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DECISIONS FAVOR VETS.

Hensley v. West

On May 12, the United States Court of Appeals for the Federal Circuit issued its opinion in the appeal Hensley v. West. This is potentially an important decision for veterans and other claimants for Department of Veterans Affairs (VA) benefits. Hensley may help more claimants receive additional assistance from VA in developing their claims by lessening the preliminary evidence requirements imposed as a condition precedent to receiving that help.

In Hensley, the Federal Circuit identified the following adjudication principles as controlling VA's adjudication process with respect to well-grounded claims:

1 The amount of evidence a claimant must submit in order to have filed a well-grounded claim is "low."

2 A well-grounded claim "need only be `plausible' or `capable of substantiation,'" and a claim that is not well-grounded is one that is completely "implausible."

3 In "assessing whether the veteran has met the requisite threshold ... VA must construe all facts, make all inferences, and apply all presumptions in favor of the veteran."

4 The agency must resolve issues of doubt in favor of the veteran.

5 Veterans can rely on medical-treatise evidence to establish a "nexus" between a claimed disability and military service and need not file a medical opinion to establish the existence of a "nexus" between the claimed disability and military service.

6 Once a well-grounded claim is filed, VA must assist fully in developing it.

Hensley appears to lessen a claimant's evidentiary burden to establish existence of a well-grounded claim. Once a veteran's claim is well-grounded, VA must help develop it. Under the opinion, more veterans are entitled to agency assistance. This should result in more claimants receiving VA benefits.

The Maggitt Decision

Before veterans can seek judicial review of adverse VA-benefit decisions, they must first seek administrative review by the Board of Veterans' Appeals (BVA). If BVA issues an adverse decision, claimants may then appeal to the United States Court of Appeals for Veterans Claims (CAVC).

In Maggitt, CAVC declined to consider two new legal arguments presented by the veteran's lawyer and affirmed the BVA decision because the legal arguments were not raised to BVA. The Federal Circuit reversed CAVC and remanded the appeal to the court for additional judicial proceedings.

In this case, the Federal Circuit addressed whether CAVC had authority to consider legal issues the veteran had not presented to BVA. The Federal Circuit held that CAVC did have this authority.

The Court decided a VA claimant does not automatically waive the right to judicial review over a legal issue if he or she did not present the legal issue to BVA. The Court said that while CAVC has authority to consider new legal issues, it is not obligated to do so in every instance. According to the Federal Circuit, this determination involves an evaluation of the veteran's and VA's relative positions and the nature of the new legal issues the veteran presents to CAVC.

After the VA regional office denied Maggitt reopening of several disability claims, he filed an administrative appeal to BVA. When BVA denied his appeal, he filed a notice of appeal with CAVC. In Maggitt's judicial appeal, PVA provided him with a lawyer to prosecute his appeal to CAVC.

Maggitt's lawyer presented CAVC with two legal issues that had not been presented to BVA: (1) that the failure of the VA regional office to cite Maggitt's attention to pertinent decisions of CAVC violated his right to due process, and (2) the agency improperly repealed two regulations permitting the BVA chairman to grant an "administrative allowance" without following proper rulemaking procedure.

In reversing the CAVC finding that it did not have authority to consider Maggitt's legal issues, the Federal Circuit noted that the "exhaustion" doctrine is usually found in an agency's governing statute. The Court observed that since VA statutes do not contain an exhaustion requirement, CAVC erred in imposing one. The Federal Circuit remanded the appeal to CAVC to determine whether, in the exercise of its sound discretion, it should consider the legal issues presented by Maggitt.

The Maggitt decision is an important one for veterans. It ensures that legal issues identified by a veteran's lawyer at CAVC will not be summarily dismissed by the court because the veteran did not present them to BVA. By holding that CAVC has jurisdiction to consider legal issues not raised before the agency or BVA, the Maggitt decision will help assure that veterans' claims receive thorough judicial review. CAVC now knows it has authority to consider newly presented legal issues in association with a veteran's appeal.

Maggitt may also result in CAVC's remanding many more appeals to BVA for additional fact-finding and adjudication. CAVC is an appellate tribunal. Therefore, it may be inappropriate for it to decide, in the first instance, any factual or legal issues the agency has not considered, developed, and decided.

This case helps preserve the informal nature of VA's adjudication system; it will result in more remands to the agency for additional fact-finding and adjudication, which may result in more veterans receiving VA benefits. And it functions to ensure that veterans' claims will receive CAVC's searching judicial review.

LAWRENCE B. HAGEL, ESQ. General Counsel
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Title Annotation:latest court decisions
Author:HAGEL, LAWRENCE B.
Publication:PN - Paraplegia News
Geographic Code:1USA
Date:Oct 1, 2000
Words:857
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