possible we will get one
out. Some of the folks here seem to have a vague recollection of this
topic, but we\'ll get back to you.

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

Any more questions? If there are no further questions we will discuss a
question which was E-mailed from the field.

**[Development of Evidence]{.underline}**

In the case of **[Gobber v. Derwinski]{.underline}, U.S. Vet. App. No.
91-802,** the Court addressed VA duty-to-assist obligations with respect
to development of documents. The Court held that this duty is limited to
specifically identified records which, by their description, would be
facilely relevant and material to the claim. The questions presented
concerning this holding are twofold.

Firstly, is there [no]{.underline} duty to assist in the development of
an apparently irrelevant record, such as a current hospital summary in a
claim involving service connection?

Secondly, is there any difference in how a case should be handled, if
the claimant merely indicates existence of a record but does not
specifically ask that the VA obtain it?

VA duty-to-assist obligations generally include development of all
relevant evidence **([Murphy v. Derwinski]{.underline}, 1 Vet. App. 78
(1990)),** and the VA must seek to obtain pertinent records when
notified of their existence **([Murincsak v. Derwinski]{.underline},
U.S. Vet. App. No. 90-222 (4/24/92)).** There is no difference in the
underlying statutory requirements for development based on whether or
not the claimant specifically requests VA assistance.

Concerning the first question, VA duty-to-assist obligations presuppose
submission of a plausible claim, which is either intrinsically
meritorious or capable of substantiation **([Gilbert v.
Derwinski]{.underline}, 1 Vet. App. 49 (1990)).**

While the Court has further elaborated its views in
**[Gobber]{.underline},** concerning what constitutes a well-grounded
claim, it has not modified the general requirement that all relevant
records be obtained once such a claim has been filed.

It is instructive to note that the **[Gobber]{.underline}** case
actually resulted in a Court Remand for development of the record in
question. Service connection had been previously denied for hearing
loss, which was not shown on VA examination after service, and the issue
involved reopening based on a purported service audiogram. While the BVA
had asserted that the military audiogram was not determinative of the
issue, the Court indicated that it would warrant reopening of the claim
if authenticated.

Whether or not a particular piece of evidence will be considered
relevant by a reviewing authority involves forecasting probable
appellate and judicial opinion. Thus far, the Court has generally held,
as in **[Gobber]{.underline},** that the Department erred by not
obtaining potentially relevant evidence.

In the hypothetical case presented by the questioner, VA cannot
categorically exclude the potential relevance of a current summary in a
claim for service connection. There may well be relevant history,
medical opinions, or diagnostic conclusions bearing on the issue, the
value of which cannot be judged in advance of review.

Accordingly, it is the opinion of the Service that all evidence should
be fully developed once a claim has been submitted. By so doing,
Regional Offices will avoid possible errors of underdevelopment, where
the claim was in fact plausible and the evidence arguably pertinent. On
the other hand, any errors of overdevelopment, involving either
implausible claims or irrelevant evidence, are likely to be few in
number and, if they lead to disallowances, the disallowances are more
likely to be sustained.

In conclusion, Regional Offices should assist applicants with the
development of evidence in support of claim even though (1) particular
records may prove to be irrelevant and (2) whether or not there is a
specific request for such assistance.

Are there any further questions from the field.

If there are no further questions, we\'re done. Thank you very much. See
you at the AO Conference.

**ADDENDUM TO HOTLINE TRANSCRIPT**

Q: If the Court of Veterans Appeals has ruled that the zero percent
evaluation for hypertension is not authorized, what may rating boards
use as their authority for deviating from the Court\'s decision?

A: The Court has invited supplemental briefing on the issue of service
connection evaluated as zero percent. General Counsel will be notifying
the Court that VA\'s position is that service connection IS appropriate
for noncompensable disabilities. Because there is no final word from the
Court on the issue, VBA is well within its authority to advise the field
to continue to assign noncompensable ratings. An interim instruction
letter will be sent in the near future.

Q: The court analysis states that \"Because the rating schedule for
hypertension (DC 7101) does not provide for a zero-percent rating and
does not require residuals, a zero-percent rating is not authorized.\"
38 CFR 4.31 states that a no-percent evaluation will be assigned when
the required residuals are not shown, in cases where the minimum
schedular evaluation requires residuals and the schedule does not
provide a no-percent evaluation. Does the COVA finding mean that we are
now prevented from applying the provisions of 38 CFR 4.31, or that we
must be sure to cite it in our SOCs as a basis for assignment of
zero-percent evaluations when the schedule does not provide for it?

A: Application of the provisions of 38 CFR \_4.31 should continue. It is
appropriate for a rating board to establish service connection and
assign a zero percent evaluation when there are any residuals of a
disease or injury but such residuals do not meet the criteria for the
minimum evaluation cited under the applicable diagnostic code. It may be
appropriate to cite 38 CFR \_4.31 in an SOC when the issue is the
\"evaluation\" of a service connected condition. It would be appropriate
to cite the regulation as the authority for the zero percent evaluation.