CONTACTS
SUBJECTS
Benefit of the Doubt Rule Supreme Court Bubkin Case Requires Judicia
0803 -
0803 - ..
0804 - Summary/Objective
0805 -
080501 - Follow up ref SDS 95 0000. ref SDS 94 0000.
080502 -
080503 - [On 241031 1728 received letter from David saying simply
080504 - B&M's agreement to file the appeal does not require
080505 - claifying any aspects of their filing. ref SDS 96 G27G
080506 -
080507 -
080508 -
080509 -
080510 -
080511 -
080512 -
080514 - ..
0806 -
0807 -
0808 - Background
0809 -
080901 - On 100604 1520 received notice from VA dated 100525 granting award of
080902 - Pension benefits for total and permenant disibility (TAPD) citing CABG
080903 - and achalasia. ref SDS 3 RM9N
080905 - ..
080906 - On 210311 1012 letter to Lauren in Primary Care at VAMCSF, requesting
080907 - assistance resolving dispute pension dispute. ref SDS 10 WG54
080909 - ..
080910 - On 220726 101741 received letter dated 220714, from VA denying appeal
080911 - by Nathan Johnson to convert Pension claim on 091222, to compensation.
080912 - ref SDS 26 YT8L
080914 - ..
080915 - On 220728 0749 called Law Offices of Katrina Eable and left message
080916 - about this matter. ref SDS 27 I24L
080918 - ..
080919 - Only remedy seems to be filing...
080920 -
080921 - Appeal to Court of Appeals for Veterans Claims, and this must
080922 - be done OB 221111
080924 - ..
080925 - ...shown at bottom of VA order in the record on 220726 1017,
080926 - ref SDS 26 0K7L
080927 -
080929 - ..
080930 - On 220726 101741 sent letter to Nathan explaining errors in VA
080931 - decision, ref SDS 26 9Q8O,
080933 - ..
080934 - On 220726 101741 received letter from Nathan recommending calling
080935 - Katrina Eagle. ref SDS 26 EM9I
080937 - ..
080938 - On 220826 1522 Katrina Eagle called responding to the letter on
080939 - 220726. ref SDS 29 KB5N She submitted a letter with guidance on how to
080940 - submit notice of appeal to the VA Court of Appeals. ref SDS 30 ZP7M
080942 - ..
080943 - On 220922 0828 filed notice of appeal with Veterans Court of Appeals.
080944 - 220922 0828, ref SDS 32 KB5N
080946 - ..
080947 - On 230126 1022 called B&M talked to Yoon Park, who said the firm had
080948 - received claim documents from VA, ref SDS 55 8BDN Talked to Sarah
080949 - Burkey who said she will notify VA that B&M accepts the documents for
080950 - the purpose of filing an appeal. ref SDS 55 QF9G
080952 - ..
080953 - On 230623 0948 received principal brief from Sara at B&M appealing
080954 - disability compensation claim effective date to 091218. ref SDS 69
080955 - EQ4G
080957 - ..
080958 - On 230815 1527 letter from Sarah at B&M saying filing to increase
080959 - rating for medical disability compensation will not conflict with
080960 - litigation setting change compensation date to 091218. 230815 1527,
080961 - ref SDS 70 EQ4G
080962 -
080963 -
080964 -
080965 -
080966 -
080968 - ..
0810 -
0811 -
0812 - Progress
0813 -
081301 - Claim documents in this case were received from Nathan on 220830 1616.
081302 - ref SDS 31 FR9H
081304 - ..
081305 - See also letter on 220726 1017. ref SDS 26 ES52
081307 - ..
081308 - Most recent DBQ pending...
081309 -
081310 - F:\05\00003\MG\GPJF\FHED\IHD_exam_welch_amended_2024-08-18.pdf
081312 - ..
081313 - Proposed veteran statement as possible declaration was submitted to
081314 - David in the letter on 240826 0704. ref SDS 92 R473
081315 -
081317 - ..
081318 - Supreme Court heard a case on VA disability claims today. Reporting
081319 - citing widespread disappointment with VA jurisprudence. The issue is
081320 - whether the CAVC and Federal Circuit are merely "rubber stamping"
081321 - decisions that fail to give the veteran the "benefit of the doubt" on
081322 - matters of disability benefits....
081323 -
081324 - https://www.msn.com/en-us/health/other/supreme-court-to-weigh-veterans-disability-denials-affecting-untold-numbers-of-vets/ar-AA1smmVy
081326 - ..
081327 - The letter to B&M noted the CAVC decision was a mere "rubber stamp"
081328 - of the Board's decision, reported on...
081329 -
081330 - This case was first reviewed in USA Today...
081331 -
081332 - Supreme Court weighs veterans' disability denials, affecting
081333 - 'untold numbers' of vets
081334 -
081335 - Published 2024 10 16
081336 -
081337 - Research on Microsoft AI found:
081338 -
081339 - Yes, there is published guidance on the "benefit of the doubt"
081340 - rule favoring veterans, which was a key point in the Bufkin v.
081341 - McDonough case. The rule is codified in 38 U.S.C. § 5107(b), which
081342 - states that when there is an approximate balance of positive and
081343 - negative evidence regarding any issue material to the
081344 - determination of a matter, the Secretary of Veterans Affairs shall
081345 - give the benefit of the doubt to the claimant.
081346 -
081347 - The Veterans Judicial Review Act (VJRA) of 1988 formalized this
081348 - rule, and the Veterans Benefits Act of 2002 further emphasized the
081349 - responsibility of the Veterans Court to "take due account" of the
081350 - Secretary's application of this rule. This means that when the
081351 - evidence is in equipoise, the decision should favor the veteran.
081353 - ..
081354 - The Bufkin v. McDonough case specifically addresses whether the
081355 - U.S. Court of Appeals for Veterans Claims must ensure that the
081356 - benefit-of-the-doubt rule was properly applied during the claims
081357 - process.
081358 -
081360 - ..
081361 - Today, submitted letter to David Ames at B&M saying...
081362 -
081363 - 1. Subject: Bergmann & Moore LLC File Supplemental Claim for Compensation
081364 - Date: 2024-10-16, 17:16
081370 - ..
081371 - 2. Dear David,
081373 - ..
081374 - 3. Very sorry for delayed response to your letter on 240830, shown
081375 - below. I seem to be getting relapses of mini-strokes/seizures -
081376 - a strong neurological reaction following 6th cardiac ablation
081377 - in June. This caused loss of motor control, hallucinations,
081378 - fatigue, confusion, blackouts.
081380 - ..
081381 - Responds to David's letter received on 240830 1931. ref SDS 93 6S4O,
081382 - which responded to the letter submitted to David on 240826 0704,
081383 - ref SDS 92 R44K, and which included a proposed statement of facts.
081384 - 240826 0704, ref SDS 92 R473
081386 - ..
081387 - Letter to David at B&M continues...
081388 -
081389 - 4. Your letter responded to my letter dated 240826, which
081390 - submitted a possible statement and reviewed court decisions
081391 - that denied B&M's filing requesting an effective date for
081392 - compensation of 091222. The letter further posits possible
081393 - arguments on implied intent. Recall that B&M's letter dated
081394 - 240409, said to file a supplemental claim and submit a new
081395 - statement explaining I intended to apply for compensation in
081396 - 2009. This seems to conflict with CAVC decision filed 240327,
081397 - that found...
081398 -
081399 - [On 241031 1728 received letter from David saying simply
081400 - B&M's agreement to file the appeal does not require
081401 - claifying any aspects of their filing. ref SDS 96 G27G
081403 - ..
081404 - "In June 2010, the RO notified the veteran that he was granted
081405 - non-service-connected pension. The RO [...Regional Office...]
081406 - stated that its decision "represents all claims we understood
081407 - to be specifically made, implied, or inferred in that claim."
081408 - R. at 1297. The veteran did not appeal the RO's decision, and
081409 - it became final. For the next 12 years, he received monthly
081410 - nonservice-connected pension benefits. See R. at 87-89"
081412 - ..
081413 - 5. If "intent" was to apply for compensation, then when pension
081414 - was awarded on 100525, it should have been appealed at that
081415 - time. Therefore, B&M must explain how claiming intent for
081416 - compensation in the 091222 filing will avoid the same outcome
081417 - of denial.
081419 - ..
081420 - 6. Alternatively, the proposed statement submitted to B&M on
081421 - 240826, advocates that the fact of being shown on 091218 in a
081422 - Va hospital only page 5, to sign for disability benefits, 2
081423 - days after laparoscopic throat surgery, and being told benefits
081424 - are needed because social security is not enough to live in the
081425 - Bay Area, withheld knowledge of choices for pension and
081426 - compensation on page 1. This failure to disclose information
081427 - material to obtaining signature of a patient under care in a
081428 - hospital conveyed implied intent to obtain benefits intended by
081429 - Congress based on patient medical and military records, which
081430 - together qualify only for compensation, and not for pension.
081431 - VA's flawed data exchange with Social Security hid this from
081432 - the VA for 10 years, just as failure to disclose choices on
081433 - page 1, hid from the patient for 10 years that the application
081434 - should have checked compensation. Since a supplemental claim
081435 - was filed to switch pension to compensation immediately upon
081436 - notice on 210602, that choices for pension and compensation
081437 - were shown on page 1, the appeal was timely after the original
081438 - failure to disclose was cured.
081440 - ..
081441 - 7. B&M has a continuing duty from litigating this issue to provide
081442 - guidance on whether this line of evidence might cure the
081443 - court's reluctance to award compensation effective the date of
081444 - the original filing on 091222, and/or what other facts should
081445 - be provided in the supplemental filing.
081447 - ..
081448 - 8. Of course, I want to follow advice in your letter on 240829, to
081449 - discuss with a VSO arguments and evidence for submitting a
081450 - supplemental claim. As you know there have been 3 filings by
081451 - VSOs in this case. There has never been discussion of
081452 - arguments and evidence on any of the 3 filings. The process
081453 - offered no opportunity for discussion.
081455 - ..
081456 - This responds to David's letter on 240830 1931. ref SDS 93 6S4O
081458 - ..
081459 - Letter to David at B&M continues...
081460 -
081461 - 9. The first VSO woke me in the hospital to sign the original
081462 - filing on 091218. I thought it was a standard hospital
081463 - procedure and signed where told and went back to sleep, like
081464 - usual. The second filing 12 years later on 210602, was a 10
081465 - minute video call. The VSO called and said he prepared an
081466 - amended filing that switched Pension to Compensation and
081467 - requested my signature. This was the first I was aware of
081468 - Pension and Compensation. I signed the form on the computer
081469 - screen. There was no discussion of arguments nor evidence.
081470 - The third filing was made entirely by the VSO, who called on
081471 - 220309, and advised the VA requested another filing, and it was
081472 - submitted with the VSO's signature alone; so, I knew nothing
081473 - about it. Thus, there is no record of VSOs ever discussing nor
081474 - revealing arguments and evidence to me. They filled out forms
081475 - and submitted them to the VA. Accordingly, I have no experience
081476 - on steps for discussing arguments and evidence with VSOs.
081478 - ..
081479 - 10. The letter on 240826 is asking B&M if the initial effort
081480 - drafting a statement of facts, as recommended by B&M, helps the
081481 - VA understand a complex case, based on B&M's experience with
081482 - the appeal. I expect the statement would not include legal
081483 - analysis. It should end with the award of pension in May 2010,
081484 - and efforts to switch pension to compensation on 210602.
081485 - Possibly should include the list of medical expenses - need
081486 - B&M's guidance on this.
081488 - ..
081489 - 11. B&M's support is needed, because this case is unusual.
081491 - ..
081492 - 12. In a call on 231201, Sarah advised that the CAVC judge who
081493 - presided at the settlement conference said he had never heard
081494 - of a disability benefits claim being signed in a VA hospital.
081495 - The lawyer representing the VA made the same comment. Sarah
081496 - said that after the meeting, she queried lawyers at B&M and
081497 - other firms. Nobody had heard of a similar case, thus Welch is
081498 - unusual and requires expert guidance, which B&M can provide as
081499 - a result of spending 2 years working the case.
081501 - ..
081502 - 13. The main issue is that "intent" signing documents in a hospital
081503 - does not convey acceptance of what is entered in the document.
081504 - Hospital records routinely have errors because work is
081505 - performed under duress of limited time. Signature is not
081506 - agreement that everything is correct nor complete, but rather
081507 - that whatever is done, an examination, a surgery, will be done
081508 - to the patient's advantage. Since patients rarely see anything
081509 - in documents signed in the hospital, patients must rely on good
081510 - faith performance by the professionals. Thus, if consent for
081511 - surgery shows a check mark to amputate the left leg, amputating
081512 - the left leg cannot be defended claiming patient intent, despite
081513 - the fact the left leg was perfectly healthy, and the right leg
081514 - showed evidence that required amputation. B&M can provide
081515 - guidance on presenting evidence that overcomes the VA's focus
081516 - on "intent" in the appeals court decision. Do we need a
081517 - statement from the hospital on this point?
081519 - ..
081520 - 14. B&M's letter dated 240409, said the next supplemental claim
081521 - should cite the VSO training guide. It says on page 9...
081523 - ..
081524 - "On October 13, 2009, the VA announced Secretary Shinsekiā's
081525 - decision to establish presumptive service connection for
081526 - ...exposure to herbicides used in Vietnam... and ischemic heart
081527 - disease. A proposed rule adding ...to VA's list of presumptive
081528 - diseases was published in the Federal Register on March 25,
081529 - 2010, 75 Fed. Reg. 14,391."
081531 - ..
081532 - 15. The date 091013 was a week before my CABGx4 surgery on 091022.
081533 - Recall you cited the 100325 publication in the Federal Register
081534 - in your letter on 221019, explaining authority for the VA to
081535 - treat my claim filled out for pension, as a claim for
081536 - compensation.
081538 - ..
081539 - 16. B&M's letter on 240409, said the VSO should include in a
081540 - supplemental claim - cut and paste this...
081542 - ..
081543 - "...a copy of the VBA Nehmer Training Guide (...send page 21).
081544 - On page 21, the training guide says that Nehmer is an
081545 - appropriate circumstance for VA to treat a claim for pension as
081546 - a claim for compensation. ...The training guide isn't binding
081547 - on the Board, but it's something that may be helpful."
081548 -
081550 - ..
081551 - 17. The Nehmer Training Guide says...
081552 -
081553 - "Live pension claims must be treated as SC claims (See Example 5)
081555 - ..
081556 - Under 38 C.F.R. +§ 3.15 (a), ā¬Sa claim by a Veteran for pension may
081557 - be considered to be a claim for compensation.ā¬ż VA is not required
081558 - by law to treat a Veteranā¬"s claim for pension as a claim for
081559 - compensation, see Stewart v. Brown, 10 Vet. App. 15, 18 (1997),
081560 - but may do so in appropriate circumstances. Nehmer is an
081561 - appropriate circumstance"
081562 -
081564 - ..
081565 - 18. This training guidance reflects...
081566 -
081567 - 3.151 Claims for disability benefits.
081568 -
081569 - a. General. A specific claim in the form prescribed by the
081570 - Secretary must be filed in order for benefits to be paid to
081571 - any individual under the laws administered by VA. (38
081572 - U.S.C. 5101(a)). A claim by a veteran for compensation may
081573 - be considered to be a claim for pension; and a claim by a
081574 - veteran for pension may be considered to be a claim for
081575 - compensation. The greater benefit will be awarded, unless
081576 - the claimant specifically elects the lesser benefit. (See
081577 - scope of claim, +§ 3.155(d)(2); complete claim, +§
081578 - 3.160(a); supplemental claims, +§ 3.2501(b))."
081580 - ..
081581 - 19. This is the loop cited by the Board and CAVC, specifically
081582 - noting Pension checked on page 1, and compensation section not
081583 - checked for exposure to agent orange together implies "intent"
081584 - to elect pension, i.e., the lesser benefit.
081586 - ..
081587 - 20. B&M's letter dated 230331 said in part...
081588 -
081589 - "I am extremely limited by the Record Before the Agency when
081590 - presenting the facts of this case and when advancing arguments
081591 - in the Brief. Again, as we have discussed, the record is
081592 - considered "closed" at this point in the proceedings and I
081593 - cannot advance any new factual arguments... For example, I
081594 - know that you were only shown the last page of the Application
081595 - for Compensation and/or Pension and that this document was not
081596 - discussed with you. However, I am not allowed to make these
081597 - assertions as you did not present these facts to either VA or
081598 - the Board in either a written statement or through hearing
081599 - testimony."
081601 - ..
081602 - 21. Your letter on 221216 explained B&M has a formal relationship
081603 - providing training and guidance to Calvet (AMVETS). Since the
081604 - Welch case is unusual, B&M guidance is needed more than ever to
081605 - avoid confusion on what additional facts should be submitted
081606 - noted in Sarah's 230331 letter. B&M's letter on 240409, saying
081607 - to "cut and past" a quote from the VSO training guide on
081608 - Nehmer, should be clarified on where to paste the quote.
081610 - ..
081611 - 22. Additionally, AMVETS (Calvet) said in a call on 240601, that
081612 - they transferred my case to Disabled American Veterans (DAV).
081613 - This was confirmed in a letter to DAV dated 240621, with copy
081614 - to you. Since I have not heard anything from DAV, can you
081615 - please let me know if I should continue to file a supplemental
081616 - claim with DAV or ask Calvet to take the case that benefits
081617 - from B&M's training and guidance? Can you provide guidance to
081618 - DAV as well?
081620 - ..
081621 - 23. The best solution would be for B&M to file the supplemental
081622 - claim. This avoids the burden of training and guidance, and
081623 - the risk of confusion, since B&M knows what needs to be done,
081624 - per Sarah's 230331 letter. In the alternative please help get
081625 - the case back to Calvet, and alert them the case is complex,
081626 - and that you will provide needed support.
081628 - ..
081629 - 24. Thanks for careful consideration.
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