The Court in Wise v. Shinseki, No. 12-2764 (Vet. App. Apr. 16, 2014), held that (1) the VA does not satisfy its duty to assist a claimant if they fail to locate and obtain records when the VA is on notice that records supporting a claim may exist, and (2) the benefit-of-the-doubt-rule applies to secondary medical evidence such as treatises and medical journals.
George W. Wise was a U.S. Army World War II veteran
For his distinguished service from the beaches of Normandy, through the Ardennes, Rhineland, and central Europe, he was awarded the Bronze Star, the European-African-Middle Eastern Campaign Medal, and the World War II Victory Medal. Mr. Wise treated and evacuated soldiers at the Battle of the Bulge and helped liberate several German concentration camps, including Dachau, Buchenwald, and Landsberg.
In 1985, Mr. Wise was granted service connection for post-traumatic stress disorder (“PTSD”), at a rating of 10%. The rating was increased to 30% in 1989 and 100% in 2000. He passed away in 2008, survived by his wife, Ouida Wise. His death certificate lists his cause of death as cardiovascular disease, congestive heart failure, and chronic obstructive pulmonary disease. None of these conditions were referred to in his service medical records.
Mrs. Wise filed a claim for dependency and indemnity compensation (“DIC”) benefits from the Department of Veterans Affairs (“VA”) in December 2008, submitting a letter from her late husband’s VA treating physician stating that it was possible that Mr. Wise’s death was brought on in part by the stress from his PTSD. The physician’s opinion included an article from a 2007 medical journal which discussed that male veterans with PTSD were more likely to develop coronary heart disease. The VA Regional Office (“RO”) denied the claim, which Mrs. Wise appealed through the Board for Veterans Appeals (“BVA”) up to the U.S. Court of Appeals for Veterans Claims (CAVC). During this process, Mrs. Wise submitted numerous articles from journals and off of the Internet which supported to a certain degree the claim that PTSD could increase a man’s chances of contracted coronary artery disease. The VA did not obtain any records of Mr. Wise’s VA cardiology appointments. The VA’s expert, who was a VA medical professional, stated that accepting PTSD as a causal factor for coronary artery disease is speculative and not generally accepted in the scientific community. Relying on its expert, the VA rejected Mrs. Wise’s evidence that PTSD could be a causal factor in heart disease.
The Court’s Decision
The CAVC held that the VA does not satisfy its duty to assist a claimant if they fail to locate and obtain records when the VA is on notice that records supporting a claim may exist. The Court held that the BVA must “support its determination that VA satisfied its duty to assist with an adequate statement of reasons or bases.” In this particular case, the VA did not obtain the medical records for many of Mr. Wise’s VA cardiology appointments. This is important because many times the VA denies a claim because the veteran did not submit enough evidence to support either a current diagnosis of a condition or he or she does not submit enough evidence to show that the condition was caused or aggravated while in service. If the claimant put the VA on reasonable notice that the records exist, it is the VA’s duty to locate and obtain these records at the expense of the VA. A failure of the VA to do so could result in the VA failing to satisfy its duty to assist the claimant.
In a welcome move, the CAVC held that the BVA cannot reject scientific evidence on the grounds that it is not yet ‘generally accepted’ in the scientific community. The Court held that this directly goes against the benefit of the doubt rule. “[C]ontradicting articles indicate that the evidence on that issue may be in approximate balance, triggering the Board’s statutory duty to accord Mrs. Wise the benefit of the doubt.” The benefit-of-the-doubt-rule, detailed in 38 CFR § 3.102, states that “[w]hen, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim.”
If you need help with your claim, let an experienced Veterans Affairs attorney at Grimes Teich Anderson assist you in receiving a proper evaluation by the VA. If the VA is unable to properly evaluate a claim, we are experienced in, and can represent you, before the U.S. Court of Appeals for Veterans Claims (CAVC).